Preface:
In the interstices of my somewhat fragmented writing life, I’m working on a book that no publisher has agreed to touch, called something like “How To Destroy Historic Landmarks.” I figure that since I’ve written books for people who want to SAVE such places, it’s only fair that I offer something to the other side. This is how the manuscript begins:
You have a plan. Maybe for a new industrial complex, a wind farm, a solar plant. Maybe a prison, or a nuclear waste processing facility, a residential development, a pig farm. Maybe a logging operation, an apartment building, a natural gas pipeline, a railroad.
You start assembling the land for your project, and the financing. Maybe some of the land is owned, or controlled somehow, by the United States government. Or maybe you need some federal financing, or federally-guaranteed financing. Or maybe you need a federal permit of some kind. Or a permit from a local or state government. Or maybe you don’t, or maybe you don’t know. Or maybe your plan involves operations in a country other than the U.S., in which case – well, we’ll get to that.
You engage an architect-engineer firm to help you develop your plan. When you negotiate the A/E’s scope of work, one thing they say is that they’ll need to do an environmental impact assessment (EIA) – though they may call it an “environmental study,” or an “environmental assessment.” They may say you’ll need an “environmental site assessment,” and that’s a whole different thing; we’ll get to that, too.
But what’s this EIA thing? It’s a study, they tell you, designed to make sure your project won’t have any significant impacts on the environment. It’s required by law.
“Oh,” you say, looking at your lawyer, and she nods.
“So what’s to study?”
“Oh,” the A/E says, “endangered species, wetlands, floodplains, cultural resources.”
“What resources?”
“Cultural resources – that means historic landmarks, archaeological sites, things like that.”
You look at your lawyer and she shrugs her shoulders. You’re both thinking Mount Vernon, or the Taj Mahal, or Olduvai Gorge. There’s nothing like that on your property.
“It’s required,” the A/E says. “Got to get clearance. It’s usually just a formality.”
And thus you find yourself paying for a “cultural resources study” (though it may be called something else), the purpose of and need for which are not clear to you. And this study may lead you into some very strange worlds.
OK, skipping ahead because this issue has just come up in a project on which I’m consulting, I want today to compose something about how unwise it usually is for a project proponent to argue about the significance of a historic place – in standard US practice, its eligibility for the National Register of Historic Places – and solicit reader reaction. So…
Is It REALLY Historic?
Your consultants have found some places that you’ll have to dig up or knock down to build your project, that they say are “historically significant,” or “eligible for the National Register,” or maybe “potentially eligible.” Or maybe your consultants haven’t found these places but others – the local Indian tribe, the historical society, landowners, the Sierra Club – have drawn attention to them. These places may not look like anything to you: maybe a few piles of rocks, some sharp pieces of stone your consulting archaeologist gets all wet in the pants about and starts mumbling about “bulbs of percussion.” Maybe squiggles on an old map showing that there was once a homestead or a house of prostitution on the site; maybe a scruffy old building in which you wouldn’t house your ne’er-do-well son-in-law. Maybe some broken up fragments of pottery, or some bones. Maybe nothing at all but plants and trees, a rock outcrop and a slow-moving stream, but the tribe says it’s a “traditional cultural place” associated with some old story about weird mythological doings in some ancient dream time. “This place,” they say solemnly, “is eligible for inclusion in the National Register of Historic Places under Criterion A” – or B, C, or D.
Your inclination may be to say “this is a bunch of hooie; my consultant is trying to enrich himself by getting me to fund more studies” – or “these NIMBYs are making up something to encumber my project.” You may be right. You may also not be right, but let’s assume that you are. What happens if you say “Hell no, that place can’t be eligible for the National Register under any criteria; it’s all BS?” Politely, of course.
Well, as you may imagine, there’s a process for that, and quite a few permutations on the process. In essence you have to show why the place is not historic, to the satisfaction of the State Historic Preservation Officer (SHPO), maybe a Tribal Historic Preservation Officer (THPO), and if push comes to shove, to the Keeper of the National Register in the National Park Service. All this takes time, and probably more studies, so your consultant makes out like a bandit; he gets to dig around – in the ground or in archives or in the minds of old folks who remember what’s happened at the place – and all the time you’re paying him. And of course, he – the specialist – is the expert; you’re not, and he’s the guy who knows the SHPO, and maybe the tribes and the local preservation people; you don’t.
Of course, you can hire a new consultant to challenge your original consultant’s arguments, but then you’re likely to find yourself with two consultants arguing about something you don’t understand at all, and there’s no telling how long it will take to reach a decision – if one is ever reached. There’s not much you can do to control this process, other than to keep firing consultants and hiring new ones, and/or calling up your good buddy the governor to put pressure on the SHPO, or your Congressman to lean on the National Park Service – all of which strategies have their own downsides, at the very least requiring ratcheting up your campaign contributions.
If it’s a tribe or NIMBYs pushing the eligibility of the place, you can task your consultants to show that they’re wrong, but this tends to be a real loser. Think about it. The tribe or NIMBY is saying “This place is important because it’s associated with OUR cultural traditions or beliefs.” Your consultant is going to say “no it’s not?” On what grounds? Sure, the consultant may be able to show that there’s no scientific evidence that the cosmic snake Xbuttlesquirm emerged from the ground at the beginning of time and created Crooked Creek, but scientific evidence is irrelevant to the belief system of the tribe, and it’s in their belief system that the creek is (said to be) significant. And the NIMBYs, if they’re smart, will not hang their case on some historical fact that can be disproved (“Jesse James hid in this cave") but on a long-standing belief that has taken on cultural significance of its own (“We’ve all believed, for generations and generations, that Jesse James hid in this cave; it’s become an important part of our identity; it doesn’t matter whether he ever hid there; it’s been “Jesse’s Hideout” since my grandpa was a little sprout.”)
It is possible to get the SHPO to agree with you that the place isn’t eligible, but if the opposition knows what it’s doing there are ways for them to appeal the SHPO’s decision to the Keeper of the National Register in the National Park Service, and you have another delay. The Keeper almost always wants more information, more studies, hence more delay. And the Keeper, living in Washington DC, often asks questions that leave everyone scratching their heads. “What’s the boundary of the place,” for example, whether that makes any practical difference or not. Finally, the Keeper most times comes down on the side of eligibility.
And even if the Keeper goes along with you and says the place is not eligible, there are other laws the opponents can drag in that have nothing to do with Register eligibility; depending on the circumstances, they may have cases to make under NEPA, RFRA, AIRFA, NAGPRA, and maybe state or local law.
So, what to do? Smile, choke back your skepticism, and say “OK, we respect your point of view; we’ll treat everything as eligible.”
Why? Because, remember, the law doesn’t say you can’t destroy eligible, or listed, places; it simply says that you, and the federal agency involved, have to take the effects of doing so into account, following a specific set of procedures laid out in the ACHP’s regulations. So if you accept eligibility, accept the significance of the place, you next go to figuring out what effects you may have on it, and how adverse effects can be resolved. This may turn out not to be too hard. Maybe the effects will really be pretty mild, and you can find pretty easy ways to mitigate them.
True story: I was once involved in mediating a dispute between the U.S. Air Force and the Alaska SHPO over the proposed abandonment of a bunch of Nike Missile batteries and DEW-Line sites. The SHPO said they were historic; the Air Force said they weren’t; the parties were at loggerheads. My colleague and I (she was from the ACHP) asked the SHPO what she wanted done with the places. “Oh, she said, there’s one battery we’d like to make available to a city government to interpret, and we’d like some sort of encouragement to Native Communities to reuse the Dew-Line buildings.”
We turned to the Air Force: “Any problem with that?”
“No,” the Air Force responded, “but we still don’t think they’re eligible.”
In another case I’ve heard about, involving a pipeline over the shoulder of a mountain regarded as sacred by a tribe, after years of wrangling about the mountain’s eligibility for the Register, the effects of the project were resolved by holding a ceremony blessing the pipe, putting it into spiritual synchronicity with the mountain.
It’s not always that easy, but at least when you get to arguing about effects and how to resolve them, you’re on your turf, not the opposition’s. You control information on what’s feasible and what’s not; you can do studies to show what the visual or auditory or atmospheric impacts will be. And in the end, if push comes to shove, you can argue with the federal decisionmakers that there aren’t any feasible options and the public benefits of your project outweighs the damage it will cause. We’ll get to how you do that in the next chapter.
The bottom line here is: fighting over the significance of a place is usually a losing proposition for you. Yes, acknowledging its significance means you’re probably going to have to do SOMETHING to mitigate impacts on it, but the chances are that if you object to its significance you’ll STILL end up doing something; you’ll just take a lot longer to get to the decision about what to do, and spend a lot more money getting there. Plus you’ll so piss off the opposition – because you’re basically calling them liars and cheats, and/or denigrating their cultural values – that they’ll be less willing to deal with you than they’d be if you were more respectful, and more likely to try to stick you for outrageous mitigation measures.
One more point: there's a myth abroad in some parts of the world that if a place is eligible "only" under National Register Criterion "D" -- for containing significant data -- it can be readily dug up and gotten out of the way, while if it's aligible under Criterion "A" for association with significant events, it can't. This is flatly not true. The Criteria of eligibility don't define treatment; Criterion "D" sites aren't any more excavation-fodder than are Criterion "A" properties, and Criterion "A" places are no more inviolate than those given a "D" grade. What has to be preserved, as opposed to moved, dug up, knocked down or blown away, depends on what's negotiated among consulting parties, and ultimately on what the federal agencies involved decide is in the public interest. Your job is showing them that your project is more in the public interest than would be keeping the historic places inviolate. You'll do a better job of showing this, and get to the point of doing so quicker and at less cost, by accepting what people tell you about the eligibility of affected properties.
Tom King’s CRM Plus -- Ruminations on "cultural resource management," environmental impact assessment, and related esoteric topics, by a curmudgeon who seldom has anything good to say about anything.
Showing posts with label Advisory Council on Historic Preservation. Show all posts
Showing posts with label Advisory Council on Historic Preservation. Show all posts
Sunday, May 01, 2011
Wednesday, February 09, 2011
It’s Not Easy Being a Statistic
A few days ago, the historic preservation lists flashed an urgent appeal. We were warned that the U.S. Congress might be about to make drastic cuts in the Historic Preservation Fund (which supports the State and Tribal Historic Preservation Officers (SHPOs, THPOs), zero out the “Save America’s Treasures” and perhaps the “Preserve America” special grant funds, and make deep cuts in funding for Heritage Areas. We were all urged to contact our Senators and Congresspeople insisting that they resist any such cuts.
Naturally, I immediately sent the following message to both my Senators (Barbara Mikulski and Ben Cardin) and my Congressperson, Donna Edwards:
As a long-time professional in historic preservation and environmental impact assessment, I am being urged to contact you opposing the proposed cuts in funding for such Department of the Interior programs as "Save America's Treasures" and "Preserve America," as well as funding for State Historic Preservation Officers. I want you to know that I SUPPORT these proposed cuts, and more. The Historic Preservation Fund program administered by the National Park Service has become bloated, swollen, and divorced from any apparent purpose. It badly needs through re-thinking and re-design, which MIGHT result from a deliberate kick in its fiscal pants. I urge you to support such a kick.
The ensuing silence has been deafening from Senator Cardin and Representative Edwards, but I very promptly received the following robo-response from Senator Mikulski:
I share your support for preserving our national heritage. Historic preservation projects such as the Save America's Treasures, Preserve America, and National Heritage Areas programs help ensure that our historic landmarks and buildings will be there for future generations. These valuable resources give people the opportunity to appreciate our national heritage and learn about America's history. Once gone, these resources will be lost forever.
As a member of the Senate Appropriations Committee, I have worked aggressively for programs that benefit Maryland and our country and will continue to do so. Knowing of your support for historic preservation will be helpful to me as the appropriations process moves forward. You can be sure that I will give your request for full funding for these worthy programs every consideration.
I drafted the following rejoinder before I realized that the Senator’s system provided no way for me to send it:
Senator Mikulski -- Your staffer who prepared the response to my post must not have read what I sent. AS a dedicated preservationist, I support CUTTING the wasteful fat out of the federal preservation program; I do NOT follow the mindless party line of supporting every federal program in historic preservation. Based on 45 years experience inside and outside the federal historic preservation establishment, I am appalled at the waste of money allocated particularly to NPS historic preservation programs and such feel-good grant programs as "Save America's Treasures." There is a real need to rethink the national historic preservation program, and I can only hope that a significant reduction in happy money would force the preservation powers that be to undertake it.
We can, of course, argue about the substantive utility or inutility of cutting NPS historic preservation funding, but it’s not my intent here to promote that argument. My purpose instead is to express the sadness and frustration I feel upon learning that even a legislator as experienced and thoughtful as Senator Mikulski automatically assumes that anyone identifying himself as a preservation specialist, or writing about preservation, must want to support throwing federal money at NPS, the SHPOs, and the various grant programs.
Is it, to members of Congress, unimaginable that someone involved in preservation might also engage in independent thought?
Naturally, I immediately sent the following message to both my Senators (Barbara Mikulski and Ben Cardin) and my Congressperson, Donna Edwards:
As a long-time professional in historic preservation and environmental impact assessment, I am being urged to contact you opposing the proposed cuts in funding for such Department of the Interior programs as "Save America's Treasures" and "Preserve America," as well as funding for State Historic Preservation Officers. I want you to know that I SUPPORT these proposed cuts, and more. The Historic Preservation Fund program administered by the National Park Service has become bloated, swollen, and divorced from any apparent purpose. It badly needs through re-thinking and re-design, which MIGHT result from a deliberate kick in its fiscal pants. I urge you to support such a kick.
The ensuing silence has been deafening from Senator Cardin and Representative Edwards, but I very promptly received the following robo-response from Senator Mikulski:
I share your support for preserving our national heritage. Historic preservation projects such as the Save America's Treasures, Preserve America, and National Heritage Areas programs help ensure that our historic landmarks and buildings will be there for future generations. These valuable resources give people the opportunity to appreciate our national heritage and learn about America's history. Once gone, these resources will be lost forever.
As a member of the Senate Appropriations Committee, I have worked aggressively for programs that benefit Maryland and our country and will continue to do so. Knowing of your support for historic preservation will be helpful to me as the appropriations process moves forward. You can be sure that I will give your request for full funding for these worthy programs every consideration.
I drafted the following rejoinder before I realized that the Senator’s system provided no way for me to send it:
Senator Mikulski -- Your staffer who prepared the response to my post must not have read what I sent. AS a dedicated preservationist, I support CUTTING the wasteful fat out of the federal preservation program; I do NOT follow the mindless party line of supporting every federal program in historic preservation. Based on 45 years experience inside and outside the federal historic preservation establishment, I am appalled at the waste of money allocated particularly to NPS historic preservation programs and such feel-good grant programs as "Save America's Treasures." There is a real need to rethink the national historic preservation program, and I can only hope that a significant reduction in happy money would force the preservation powers that be to undertake it.
We can, of course, argue about the substantive utility or inutility of cutting NPS historic preservation funding, but it’s not my intent here to promote that argument. My purpose instead is to express the sadness and frustration I feel upon learning that even a legislator as experienced and thoughtful as Senator Mikulski automatically assumes that anyone identifying himself as a preservation specialist, or writing about preservation, must want to support throwing federal money at NPS, the SHPOs, and the various grant programs.
Is it, to members of Congress, unimaginable that someone involved in preservation might also engage in independent thought?
Sunday, January 30, 2011
Improving Regulation and Regulatory Review: The President's New Executive Order and Historic Preservation
Introduction
On January 18, 2011, President Obama issued an executive order (which doesn’t seem yet to have been assigned a number) entitled “Improving Regulation and Regulatory Review.” The order articulates some excellent principles that I’ll get to in a moment, but first let’s skip toward the order’s end and look at its action-forcing paragraphs. These are found in Section 6, and speak to all executive branch agencies:
Sec. 6. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.
(b) Within 120 days of the date of this order, each agency shall develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.
So agencies, within 120 days, are to initiate plans to examine their regulations and fix them up to make them “more effective or less burdensome” – or, presumably, both.
This requirement is as applicable to the two federal agencies responsible for rulemaking (that is, regulation-issuance) under the National Historic Preservation Act (NHPA) as it is to the rest of the federal establishment. Pursuant to the executive order those two agencies – the National Park Service (NPS) and the Advisory Council on Historic Preservation (ACHP) have both the opportunity and the responsibility to do something creative and responsible with their regulations – but almost certainly will resist doing so. They will argue either that their regulations don’t really regulate anything (the obvious out for NPS), or that they’re just fine as they are (the ACHP’s likely angle).
This is too bad, because in fact the interlinked, overlapping NHPA-based regulations overseen by the two agencies create many inefficiencies and are not very effective at achieving their purposes. They cost millions if not billions of unnecessary dollars, and place undue burdens on a considerable cross-section of the American public, including a range of industries and businesses large and small, local and state governments, Indian tribes and other indigenous groups, low-income and minority groups, property owners, and just plain citizens – including citizens who support historic preservation.
The ACHP and NPS ought to develop and implement review plans in cooperation with one another (as well as with all us stakeholders), because many of the gross inefficiencies of their regulatory systems, much of their undue complexity, much of the burden they place on industry and citizenry alike, result from interactions between the systems.
Complexity and Burdens: a Hypothetical Example
As noted above, NPS and ACHP will doubtless claim that they’re not really regulatory agencies and don’t need to do anything, and that besides, their regulations are just fine and everyone’s happy with them. To understand why they’re wrong, and why they (or better, someone else who isn’t deeply invested in the status quo) ought to perform the review the President orders, consider a hypothetical project – say, a small energy-production facility that requires a federal license or funding, or uses federal land. This project requires review under Section 106 of NHPA and the regulations of the ACHP (36 CFR 800). Let’s assume that the project proponent – call her Polly – is a responsible sort, as interested in doing right by the law, the environment, and the public interest as she is in the project’s bottom line. So she sets out to comply with 36 CFR 800 (and the National Environmental Policy Act – NEPA – but that’s another whole can of regulatory worms).
But the proponent in fact can’t comply with 36 CFR 800, because Section 106 of NHPA applies only to federal agencies. There may or may not be a federal agency clearly involved when Polly Proponent begins to develop her plans, or there may be several – or some may be involved at the outset while others are waiting in the wings. The result is that review of Polly’s project may be delayed until a federal agency is unambiguously involved, and by the time this happens Polly may have invested a lot of time and money in her project, limiting her ability or willingness to consider alternatives if it turns out her preferred approach will have serious impacts.
So here’s Problem #1 – Ambiguous, uncertain, or late federal involvement: Section 106 review was invented back when many if not most federal projects were directly undertaken by federal agencies. Today, many if not most projects in which the federal government is involved are actually planned and promoted by private parties or local/state governments. Federal agencies may become involved in a project rather late in planning. The Section 106 regulations quite reasonably insist that the law be complied with early in planning, when there’s lots of room for adjustment and consideration of alternatives, but at that early stage, there may be no federal agency involved. As a result, review may be delayed until many alternatives have been foreclosed, and there’s little wiggle room left.
Let’s suppose a federal agency gets involved in Polly’s project – or maybe a couple of Federal agencies do, and they initiate review. Polly may at this point run into another problem – call it Problem #1a – in that the agencies involved may have understandings and interpretations of their Section 106 responsibilities that are unique to themselves, and these understandings may conflict with one another, confusing and complicating review of Polly’s project. This isn’t exactly the ACHP’s or NPS’s fault, so let’s just note it and skip over it – though it’s certainly imaginable that thoughtful review of the regulatory system could help relieve the confusion.
The agency responsible for Polly’s project – let’s call it the Agency for Federal Assistance (AFA) -- now seeks to initiate Section 106 review. The Section 106 regulations say that it’s to do so by contacting the relevant State Historic Preservation Officer (SHPO) , coordinating with other reviews (e.g. NEPA review) and identifying other parties – stakeholders – with which it should consult. Under some circumstances the agency consults with one or more Tribal Historic Preservation Officers in lieu of or in addition to the SHPO, but to keep the discussion relatively simple (sic), let's stick with the SHPO.
And in consulting the SHPO, the agency is likely to be quite systematically misled as a result of NPS regulations and practice. NPS partly funds the SHPOs, and hence oversees how they perform their functions – including their consultation with agencies under Section 106. But NPS regulations (36 CFR 61) and procedures (extensive and obscure) dealing with SHPO operations go into loving detail about SHPO duties relating to things of interest to NPS (notably the National Register of Historic Places – see below), while largely ignoring SHPO responsibilities vis-à-vis Section 106. To the extent NPS procedures do touch on Section 106-related SHPO responsibilities, they are out of date; the Section 106 regulations have changed several times, and practice under Section 106 has evolved considerably, over the two decades or so since NPS last re-thought its SHPO review procedures.
So the agency holding the SHPO’s purse-strings – NPS – does little or nothing to encourage SHPOs to advise agencies about how to comply with Section 106 in a manner that’s consistent with the ACHP’s regulations. An SHPO may do so without such encouragement, of course, but he or she will not be rewarded for doing so when NPS doles out its grant moneys.
This is Problem #2: The interaction between ACHP and NPS procedures, via the SHPOs, does not encourage early, thoughtful initiation of Section 106 review in coordination with NEPA and in consultation with stakeholders.
The AFA, if it is like most federal agencies, wants to consult with just as few people as possible, and do the least work it can, in reviewing Polly’s project. AFA very likely believes – this belief is quite widespread, though utterly inconsistent with the regulations – that Section 106 simply requires them to seek “clearance” or approval for Polly’s project from the SHPO, or that the SHPO will tell them if the project presents any historic preservation issues.
So AFA drops the plans for Polly’s project on the SHPO and asks what the SHPO thinks – expecting to be told definitively whether Polly has any historic preservation problems. Under the Section 106 regulations, what the SHPO ought to do at this point is provide AFA with recommendations about how to identify any potentially affected historic properties, caution AFA to make sure it coordinates its 106 consultation with review under NEPA, and point AFA toward any other parties who ought to be brought into consultation. The SHPO may do these things, but since he or she gets no encouragement to do so from NPS, there’s no guarantee.
The SHPO may just tell AFA what’s in the “state inventory” – the list of places the state has identified that may have historic value. The inventory is very incomplete; no state has had the money to “complete” its inventory, and since history marches on, and discoveries are made all the time, and historic significance is in the minds of evaluators, the very notion of a “complete” historic property inventory is something of an oxymoron. But one possibility is that AFA assumes that the inventory is complete, notes that there’s nothing recorded in any of the locations that Polly’s considering, and tells Polly she has nothing to worry about when it comes to Section 106. This, of course, may be true but it probably isn’t; the reason there’s nothing in the inventory is probably that nobody’s looked at Polly’s potential project sites.
More likely, the SHPO will tell AFA that it doesn’t know of anything in the areas Polly’s looking at, and recommends that a survey be done to find out what is there. The SHPO quite likely has detailed standards for survey work – NPS encourages the development of such standards. The standards probably go into some detail about having archaeologists walk over every foot of the ground, digging holes every so often, while architectural historians look at and photograph all the buildings, and everybody does background research. What they almost certainly do not say much about is finding out what living people in the potentially affected areas (or elsewhere) think about those areas – unless those people are archaeologists, architectural historians, or perhaps Indian tribes – because NPS doesn’t encourage SHPOs to worry about that kind of thing (except where tribes are involved, based on a large corpus of action-forcing law).
Polly – a responsible sort, remember – has several possible alternative locations for her energy project, and some of them are quite large. She doesn’t have access to all of them yet. It will cost her a great deal of money to contract for surveys of them all, done to the SHPO’s standards. She objects, and the AFA takes her objection to the SHPO. They decide that Polly can get by with background study at this point, and put off full scale survey until a final project site has been identified.
So Polly’s historic preservation contractor does a vague general paper on the history and prehistory of the region, which goes in the project’s NEPA documents, but does nothing more about impacts on historic properties until Polly and AFA have selected a preferred alternative. By this time Polly has invested quite a lot of money in project planning. Now, at the eleventh hour, her consultants finally get out on the ground in the preferred alternative area, and – whoops! – they find something. Or – this is not uncommon – the consultants don’t find something, but others (those folks whose views haven’t been sought during earlier phases of planning), learn about the project because its NEPA document has been distributed or it’s gotten into the local papers or been touted on the internet, and they raise concerns. Maybe these concerns are about, say, an ancestral burial place an Indian tribe says will be disturbed, or maybe local people who really like the pristine views across the proposed project site raise aesthetic arguments. Whatever the concerns, they’re raised late in the planning process, when it’s going to cost Polly megabucks to do anything about them – if she can do anything at all.
So, Problem #3: By failing to ensure that stakeholders are involved early in the process, by failing to provide effectively for coordination with NEPA and similar reviews, and by imposing standards that promote delay in the identification of affected historic properties until alternatives have been foregone, the interaction between NPS and ACHP regulations almost guarantees late-breaking conflicts that waste money and time.
But it gets worse. Now that something has been identified in the area to be affected by the project, the Section 106 regulations require that its eligibility for the National Register of Historic Places be determined. Never mind that the tribe is deeply concerned about impacts on its ancestors’ burial place; never mind that the local aesthetic society is wild about what’s going to happen to the viewshed; we can’t consider impacts on such a place under Section 106 unless it’s eligible for the Register. And conversely, even if the only thing found is a pile of tin cans on the edge of the project site, and nobody gives a damn about it, it has to be evaluated for Register eligibility.
And here the ACHP and NPS regulations part company rather dramatically. The ACHP regulations (at 36 CFR 800.4(c)(2)) permit an agency and SHPO simply to decide that something is or is not eligible for the Register and move on, with provision for resolving objections raised by others. But NPS regulations (36 CFR 63) require that if an agency and SHPO decide that a property is eligible, the agency must submit detailed documentation to NPS, in the person of the Keeper of the National Register, who makes a final decision. If the agency and SHPO decide that the property is not eligible, though, they can treat it as such with no further review; in other words AFA can let Polly blow it away, and never mind the tribe or the aesthetes.
In determining eligibility, agencies, consultants, SHPOs and others apply criteria set forth in NPS regulations at 36 CFR 60.4. These criteria are very abstract and subject to interpretation by professional historians, architectural historians, and archaeologists – who are, for all practical purposes, the only people allowed by NPS and ACHP regulations to interpret them. Applying them can become the subject of intense, abstruse argumentation, taking up more time with little practical utility. SHPOs and NPS also commonly demand a great deal of documentation to support a determination of eligibility, grounding their demands (if they bother to explain them at all) in a considerable corpus of NPS guidance (based ultimately on regulations at 36 CFR 60) relating to the formal nomination of properties to the Register. This sort of documentation is often unnecessary for purposes of eligibility determination, but is insisted upon anyway as a matter of consistency (See Ralph Waldo Emerson for a succinct comment on this kind of consistency).
This is Problem #4: The ACHP and NPS regulations together focus attention on properties that meet abstract criteria interpretable only by professionals in specified academic disciplines, employing unduly complicated processes and generating unnecessary paperwork. The evaluation system is virtually impenetrable by outsiders, and can be very time-consuming. It can elevate the “official,” government-sanctioned significance of things that no one cares much about, while denigrating the significance of places about which people are deeply concerned. The character of the criteria, and the divergence between the ACHP and NPS regulations, create many opportunities for time-wasting arguments over petty technical and procedural issues.
Assuming something is found eligible for the National Register, the next step in the process is to determine whether the project will affect it, and if so, how. Here the regulations of the ACHP (36 CFR 800.5) hold sway, but the SHPO is an important interpreter of those regulations, and is held to account by NPS. The regulations allow for projects to fall into any of four categories – no historic properties subject to effect, no adverse effect, no adverse effect with conditions, and adverse effect. If there will be an adverse effect, the agency, SHPO, and others consult further, seeking agreement about how to “resolve” the adversity. There is much room for argument over how to interpret the regulations. Although the regulations do not say so, there is a widespread perception that it is wrong to have an adverse effect, so agencies tend to seek “no adverse effect” determinations. SHPOs tend to resist concurring in such determinations. SHPO and ACHP staff also tend to interpret the language of the regulations to require a rigidly sequential process of first exploring alternatives to avoid adverse effects, then alternatives to minimize them, and only if these prove infeasible, alternatives to mitigate them somehow – regardless of the severity of the impact or the significance of the property. Arguments over such petty issues can take up a great deal of time, including time spent by pricy consultants.
Thus, Problem 5: The overall effect of the Section 106 regulations, interacting with NPS regulations and procedures, is to reduce consideration of effects on historic properties to technical argumentation over petty points of regulatory interpretation and professional preference, with little opportunity for the public to become fruitfully involved.
Conclusion: Fixing the Problems
For those unfamiliar with the Section 106 process, I should say that Polly will probably get her project constructed – regardless of its effects on historic properties or the broader environment. She’ll probably wind up spending a good deal of money on “resolving” its impacts through such things as archaeological data recovery – on top of what she’s spent struggling through the review process. If worst comes to worst, if the project will have adverse effects and the AFA, Polly,and the SHPO can’t agree on what to do about them, the ACHP will comment to the head of AFA, who will make its final decision.
All that said, and despite all the problems outlined above, there is much that is worthwhile in the Section 106 process. Notably, it’s very nearly the only regulatory process in the federal government that emphasizes getting concerned parties together to consult over and work out their differences about how impacts on an aspect of the environment should be characterized and dealt with. It could be a model for other such review processes, had it not been allowed to evolve into such a petty, impenetrable, unnecessarily cumbersome and ill-focused enterprise.
What can be done? That remains to be seen, but I hope someone in the administration can and will force the ACHP and NPS to get off their self-satisfied duffs and reconsider the whole regulatory complex with reference to the excellent principles the President set out in the introduction to his executive order – to wit:
“Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.”
I want especially to point to the third and seventh sentences in this statement of principles. The complex of regulations surrounding and structuring Section 106 review give lip service (and even that only sometimes) to public participation and the exchange of ideas, but they do not really facilitate either, and they are a long, long way from being accessible, consistent, written in plain language, or easy to understand (The NEPA regulations, I should mention, are even worse). They could be made very much better. I hope – but don’t expect – that President Obama’s executive order will trigger a process that leads to such improvements.
On January 18, 2011, President Obama issued an executive order (which doesn’t seem yet to have been assigned a number) entitled “Improving Regulation and Regulatory Review.” The order articulates some excellent principles that I’ll get to in a moment, but first let’s skip toward the order’s end and look at its action-forcing paragraphs. These are found in Section 6, and speak to all executive branch agencies:
Sec. 6. Retrospective Analyses of Existing Rules. (a) To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Such retrospective analyses, including supporting data, should be released online whenever possible.
(b) Within 120 days of the date of this order, each agency shall develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.
So agencies, within 120 days, are to initiate plans to examine their regulations and fix them up to make them “more effective or less burdensome” – or, presumably, both.
This requirement is as applicable to the two federal agencies responsible for rulemaking (that is, regulation-issuance) under the National Historic Preservation Act (NHPA) as it is to the rest of the federal establishment. Pursuant to the executive order those two agencies – the National Park Service (NPS) and the Advisory Council on Historic Preservation (ACHP) have both the opportunity and the responsibility to do something creative and responsible with their regulations – but almost certainly will resist doing so. They will argue either that their regulations don’t really regulate anything (the obvious out for NPS), or that they’re just fine as they are (the ACHP’s likely angle).
This is too bad, because in fact the interlinked, overlapping NHPA-based regulations overseen by the two agencies create many inefficiencies and are not very effective at achieving their purposes. They cost millions if not billions of unnecessary dollars, and place undue burdens on a considerable cross-section of the American public, including a range of industries and businesses large and small, local and state governments, Indian tribes and other indigenous groups, low-income and minority groups, property owners, and just plain citizens – including citizens who support historic preservation.
The ACHP and NPS ought to develop and implement review plans in cooperation with one another (as well as with all us stakeholders), because many of the gross inefficiencies of their regulatory systems, much of their undue complexity, much of the burden they place on industry and citizenry alike, result from interactions between the systems.
Complexity and Burdens: a Hypothetical Example
As noted above, NPS and ACHP will doubtless claim that they’re not really regulatory agencies and don’t need to do anything, and that besides, their regulations are just fine and everyone’s happy with them. To understand why they’re wrong, and why they (or better, someone else who isn’t deeply invested in the status quo) ought to perform the review the President orders, consider a hypothetical project – say, a small energy-production facility that requires a federal license or funding, or uses federal land. This project requires review under Section 106 of NHPA and the regulations of the ACHP (36 CFR 800). Let’s assume that the project proponent – call her Polly – is a responsible sort, as interested in doing right by the law, the environment, and the public interest as she is in the project’s bottom line. So she sets out to comply with 36 CFR 800 (and the National Environmental Policy Act – NEPA – but that’s another whole can of regulatory worms).
But the proponent in fact can’t comply with 36 CFR 800, because Section 106 of NHPA applies only to federal agencies. There may or may not be a federal agency clearly involved when Polly Proponent begins to develop her plans, or there may be several – or some may be involved at the outset while others are waiting in the wings. The result is that review of Polly’s project may be delayed until a federal agency is unambiguously involved, and by the time this happens Polly may have invested a lot of time and money in her project, limiting her ability or willingness to consider alternatives if it turns out her preferred approach will have serious impacts.
So here’s Problem #1 – Ambiguous, uncertain, or late federal involvement: Section 106 review was invented back when many if not most federal projects were directly undertaken by federal agencies. Today, many if not most projects in which the federal government is involved are actually planned and promoted by private parties or local/state governments. Federal agencies may become involved in a project rather late in planning. The Section 106 regulations quite reasonably insist that the law be complied with early in planning, when there’s lots of room for adjustment and consideration of alternatives, but at that early stage, there may be no federal agency involved. As a result, review may be delayed until many alternatives have been foreclosed, and there’s little wiggle room left.
Let’s suppose a federal agency gets involved in Polly’s project – or maybe a couple of Federal agencies do, and they initiate review. Polly may at this point run into another problem – call it Problem #1a – in that the agencies involved may have understandings and interpretations of their Section 106 responsibilities that are unique to themselves, and these understandings may conflict with one another, confusing and complicating review of Polly’s project. This isn’t exactly the ACHP’s or NPS’s fault, so let’s just note it and skip over it – though it’s certainly imaginable that thoughtful review of the regulatory system could help relieve the confusion.
The agency responsible for Polly’s project – let’s call it the Agency for Federal Assistance (AFA) -- now seeks to initiate Section 106 review. The Section 106 regulations say that it’s to do so by contacting the relevant State Historic Preservation Officer (SHPO) , coordinating with other reviews (e.g. NEPA review) and identifying other parties – stakeholders – with which it should consult. Under some circumstances the agency consults with one or more Tribal Historic Preservation Officers in lieu of or in addition to the SHPO, but to keep the discussion relatively simple (sic), let's stick with the SHPO.
And in consulting the SHPO, the agency is likely to be quite systematically misled as a result of NPS regulations and practice. NPS partly funds the SHPOs, and hence oversees how they perform their functions – including their consultation with agencies under Section 106. But NPS regulations (36 CFR 61) and procedures (extensive and obscure) dealing with SHPO operations go into loving detail about SHPO duties relating to things of interest to NPS (notably the National Register of Historic Places – see below), while largely ignoring SHPO responsibilities vis-à-vis Section 106. To the extent NPS procedures do touch on Section 106-related SHPO responsibilities, they are out of date; the Section 106 regulations have changed several times, and practice under Section 106 has evolved considerably, over the two decades or so since NPS last re-thought its SHPO review procedures.
So the agency holding the SHPO’s purse-strings – NPS – does little or nothing to encourage SHPOs to advise agencies about how to comply with Section 106 in a manner that’s consistent with the ACHP’s regulations. An SHPO may do so without such encouragement, of course, but he or she will not be rewarded for doing so when NPS doles out its grant moneys.
This is Problem #2: The interaction between ACHP and NPS procedures, via the SHPOs, does not encourage early, thoughtful initiation of Section 106 review in coordination with NEPA and in consultation with stakeholders.
The AFA, if it is like most federal agencies, wants to consult with just as few people as possible, and do the least work it can, in reviewing Polly’s project. AFA very likely believes – this belief is quite widespread, though utterly inconsistent with the regulations – that Section 106 simply requires them to seek “clearance” or approval for Polly’s project from the SHPO, or that the SHPO will tell them if the project presents any historic preservation issues.
So AFA drops the plans for Polly’s project on the SHPO and asks what the SHPO thinks – expecting to be told definitively whether Polly has any historic preservation problems. Under the Section 106 regulations, what the SHPO ought to do at this point is provide AFA with recommendations about how to identify any potentially affected historic properties, caution AFA to make sure it coordinates its 106 consultation with review under NEPA, and point AFA toward any other parties who ought to be brought into consultation. The SHPO may do these things, but since he or she gets no encouragement to do so from NPS, there’s no guarantee.
The SHPO may just tell AFA what’s in the “state inventory” – the list of places the state has identified that may have historic value. The inventory is very incomplete; no state has had the money to “complete” its inventory, and since history marches on, and discoveries are made all the time, and historic significance is in the minds of evaluators, the very notion of a “complete” historic property inventory is something of an oxymoron. But one possibility is that AFA assumes that the inventory is complete, notes that there’s nothing recorded in any of the locations that Polly’s considering, and tells Polly she has nothing to worry about when it comes to Section 106. This, of course, may be true but it probably isn’t; the reason there’s nothing in the inventory is probably that nobody’s looked at Polly’s potential project sites.
More likely, the SHPO will tell AFA that it doesn’t know of anything in the areas Polly’s looking at, and recommends that a survey be done to find out what is there. The SHPO quite likely has detailed standards for survey work – NPS encourages the development of such standards. The standards probably go into some detail about having archaeologists walk over every foot of the ground, digging holes every so often, while architectural historians look at and photograph all the buildings, and everybody does background research. What they almost certainly do not say much about is finding out what living people in the potentially affected areas (or elsewhere) think about those areas – unless those people are archaeologists, architectural historians, or perhaps Indian tribes – because NPS doesn’t encourage SHPOs to worry about that kind of thing (except where tribes are involved, based on a large corpus of action-forcing law).
Polly – a responsible sort, remember – has several possible alternative locations for her energy project, and some of them are quite large. She doesn’t have access to all of them yet. It will cost her a great deal of money to contract for surveys of them all, done to the SHPO’s standards. She objects, and the AFA takes her objection to the SHPO. They decide that Polly can get by with background study at this point, and put off full scale survey until a final project site has been identified.
So Polly’s historic preservation contractor does a vague general paper on the history and prehistory of the region, which goes in the project’s NEPA documents, but does nothing more about impacts on historic properties until Polly and AFA have selected a preferred alternative. By this time Polly has invested quite a lot of money in project planning. Now, at the eleventh hour, her consultants finally get out on the ground in the preferred alternative area, and – whoops! – they find something. Or – this is not uncommon – the consultants don’t find something, but others (those folks whose views haven’t been sought during earlier phases of planning), learn about the project because its NEPA document has been distributed or it’s gotten into the local papers or been touted on the internet, and they raise concerns. Maybe these concerns are about, say, an ancestral burial place an Indian tribe says will be disturbed, or maybe local people who really like the pristine views across the proposed project site raise aesthetic arguments. Whatever the concerns, they’re raised late in the planning process, when it’s going to cost Polly megabucks to do anything about them – if she can do anything at all.
So, Problem #3: By failing to ensure that stakeholders are involved early in the process, by failing to provide effectively for coordination with NEPA and similar reviews, and by imposing standards that promote delay in the identification of affected historic properties until alternatives have been foregone, the interaction between NPS and ACHP regulations almost guarantees late-breaking conflicts that waste money and time.
But it gets worse. Now that something has been identified in the area to be affected by the project, the Section 106 regulations require that its eligibility for the National Register of Historic Places be determined. Never mind that the tribe is deeply concerned about impacts on its ancestors’ burial place; never mind that the local aesthetic society is wild about what’s going to happen to the viewshed; we can’t consider impacts on such a place under Section 106 unless it’s eligible for the Register. And conversely, even if the only thing found is a pile of tin cans on the edge of the project site, and nobody gives a damn about it, it has to be evaluated for Register eligibility.
And here the ACHP and NPS regulations part company rather dramatically. The ACHP regulations (at 36 CFR 800.4(c)(2)) permit an agency and SHPO simply to decide that something is or is not eligible for the Register and move on, with provision for resolving objections raised by others. But NPS regulations (36 CFR 63) require that if an agency and SHPO decide that a property is eligible, the agency must submit detailed documentation to NPS, in the person of the Keeper of the National Register, who makes a final decision. If the agency and SHPO decide that the property is not eligible, though, they can treat it as such with no further review; in other words AFA can let Polly blow it away, and never mind the tribe or the aesthetes.
In determining eligibility, agencies, consultants, SHPOs and others apply criteria set forth in NPS regulations at 36 CFR 60.4. These criteria are very abstract and subject to interpretation by professional historians, architectural historians, and archaeologists – who are, for all practical purposes, the only people allowed by NPS and ACHP regulations to interpret them. Applying them can become the subject of intense, abstruse argumentation, taking up more time with little practical utility. SHPOs and NPS also commonly demand a great deal of documentation to support a determination of eligibility, grounding their demands (if they bother to explain them at all) in a considerable corpus of NPS guidance (based ultimately on regulations at 36 CFR 60) relating to the formal nomination of properties to the Register. This sort of documentation is often unnecessary for purposes of eligibility determination, but is insisted upon anyway as a matter of consistency (See Ralph Waldo Emerson for a succinct comment on this kind of consistency).
This is Problem #4: The ACHP and NPS regulations together focus attention on properties that meet abstract criteria interpretable only by professionals in specified academic disciplines, employing unduly complicated processes and generating unnecessary paperwork. The evaluation system is virtually impenetrable by outsiders, and can be very time-consuming. It can elevate the “official,” government-sanctioned significance of things that no one cares much about, while denigrating the significance of places about which people are deeply concerned. The character of the criteria, and the divergence between the ACHP and NPS regulations, create many opportunities for time-wasting arguments over petty technical and procedural issues.
Assuming something is found eligible for the National Register, the next step in the process is to determine whether the project will affect it, and if so, how. Here the regulations of the ACHP (36 CFR 800.5) hold sway, but the SHPO is an important interpreter of those regulations, and is held to account by NPS. The regulations allow for projects to fall into any of four categories – no historic properties subject to effect, no adverse effect, no adverse effect with conditions, and adverse effect. If there will be an adverse effect, the agency, SHPO, and others consult further, seeking agreement about how to “resolve” the adversity. There is much room for argument over how to interpret the regulations. Although the regulations do not say so, there is a widespread perception that it is wrong to have an adverse effect, so agencies tend to seek “no adverse effect” determinations. SHPOs tend to resist concurring in such determinations. SHPO and ACHP staff also tend to interpret the language of the regulations to require a rigidly sequential process of first exploring alternatives to avoid adverse effects, then alternatives to minimize them, and only if these prove infeasible, alternatives to mitigate them somehow – regardless of the severity of the impact or the significance of the property. Arguments over such petty issues can take up a great deal of time, including time spent by pricy consultants.
Thus, Problem 5: The overall effect of the Section 106 regulations, interacting with NPS regulations and procedures, is to reduce consideration of effects on historic properties to technical argumentation over petty points of regulatory interpretation and professional preference, with little opportunity for the public to become fruitfully involved.
Conclusion: Fixing the Problems
For those unfamiliar with the Section 106 process, I should say that Polly will probably get her project constructed – regardless of its effects on historic properties or the broader environment. She’ll probably wind up spending a good deal of money on “resolving” its impacts through such things as archaeological data recovery – on top of what she’s spent struggling through the review process. If worst comes to worst, if the project will have adverse effects and the AFA, Polly,and the SHPO can’t agree on what to do about them, the ACHP will comment to the head of AFA, who will make its final decision.
All that said, and despite all the problems outlined above, there is much that is worthwhile in the Section 106 process. Notably, it’s very nearly the only regulatory process in the federal government that emphasizes getting concerned parties together to consult over and work out their differences about how impacts on an aspect of the environment should be characterized and dealt with. It could be a model for other such review processes, had it not been allowed to evolve into such a petty, impenetrable, unnecessarily cumbersome and ill-focused enterprise.
What can be done? That remains to be seen, but I hope someone in the administration can and will force the ACHP and NPS to get off their self-satisfied duffs and reconsider the whole regulatory complex with reference to the excellent principles the President set out in the introduction to his executive order – to wit:
“Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation. It must be based on the best available science. It must allow for public participation and an open exchange of ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and costs, both quantitative and qualitative. It must ensure that regulations are accessible, consistent, written in plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.”
I want especially to point to the third and seventh sentences in this statement of principles. The complex of regulations surrounding and structuring Section 106 review give lip service (and even that only sometimes) to public participation and the exchange of ideas, but they do not really facilitate either, and they are a long, long way from being accessible, consistent, written in plain language, or easy to understand (The NEPA regulations, I should mention, are even worse). They could be made very much better. I hope – but don’t expect – that President Obama’s executive order will trigger a process that leads to such improvements.
Thursday, January 06, 2011
Contents: Wiley-Blackwell Companion to CRM
In response to requests (well, a request), here's the table of contents of the Wiley-Blackwell Companion to Cultural Resource Management, scheduled for publication in the UK and US this spring.
Introduction
Thomas F. King
Part I. General Classes of Cultural Resources
Chapter 1 – Studying and Evaluating the Built Environment
Kate Kuranda
Chapter 2 – Principles of Architectural Preservation
David Ames & Leila Hamroun
Chapter 3 – Archaeology of the Distant Past
Michael J. Moratto
Chapter 4 – Archaeology of the Recent Past
Thomas F. King
Chapter 5 -Geographies of Cultural Resource Management: Space, Place and Landscape
William M. Hunter
Chapter 6 - Culturally Significant Natural Resources: Where Nature and Culture Meet
Anna J. Willow
Chapter 7 – History as a Cultural Resource
Deborah Morse-Kahn
Chapter 8 - Portable Cultural Property: “This Belongs in a Museum?”
Wendy Teeter
Chapter 9 - "Intangible" Cultural Resources: Values are in the Mind
Sheri Murray Ellis
Chapter 10 – Religious Belief and Practice
Michael D. McNally
Chapter 11 - Language as an Integrated Cultural Resource
Bernard Perley
Part II. Special Types of Cultural Resources
Chapter 12 - Challenges of Maritime Archaeology: In Too Deep
Sean Kingsley
Chapter 13 - Historic Watercraft: Keeping Them Afloat
Susan B.M. Langley
Chapter 14 - Historic Aircraft and Spacecraft: Enfants TerriblesRic Gillespie
Chapter 15 - Studying and Managing Aerospace Crash Sites
Craig Fuller and Gary Quigg
Chapter 16 - Evaluating and Managing Technical and Scientific Properties: Rockets, Tang™, and Telescopes
Paige M. Peyton
Chapter 17 – Historic Battlefields: Studying and Managing Fields of Conflict
Nancy Farrell
Chapter 18 - Managing Our Military Heritage
D. Colt Denfeld
Chapter 19 - Linear Resources and Linear Projects: All in Line
Charles W Wheeler
Chapter 20 - Rock Art as Cultural Resource
Linea Sundstrom and Kelley Hays-Gilpin
Part III. Perspectives on Cultural Resource Management
Chapter 21 – Consultation in Cultural Resource Management: An Indigenous Perspective
Reba Fuller
Chapter 22 - A Displaced People’s Perspective on Cultural Resource Management: Where We’re From
David Nickell
Part IV. Legal, Administrative, and Practical Contexts
Chapter 23 – Cultural Resource Laws: The Legal Mélange
Thomas F. King
Chapter 24 – International Variety in Cultural Resource Management
Thomas J. Green
Chapter 25 – Consultation and Negotiation in Cultural Resource Management
Claudia Nissley
Chapter 26 – Being a U.S. Government Cultural Resource Manager
Russell L. Kaldenberg
Chapter 27 – Making a Living in Private Sector Cultural Resource Management
Tom Lennon
Chapter 28 - The Historic Built Environment: Preservation and Planning
Diana Painter
Chapter 29 – CRM and the Military: Cultural Resource Management at War
Michael K. Trimble and Susan Malin-Boyce
Chapter 30 - A Future for Cultural Resource Management?
Thomas F. King
Introduction
Thomas F. King
Part I. General Classes of Cultural Resources
Chapter 1 – Studying and Evaluating the Built Environment
Kate Kuranda
Chapter 2 – Principles of Architectural Preservation
David Ames & Leila Hamroun
Chapter 3 – Archaeology of the Distant Past
Michael J. Moratto
Chapter 4 – Archaeology of the Recent Past
Thomas F. King
Chapter 5 -Geographies of Cultural Resource Management: Space, Place and Landscape
William M. Hunter
Chapter 6 - Culturally Significant Natural Resources: Where Nature and Culture Meet
Anna J. Willow
Chapter 7 – History as a Cultural Resource
Deborah Morse-Kahn
Chapter 8 - Portable Cultural Property: “This Belongs in a Museum?”
Wendy Teeter
Chapter 9 - "Intangible" Cultural Resources: Values are in the Mind
Sheri Murray Ellis
Chapter 10 – Religious Belief and Practice
Michael D. McNally
Chapter 11 - Language as an Integrated Cultural Resource
Bernard Perley
Part II. Special Types of Cultural Resources
Chapter 12 - Challenges of Maritime Archaeology: In Too Deep
Sean Kingsley
Chapter 13 - Historic Watercraft: Keeping Them Afloat
Susan B.M. Langley
Chapter 14 - Historic Aircraft and Spacecraft: Enfants TerriblesRic Gillespie
Chapter 15 - Studying and Managing Aerospace Crash Sites
Craig Fuller and Gary Quigg
Chapter 16 - Evaluating and Managing Technical and Scientific Properties: Rockets, Tang™, and Telescopes
Paige M. Peyton
Chapter 17 – Historic Battlefields: Studying and Managing Fields of Conflict
Nancy Farrell
Chapter 18 - Managing Our Military Heritage
D. Colt Denfeld
Chapter 19 - Linear Resources and Linear Projects: All in Line
Charles W Wheeler
Chapter 20 - Rock Art as Cultural Resource
Linea Sundstrom and Kelley Hays-Gilpin
Part III. Perspectives on Cultural Resource Management
Chapter 21 – Consultation in Cultural Resource Management: An Indigenous Perspective
Reba Fuller
Chapter 22 - A Displaced People’s Perspective on Cultural Resource Management: Where We’re From
David Nickell
Part IV. Legal, Administrative, and Practical Contexts
Chapter 23 – Cultural Resource Laws: The Legal Mélange
Thomas F. King
Chapter 24 – International Variety in Cultural Resource Management
Thomas J. Green
Chapter 25 – Consultation and Negotiation in Cultural Resource Management
Claudia Nissley
Chapter 26 – Being a U.S. Government Cultural Resource Manager
Russell L. Kaldenberg
Chapter 27 – Making a Living in Private Sector Cultural Resource Management
Tom Lennon
Chapter 28 - The Historic Built Environment: Preservation and Planning
Diana Painter
Chapter 29 – CRM and the Military: Cultural Resource Management at War
Michael K. Trimble and Susan Malin-Boyce
Chapter 30 - A Future for Cultural Resource Management?
Thomas F. King
Saturday, September 25, 2010
The Advisory Council on Historic Passivity
The Advisory Council on Historic Preservation (ACHP) has come out with another opinion that ducks engagement in controversy and in so doing undercuts the interests of historic preservation.
The case in point is the planned demolition of the Boeing #2 plant in Tukwila, Washington, where B-29s were assembled in what we’d now call the surge to win World War II. The plant may or may not be technically preservable, it may or may not have reuse potential, it may or may not be significant enough to be worth preserving – though quite a few people seem to think it is. But the possibility of preserving the plant is not being considered via the consultative processes established under Section 106 of the National Historic Preservation Act (NHPA), even though federal agencies are involved in the demolition.
Having had this brought to its attention by concerned citizens and the Washington State Historic Preservation Officer (SHPO), the ACHP issued a letter to the SHPO on September 23, finding that the federal agencies involved had no responsibility to carry out Section 106 review.
Why? Because the instrument by which the agencies have agreed that the demolition should go forward, and so advised the Boeing Company, is a consent decree which will be signed off on (presumably) by the Federal District Court. The consent decree relates to the cleanup of toxic materials at the site of the plant. The ACHP says that in its opinion, “the negotiation of the consent decree and the filing of it in court did not trigger the requirements of Section 106.”
The ACHP’s reasoning runs like this:
(1) Section 106 must be complied with prior to a federal agency’s “approval of the expenditure of any Federal funds on the undertaking” or the “issuance of any license.” This, of course, is true.
(2) The negotiation and filing of the consent decree did not involve federal funding for the project governed by the decree. If one ignores whatever funds the agencies expended on negotiating the agreement, this too is true -- though if one defines the negotiation of the consent decree as itself being a federal undertaking, it is quite evidentally not true. But letting that one ride....
(3) The negotiation and filing of the consent decree “did not involve a federal agency’s licensing or approval.” This strikes me as a curious and questionable conclusion.
The ACHP acknowledges that the federal agencies “had to agree with Boeing in order to jointly file the decree in court,” but it argues that this doesn’t mean the agencies are “licensing” Boeing to do the demolition, or “approving” its doing so.
Why? Two reasons:
(1) “The approval necessary for the consent decree to go into force will come from the court….and the court’s role …will not trigger Section 106 since courts are not ‘federal agencies’ as defined by the NHPA.”
(2) The consent decree (as drafted by Boeing and the federal agencies) “states that it ‘is not, and shall not be construed to be, a permit issued pursuant to any law.’”
So what we have here are a couple of federal agencies that have decided – without the consultation and public review required by Section 106 – that it’s OK for a historic property to be destroyed, and they’ve negotiated an agreement providing for such destruction and tossed in some language about how this agreement is not to be construed as a permit. Because of this statement, and the fact that the consent decree signed by the agencies will be filed with a court (which indeed is not a federal agency under NHPA), and the court will then be responsible for overseeing its enforcement, the ACHP is saying that no federal license or approval is involved, and Section 106 doesn’t apply.
Let’s imagine applying this principle of 106 review to another case. Imagine that the Mt. Vernon Ladies’ Association, a corporation more or less equivalent to the Boeing Company, decides that our first president’s old digs have gotten pretty shabby and ought to be done away with. Imagine that it’s also been discovered that George’s wine cellar has been leaking really rotten port wine into the Potomac, and the Environmental Protection Agency (EPA) wants this pollution cleaned up.
Just in passing, it’s worth noting that Section 110(a)(2)(C) of NHPA requires each federal agency to have a program that ensures that “the preservation of properties not under the jurisdiction or control of the agency, but subject to be potentially affected by agency actions are given full consideration in planning,” and that Section 110(d) of NHPA directs that “consistent with the agency's mission and mandates, all Federal agencies shall carry out agency programs and projects … in accordance with the purposes of this Act,” one of which purposes, set forth at Section 2(5) of NHPA is to “encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment.”
But let’s assume that EPA isn’t interested in that congressional direction -- what federal agency is? Let’s just focus on Section 106, and assume that EPA wants nothing to stand in the way of cleaning up that nasty port, and the Ladies’ Association is gung-ho to get rid of the mansion. It looks like all they’ve got to do is negotiate a consent decree and include some language (who cares what its legal basis is?) saying that it’s not to be construed as a permit, ask a court to make it happen, and as far as the ACHP is concerned, they’re good to go.
Now maybe that’s true. Maybe real lawyers (I don’t even play one on television) can show why the federal agencies in a case like this are under no obligation to take into account the effects of their agreement on historic properties. And maybe the Boeing plant isn’t worth saving; I have no opinion on that. But it seems strange to me that the ACHP should so willingly accept the notion that a federal agency can get out of its 106 responsibilities simply by filing papers with a court that contain some magic words.
Back in the day when I was learning Section 106, at the knees of such founding fathers as the late Robert Garvey and the still-kicking Ken Tapman (respectively the ACHP’s first executive director and general counsel), I was taught that if there was a federal official’s signature on a piece of paper directing or allowing someone to do something, that constituted a license for purposes of Section 106. Maybe I was misinformed, or misunderstood, or maybe there’s subsequent case law that vitiates this simple rule. If so, it would be good, I think, for the ACHP to advise us. It is not altogether convincing to be told that “106 doesn’t apply because a court is involved” or “106 doesn’t apply because the parties have said what they’ve signed isn’t a permit.” But it does get the ACHP off the hook of actually having to promote the consideration of historic properties under Section 106.
The case in point is the planned demolition of the Boeing #2 plant in Tukwila, Washington, where B-29s were assembled in what we’d now call the surge to win World War II. The plant may or may not be technically preservable, it may or may not have reuse potential, it may or may not be significant enough to be worth preserving – though quite a few people seem to think it is. But the possibility of preserving the plant is not being considered via the consultative processes established under Section 106 of the National Historic Preservation Act (NHPA), even though federal agencies are involved in the demolition.
Having had this brought to its attention by concerned citizens and the Washington State Historic Preservation Officer (SHPO), the ACHP issued a letter to the SHPO on September 23, finding that the federal agencies involved had no responsibility to carry out Section 106 review.
Why? Because the instrument by which the agencies have agreed that the demolition should go forward, and so advised the Boeing Company, is a consent decree which will be signed off on (presumably) by the Federal District Court. The consent decree relates to the cleanup of toxic materials at the site of the plant. The ACHP says that in its opinion, “the negotiation of the consent decree and the filing of it in court did not trigger the requirements of Section 106.”
The ACHP’s reasoning runs like this:
(1) Section 106 must be complied with prior to a federal agency’s “approval of the expenditure of any Federal funds on the undertaking” or the “issuance of any license.” This, of course, is true.
(2) The negotiation and filing of the consent decree did not involve federal funding for the project governed by the decree. If one ignores whatever funds the agencies expended on negotiating the agreement, this too is true -- though if one defines the negotiation of the consent decree as itself being a federal undertaking, it is quite evidentally not true. But letting that one ride....
(3) The negotiation and filing of the consent decree “did not involve a federal agency’s licensing or approval.” This strikes me as a curious and questionable conclusion.
The ACHP acknowledges that the federal agencies “had to agree with Boeing in order to jointly file the decree in court,” but it argues that this doesn’t mean the agencies are “licensing” Boeing to do the demolition, or “approving” its doing so.
Why? Two reasons:
(1) “The approval necessary for the consent decree to go into force will come from the court….and the court’s role …will not trigger Section 106 since courts are not ‘federal agencies’ as defined by the NHPA.”
(2) The consent decree (as drafted by Boeing and the federal agencies) “states that it ‘is not, and shall not be construed to be, a permit issued pursuant to any law.’”
So what we have here are a couple of federal agencies that have decided – without the consultation and public review required by Section 106 – that it’s OK for a historic property to be destroyed, and they’ve negotiated an agreement providing for such destruction and tossed in some language about how this agreement is not to be construed as a permit. Because of this statement, and the fact that the consent decree signed by the agencies will be filed with a court (which indeed is not a federal agency under NHPA), and the court will then be responsible for overseeing its enforcement, the ACHP is saying that no federal license or approval is involved, and Section 106 doesn’t apply.
Let’s imagine applying this principle of 106 review to another case. Imagine that the Mt. Vernon Ladies’ Association, a corporation more or less equivalent to the Boeing Company, decides that our first president’s old digs have gotten pretty shabby and ought to be done away with. Imagine that it’s also been discovered that George’s wine cellar has been leaking really rotten port wine into the Potomac, and the Environmental Protection Agency (EPA) wants this pollution cleaned up.
Just in passing, it’s worth noting that Section 110(a)(2)(C) of NHPA requires each federal agency to have a program that ensures that “the preservation of properties not under the jurisdiction or control of the agency, but subject to be potentially affected by agency actions are given full consideration in planning,” and that Section 110(d) of NHPA directs that “consistent with the agency's mission and mandates, all Federal agencies shall carry out agency programs and projects … in accordance with the purposes of this Act,” one of which purposes, set forth at Section 2(5) of NHPA is to “encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment.”
But let’s assume that EPA isn’t interested in that congressional direction -- what federal agency is? Let’s just focus on Section 106, and assume that EPA wants nothing to stand in the way of cleaning up that nasty port, and the Ladies’ Association is gung-ho to get rid of the mansion. It looks like all they’ve got to do is negotiate a consent decree and include some language (who cares what its legal basis is?) saying that it’s not to be construed as a permit, ask a court to make it happen, and as far as the ACHP is concerned, they’re good to go.
Now maybe that’s true. Maybe real lawyers (I don’t even play one on television) can show why the federal agencies in a case like this are under no obligation to take into account the effects of their agreement on historic properties. And maybe the Boeing plant isn’t worth saving; I have no opinion on that. But it seems strange to me that the ACHP should so willingly accept the notion that a federal agency can get out of its 106 responsibilities simply by filing papers with a court that contain some magic words.
Back in the day when I was learning Section 106, at the knees of such founding fathers as the late Robert Garvey and the still-kicking Ken Tapman (respectively the ACHP’s first executive director and general counsel), I was taught that if there was a federal official’s signature on a piece of paper directing or allowing someone to do something, that constituted a license for purposes of Section 106. Maybe I was misinformed, or misunderstood, or maybe there’s subsequent case law that vitiates this simple rule. If so, it would be good, I think, for the ACHP to advise us. It is not altogether convincing to be told that “106 doesn’t apply because a court is involved” or “106 doesn’t apply because the parties have said what they’ve signed isn’t a permit.” But it does get the ACHP off the hook of actually having to promote the consideration of historic properties under Section 106.
Wednesday, August 25, 2010
The ACHP on "Reasonable and Good Faith" Identification
Unaccustomed as I am to saying anything good about the U.S. Advisory Council on Historic Preservation (ACHP), I’m happy to report that in my opinion, they provided some pretty decent guidance recently about what constitutes a “reasonable and good faith effort” to identify historic properties under their regulations (36 CFR 800). This shouldn’t be a challenging question, but it seems to be; federal agencies, State Historic Preservation Officers (SHPOs) and others are forever trying to translate the simple terminology of the regulations into hard-and-fast standards, which leads to all kinds of idiotic arguments. Does a “reasonable and good faith effort” always demand an archaeological survey? A survey of possibly historic buildings? A landscape study? Must we space our archaeologists ten meters apart on the ground, or will fifteen do? Must everybody on the team have an advanced degree? Oh dear oh dear; whatever shall we do?
The ACHP’s guidance is laid out in a letter dated August 20, 2010 and signed by Reid Nelson, Director of the ACHP Office of Federal Programs. It’s addressed to an SHPO and deals with a particular case, neither of which needs to be identified here. The guidance is contained in the following lines:
In the ACHP's opinion, an agency official's identification effort is "reasonable and in good faith" and in compliance with the Section 106 regulations when it is:
(1) logically designed to identify eligible properties that may be affected by the undertaking. understanding that the regulations do not require identification of all such properties, without being excessive or deficient in light of the cited factors {i.e., the work is reasonable);
(2) not compromised by a disregard for the historic preservation responsibilities of federal agencies as set forth in Section 2 of the NHPA, or by dishonesty, such as manipulating or ignoring evidence (i.e., the work is carried out in good faith): and
(3) supported by documentation that allows reviewing parties to understand (not necessarily to agree with) the basis of its findings.
Oh sure, it could have said more. It could have emphasized the process of scoping – consider the area you’re concerned about, its character, its history, its prehistory and ethnography and sociology, discuss it with people who know about it (like those who live there), and use the resulting information to design your scope of work. It could have cited the rules laid out by the Tenth Circuit in Pueblo of Sandia v. United States (50 F.3d 856 [1995] – see http://www.achp.gov/book/case132.html), which held in essence that an agency needs to consider all the relevant background information available to it in designing its identification program, and consider applicable guidance, and not keep data from consulting parties. It could have emphasized the fact that one may need to do different kinds of identification in different parts of one’s area of potential effects (APE), or in different APES, depending on the kinds of impacts that are anticipated (physical, visual, indirect, etc.). But I’m happy to see it say as much as it does. Particularly –
That the regulations don’t require identifying every single historic property out there. You need to identify enough, in enough detail, to get a handle on what the effects will be. What percentage of the total that means depends on all kinds of factors – notably including the kinds of impacts you’re likely to have. And what may be more important than what percentage you ought to identify is how you ought to identify them, and what you ought to note about them. For example, if you’re looking (sic) at visual effects, you need to think and ask about whether a place has characteristics (like people living in it who value their view) that will be affected by changing its viewshed.
That the regulations ought to be implemented with an eye toward the responsibilities laid out in Section 2 of NHPA – that is, the responsibilities to:
(1) use measures, including financial and technical assistance, to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations;
(2) provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments;
(3) administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations;
(4) contribute to the preservation of nonfederally owned prehistoric and historic resources and give maximum encouragement to organizations and individuals undertaking preservation by private means;
(5) encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment; and
(6) assist State and local governments, Indian tribes and Native Hawaiian organizations and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities.
Too often, I think, we lose track of why we’re doing all this historic preservation, Section 106y stuff. We’re doing it because Congress, in Section 2, told agencies to do all those things. I think the ACHP has done us a favor by reminding us of this fact.
And I appreciate the final point, about documentation. The adequacy of documentation in identification ought not to be judged by weight, volume, number of fancy words or adherence to any particular set of standards, but by its understandability. It ought to be clear, it ought to be straightforward, it ought to make sense to the lay reader, and it ought to be as complete as it needs to be to allow readers to understand what’s out there and how it will be affected.
The “reasonable and good faith effort” standard is one of the great strengths of the Section 106 process, and it’s too often ignored in favor of rigid technical standards. The ACHP deserves applause for reminding us that it exists, and of what it means.
The ACHP’s guidance is laid out in a letter dated August 20, 2010 and signed by Reid Nelson, Director of the ACHP Office of Federal Programs. It’s addressed to an SHPO and deals with a particular case, neither of which needs to be identified here. The guidance is contained in the following lines:
In the ACHP's opinion, an agency official's identification effort is "reasonable and in good faith" and in compliance with the Section 106 regulations when it is:
(1) logically designed to identify eligible properties that may be affected by the undertaking. understanding that the regulations do not require identification of all such properties, without being excessive or deficient in light of the cited factors {i.e., the work is reasonable);
(2) not compromised by a disregard for the historic preservation responsibilities of federal agencies as set forth in Section 2 of the NHPA, or by dishonesty, such as manipulating or ignoring evidence (i.e., the work is carried out in good faith): and
(3) supported by documentation that allows reviewing parties to understand (not necessarily to agree with) the basis of its findings.
Oh sure, it could have said more. It could have emphasized the process of scoping – consider the area you’re concerned about, its character, its history, its prehistory and ethnography and sociology, discuss it with people who know about it (like those who live there), and use the resulting information to design your scope of work. It could have cited the rules laid out by the Tenth Circuit in Pueblo of Sandia v. United States (50 F.3d 856 [1995] – see http://www.achp.gov/book/case132.html), which held in essence that an agency needs to consider all the relevant background information available to it in designing its identification program, and consider applicable guidance, and not keep data from consulting parties. It could have emphasized the fact that one may need to do different kinds of identification in different parts of one’s area of potential effects (APE), or in different APES, depending on the kinds of impacts that are anticipated (physical, visual, indirect, etc.). But I’m happy to see it say as much as it does. Particularly –
That the regulations don’t require identifying every single historic property out there. You need to identify enough, in enough detail, to get a handle on what the effects will be. What percentage of the total that means depends on all kinds of factors – notably including the kinds of impacts you’re likely to have. And what may be more important than what percentage you ought to identify is how you ought to identify them, and what you ought to note about them. For example, if you’re looking (sic) at visual effects, you need to think and ask about whether a place has characteristics (like people living in it who value their view) that will be affected by changing its viewshed.
That the regulations ought to be implemented with an eye toward the responsibilities laid out in Section 2 of NHPA – that is, the responsibilities to:
(1) use measures, including financial and technical assistance, to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations;
(2) provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments;
(3) administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations;
(4) contribute to the preservation of nonfederally owned prehistoric and historic resources and give maximum encouragement to organizations and individuals undertaking preservation by private means;
(5) encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment; and
(6) assist State and local governments, Indian tribes and Native Hawaiian organizations and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities.
Too often, I think, we lose track of why we’re doing all this historic preservation, Section 106y stuff. We’re doing it because Congress, in Section 2, told agencies to do all those things. I think the ACHP has done us a favor by reminding us of this fact.
And I appreciate the final point, about documentation. The adequacy of documentation in identification ought not to be judged by weight, volume, number of fancy words or adherence to any particular set of standards, but by its understandability. It ought to be clear, it ought to be straightforward, it ought to make sense to the lay reader, and it ought to be as complete as it needs to be to allow readers to understand what’s out there and how it will be affected.
The “reasonable and good faith effort” standard is one of the great strengths of the Section 106 process, and it’s too often ignored in favor of rigid technical standards. The ACHP deserves applause for reminding us that it exists, and of what it means.
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