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Saturday, September 09, 2017

It’s Not Optional, Stupid

I’m involved in several Section 106 cases – that is, project reviews under Section 106 of the National Historic Preservation Act – in which federal agencies (or the project proponents who very often stand in for them) have declined to consider the possible eligibility of traditional cultural places (TCPs) for the National Register of Historic Places (NRHP). They generally excuse their lassitude by saying that it’s just too challenging or complex or demanding of thought to consider such places.

I just want to say to such folks – and to the State Historic Preservation Officers (SHPOs) and Tribal Historic Preservation Officers (THPOs) who may be flim-flammed by them – that it’s not optional, stupid.

The Section 106 regulations, at 36 CFR §800.4(c)(1), say:

….the agency official shall apply the National Register criteria … to properties identified within the area of potential effects that have not been previously evaluated for National Register eligibility.

Now, granted, it doesn’t say all properties – and there’s a pragmatic reason for that. Nobody can ever be sure they’ve even found all the properties in a given project’s area of potential effects that might be eligible for the NRHP. But for pity’s sake, the regulations also don’t say “apply the criteria only to those properties you find convenient.”

In each of the cases with which I’m currently dealing, one or more consulting parties have asserted that the place in question is an NRHP-eligible TCP, and in most cases they’ve put forward a good deal of evidence. As I read the regulations, these are clearly places to which the responsible (sic) federal agency must apply the NRHP criteria, in consultation with the SHPO and – if they’re exercising due diligence – other consulting parties. The agency may apply them poorly, stupidly, misguidedly or under the influence of politics, money, or drugs, but it is not permitted just to say “oh, that’s too hard so I won’t do it.”

I think the confusion on this point may arise from the fact that an agency is permitted to defer nominating a place under its jurisdiction to the NRHP – that is, filling out all the paperwork and formally proposing that it be solemnly inscribed in the list for ever and ever, world without end. But read my digits, people, determining eligibility and nomination are not the same animals! They’re done for different reasons, in different management contexts. Any agency historic preservation person ought to know that; any SHPO or THPO ought to know that. It’s absurd that this should even be an issue any more.

And please don't ask me, all owly-eyed, "what happens if people don't agree about eligibility. Sheesh!


Dan Higginbottom said...

Preachin' to the choir, Tom! It's difficult to advance these concepts when the policy and decision-makers are incompetent/indifferent. An uneven application of the process is reinforced by compulsory compliance that allows under-performers to hang their hats on what they judge to be a reasonable-and-good-faith effort. A system with no teeth allows for abuse with impunity.

Anonymous said...

When Tribes declare there to be properties of traditional cultural or religious importance, the federal agencies shall take those declarations to heart, without demanding proof of them. Instead, the consultation should immediately turn to addressing the adverse effects on the property. Agencies do the same thing with Tribal sacred sites, and Tribal uses of federally protected objects for religious purposes (such as Eagle feathers). It is not the place of the federal agency to question these beliefs, nor to demand some sort of "proof" from the Tribes. The trust responsibility of federal agencies is to try to protect the reserved rights of Tribes to their traditional culture and the practice of traditional religion. That doesn't mean Tribes will always prevail in the consultations. It simply means that federal agencies do not have the prerogative of demanding proof. If Tribes wish to substantiate those declarations of their own volition, they can, but they must not be compelled to do so. Whether the Tribal reserved rights fall under 106, or 13007, or the laws that protect Tribal rights to gather plants and animals, the consultations must never begin by the agency demanding "proof" from the Tribe. That's not how trust responsibility should ever work.

Lance Foster said...

The question comes down to, what is the consequence of them not doing it?
The ultimate issue of enforceability.
Being exposed to a lawsuit? A good sound scolding?
Now a good sound scolding from SHPO, THPO, even ACHP... meh
A lawsuit... most people, individuals, tribes, organizations don't have the funds and/or backing from their superiors to take it to court.
So then, again, if the consequences are not bad if one misbehaves (ignores or screws up), then enforceability isn't there.

Kenton S. said...

Good post. I am managing a project for the US Army Corps of Engineers that is focused on determining NRHP eligibility for Madeline Island, Lake Superior. It is on WI SHPO's desk.