Less Than Artful Dodges

Less Than Artful Dodges: “Tangibility,” “Integrity,” and Mythic Regulatory Requirements as Ways to Avoid Considering Impacts on Historic Properties

Thomas F. King
April 24, 2008

I’ve recently come into possession of a letter signed on April 14, 2008 by Elaine Zielinski, Arizona State Director for the U.S. Department of the Interior, Bureau of Land Management (BLM)[1]. It’s addressed to the Honorable Timothy Williams, Chairman of the Fort Mojave Indian Tribe. The letter is a classic: one of the most perfect, succinct examples I’ve seen lately of how federal agencies twist the provisions of the National Historic Preservation Act to avoid actually addressing the impacts of their actions on historic properties, and to avoid actually consulting with Indian tribes (or anyone else) in a reasonable and good faith manner. I write about the letter here not to pick on Ms. Zielinski in particular, but because it is such a good example of irresponsible agency interpretations of law and policy. Similar examples could be found throughout the federal government, but few that are as elegantly constructed as Ms. Zielinski’s.

In the interests of full disclosure, I should acknowledge that I am under retainer as an advisor to the Fort Mojave Tribe in matters pertaining to project review under Section 106 of the National Historic Preservation Act, and I write this in part as an expression of my frustration, and the Tribe’s, at BLM’s resolutely irresponsible behavior in connection with a current Section 106 case. However, I do not purport to represent the views of the Tribe here, and I am writing this not as the Tribe’s consultant but as someone who deals routinely with federal agencies and Section 106, and who knows, sadly, that Ms. Zielinski’s inartful dodging is by no means unique to her, or even to her agency.

The case about which Ms. Zielinski wrote involves drilling a well on a parcel of federal land in Arizona, within the traditional territory of the Mojave. The parcel lies within a landscape that the Fort Mojave Tribe, among others, regards as spiritually significant, and within which are a number of specific locations related to Mojave beliefs about the passage to the next world of those deceased in this one. The location has been disturbed over the years by various modern developments, as well as by the meanderings of the Colorado River. In a nutshell, the Tribe says the landscape, including the well site, is eligible for the National Register of Historic Places as a traditional cultural property. BLM says it is not. Ms. Zielinski’s letter is an ostensible response to a series of questions raised by the Tribe about the basis for BLM’s determination.

The “Smother Them In Legal Language” Dodge

One of the first and most pervasive dodges in which Ms. Zielinski indulges is to solemnly inform the Tribe of legal-seeming irrelevancies. This serves (or at least attempts) to convey the impression that she speaks from a position of authority and knowledge, without actually saying anything. For instance, early in her letter she informs the Tribe that “(c)ompliance with Section 106… requires that Federal agencies take into account the effects of their undertakings on historic properties.” The Tribe, of course, is well aware of this fact. She goes on to quote verbatim several pages worth of verbiage from National Register Bulletin 15, most of which is wholly irrelevant to any of the questions asked by the Tribe or to the issues at hand.

The “Say It Again, Sam” Dodge

Having informed the Tribe of what Section 106 requires, Ms. Zielinski says that “BLM has done this” – i.e., carried out Section 106’s requirements. She alludes to having performed “archaeological surveys” and conducting “consultation,” as the means by which these requirements have been complied with. But the Tribe’s questions, to which Ms. Zielinski’s letter purports to respond, were about the rationale for specific determinations BLM had made within the context of Section 106 review, and they challenged the adequacy of BLM’s compliance with the law’s requirements. Simply informing the tribe that BLM has, in BLM’s view, carried out the requirements of the law does not answer the Tribe’s questions or address the Tribe’s challenge. Ms. Zielinski seems to think, or at least wants the Tribe to accept, that if she says something often enough, it becomes a fact.

Smokescreening

As mentioned, much of Ms. Zielinski’s letter is given over to verbatim quotes from National Register Bulletin 15, the National Register’s general guidance on how to apply the National Register Criteria for Evaluation. Most of these quotes have nothing whatever to do with the matter in question. Perhaps Ms. Zielinski or her advisors somehow find the material relevant, but I suspect that the main reason for including them is to flesh out the letter (It’s six pages long) and convey the impression of authoritativeness. It’s designed to confuse the reader; it’s a smokescreen.

The “Tangibility” Dodge

Ms. Zielinski brings her recitation from Bulletin 15 to a conclusion with the statement that “the National Register clearly requires consideration of physical, tangible, well-defined properties.” She goes on to quote from National Register Bulletin 38 on traditional cultural properties (in her only reference to this most relevant piece of National Register guidance) about how to be eligible for the Register an entity must be “a tangible property – that is, a district, site, building, structure, or object.” “Tangibility” seems to be the hook upon which she is hanging her hat.

Now, the place in question is a “site.” It is referred to as such in BLM’s own documents, and it meets the National Register definition of the term – that is, “the location of a significant event (etc. etc.) where the location itself possesses historic, cultural, or archaeological value regardless of the value of any existing structure.” The Tribe has asserted that the site, and the larger landscape within which it exists (which itself might be called a “site” or a “district” in Register jargon) have cultural value. Both the site and the landscape are “tangible.” They are pieces of real estate, doubtless recorded in the real estate records of the local county government. They are physical; one can see them, walk on them roll around on them if one so desires, and – as BLM has shown – drill holes in them. How much more “tangible” can something be? Their significance may be “intangible,” but that is in the nature of abstract concepts like significance. The significance of an archaeological site is intangible; it exists in the archaeologist’s mind. The significance of a building is intangible; it exists in the mind of the architectural historian. The significance of a traditional cultural property like the ones in question in this case is no more and no less “intangible,” but the places themselves are as tangible as the nose on Ms. Zielinski’s face.

The Archaeo-Think and Integrity Dodges

I think, though, that the word “tangible” implies something more to Ms. Zielinski and her staff than its English-language meaning. This is suggested by a portion of her letter addressing the “integrity” of the site. After regurgitating a paragraph on integrity from National Register Bulletin 15 – as usual lengthy, unexceptionable, and irrelevant – Ms. Zielinski argues that the site in question lacks integrity because it has been “disturbed.”

The notion that “integrity” demands a lack of disturbance is a very archaeological one. Never mind that what archaeologists study is often the very product of “disturbance” of the land through construction, occupation, grave digging, and the like. Once something has become an archaeological site in the (intangible) view of an archaeologist, anything that “disturbs” it diminishes its integrity. This is not necessarily the case from the standpoint of a tribe, or indeed from the standpoint of any non-archaeologist. A tribe – or other party – may not especially like the fact that a place has been bulldozed, bombed or bored into, but this may have little or no impact on how the tribe – or other party – perceives its significance. National Register Bulletin 38 explicitly says that “the integrity of a possible traditional cultural property must be considered with reference to the views of traditional practitioners.” A classic example of the proper application of this principle is the Forest Service’s determination of eligibility at Cave Rock in Nevada. Though Cave Rock has a highway tunnel bored through its guts, the Washoe Tribe regards it as retaining integrity, and the Forest Service respected the Tribe’s view when determining the Rock’s eligibility.

To the BLM, however, it appears that to be eligible for the National Register a place must have integrity in the eyes of an archaeologist, regardless of how it is perceived by those who value it. Considering the variation in perspectives between many tribes and archaeologists, this is rather like requiring that a Jew demonstrate the significance of Masada to a Nazi.

The Little Red Fence Dodge

Another concept that sneaks into Ms. Zielinski’s discussion of “tangibility” and “integrity” is that of “boundaries.” “Without clearly defined spatial limits, descriptions, and other information,” she says, it is “difficult” to determine eligibility. In other words, if you want your place regarded as National Register-eligible, you need to give it to us with a little red fence around it.

The case under consideration here is a good example of why the Little Red Fence dodge is, in a word, silly. The undertaking here is drilling a hole in the ground, at a specific site. The site extends for some distance beyond the borders of the bore-hole. The site lies within a landscape that the Tribe sees as significant; the landscape naturally extends far beyond the boundaries of the site, whatever they are. No matter where one sets up the little red fence, the bore hole – the project location – will be inside it. Boundaries are irrelevant to the agency’s consideration of effects, and hence to its compliance with Section 106.

Sometimes boundaries are relevant, but most often their relevance is limited at best. If, in this case, the drilling were taking place outside the boundaries of the site and landscape, it would probably be taken not to have a physical adverse effect on them, but it might well still have direct visual, auditory, and other direct effects, as well as indirect effects, and it might still contribute to a pattern of cumulative effect. Boundaries are necessary for record-keeping purposes where one is nominating something to the National Register, but they need be defined in considering the eligibility of a place for Section 106 purposes only to the extent such a definition is useful in judging effects.

The Regulatory Requirement Dodge

Throughout her letter, Ms. Zielinski alludes to “regulatory constraints” and “requirements.” For instance, she says, without things like rigid boundary definition, “you (the Tribe) can see why, given the regulatory constraints of defining historic properties, an agency official would find it very difficult to determine eligibility.”

In other words, “gee, Tribe, I’d love to accommodate you, but I’m constrained by those damn regulations.”

In fact, aside from one vague and misleading allusion to the Section 106 regulations Ms. Zielinski’s letter says nothing about regulatory requirements. It talks a lot about National Register Bulletin 15, an explicitly non-regulatory guideline document, and even with reference to this document it cherry-picks only those points that support BLM’s desired determination. The relevant regulations here – the Section 106 regulations – are quite flexible about determining eligibility; an agency and state or tribal historic preservation officer can decide to regard a place as eligible for the Register based on whatever information they jolly well please. Boundaries are not required. One does not have to agonize over integrity. What the regulations do require, and such guidance documents as National Register Bulletin 38 and the Secretary of the Interior’s standards and guidelines for agency programs under Section 110 of NHPA do emphasize is that consultation is required, notably with tribes. “Regulatory constraints” under Section 106 are few and far between, as long as one does a reasonable job of consultation.

The Ignorance Dodge

Toward the end of her letter, Ms. Zielinski makes the breathtaking assertion that in BLM’s eyes, those pesky regulatory constraints “preclude evaluation of landscapes for eligibility.” Landscapes, apparently, are to BLM categorically not eligible for the Register. Never mind that there are two National Register bulletins on evaluating landscapes (to say nothing of Bulletin 38; many traditional cultural properties are landscapes). Never mind that there is a National Park Service technical bulletin on landscape management, and a National Park Service program – the Historic American Landscape Survey – whose mission it is to record landscapes. Never mind that many, many landscapes are included in the National Register, and many more have been determined eligible. Never mind that BLM itself has quite properly determined landscapes eligible for the Register in such cases as that of Zuni Salt Lake in New Mexico and Indian Pass and the Medicine Lake Highlands in California. If we can ignore the existence of something, it doesn’t exist – as long as we can flummox the public about it.

Other relevant matters of which Ms. Zielinski appears to be blissfully ignorant include several court cases – notably Pit River Tribe vs. U.S. Forest Service et al and Pueblo of Sandia v. United States – that have provided direction to agencies in how to relate to tribes in the course of Section 106 review, and a host of direction outside the narrow envelope of Section 106 – for instance the American Indian Religious Freedom Act, the Religious Freedom Restoration Act, and Executive Orders 12898, 13007,and 13175 – that direct agencies variously to consult with tribes, respect tribal (and other) religious values, and interpret “regulatory constraints” flexibly in order to accommodate the concerns of tribes and low income or minority communities. Totally beyond her ken, apparently, are such relevant if non-binding international standards as the United Nations Declaration on the Rights of Indigenous Peoples and the UNESCO Convention on – what do you know? – the Safeguarding of the Intangible Cultural Heritage, which also emphasize respectful consultation across cultural boundaries.

Again, I do not mean to pick on Ms. Zielinski, or on whoever drafted her letter. Their dodgy attitudes are unfortunately all too typical of federal agencies these days. But what they and their ilk are doing is dodging – dodging their responsibilities as public servants, and they ought to be called to account for it.

[1] If you'd like to see the letter, which I'm not able to figure out how to include here, please let me know at tfking106@aol.com, and I'll send it along.

Learning from U.S. Mistakes

Environmental Impact Assessment,
Cultural Resource Management
and Historic Properties
Learning from the Errors of the United States

Cultural Resource Management

Back in the 1970s, archaeologists in the United States faced a challenge. New laws had been enacted promoting the protection of “natural resources” on the one hand and “historic properties” on the other. Government agencies were being required to conduct environmental impact assessments of their actions, seeking ways to protect the environment. How could archaeologists be sure that the places they were concerned about – archaeological sites – were protected by these legal requirements?

Among other things they needed a term to describe such sites that seemed a little grander than the esoteric term “archaeological site.” It should be a term that related somehow to “natural resources,” but of course archaeological sites are not “natural,” they are cultural in origin. “Historic property” was the term that architectural historians used for the cultural places – old buildings and structures – that they were interested in, but that term didn’t describe archaeological sites very well – particularly prehistoric archaeological sites.

So archaeologists invented the term “cultural resources,” and called what they did – surveying to find archaeological sites and excavating them to “mitigate” the impacts of construction projects on them – “cultural resource management.”

These terms have gained broad acceptance in the United States, and are being used increasingly in other nations. This, I suggest, is most unfortunate.

Consider for a moment all the “resources” that a culture may think valuable. Consider, for example, an indigenous group living in a forest. Among the resources that it uses to sustain its culture, surely, are:

• The indigenous language;
• Place names;
• Stories and traditions;
• Songs;
• Rituals and religious practices;
• Religious beliefs;
• Subsistence practices;
• Animals and plants;
• The landscape in which the group lives, or that it uses;
• Water sources, and sources of other natural resources; and
• The group’s social organization and family structure.

Now imagine that some government-regulated project is proposed in the vicinity – say, a logging project – and either government or the project sponsor performs an environmental impact assessment (EIA). If it follows the model employed in the United States, production of this EIA will be supervised by environmental scientists of some kind, perhaps biologists. It will include an element dealing with “cultural resources,” but no one will define this term. Archaeologists will most likely be in charge of finding and assessing impacts on such resources.

Will the archaeologists consider the indigenous group’s social organization? Its religious practices? The plants and animals and water sources it values? Its subsistence practices? No, the archaeologists will consider impacts on archaeological sites. But in the U.S., they will say that they have performed a “cultural resource” analysis; that they have done “cultural resource management.” The biologist in charge of the EIA is likely to take the archaeologists at their word; after all, they are the experts. So the report on the EIA, in its “cultural resource” section, will talk about archaeological sites, and perhaps old buildings and structures. Most of the indigenous group’s cultural environment will be ignored, and impacts on its religious practices, social organization, plants and animals, and so on will simply not be analyzed.

It may be that some of these important cultural aspects of the environment will be addressed by others working on the EIA – perhaps those performing social impact assessment (SIA). But in the United State at least this often does not happen, because “social” impact assessment becomes equated with “socioeconomic impact assessment,” and focuses only on easily quantifiable economic factors. Religious practices, beliefs, social structures, the cultural significance of plants and animals, even many aspects of subsistence are ignored. So if the logging project goes forward, perhaps the archaeological sites get protected somehow, or are excavated before they are destroyed. But most of the “cultural resources” that matter most to the indigenous group are not considered, and are lost.

So here is one lesson to learn from the mistakes the United States has made: say what you mean! If archaeological sites are the subject, call them archaeological sites; do not use some vague euphemism like “cultural resource.” On the other hand, if you say you will assess impacts on “cultural resources,” consider all such resources that are relevant to the area, the project, and the people and cultures involved.

Historic Properties

Another mistake the United States has made is to use its “National Register of Historic Places” as the centerpiece of its historic preservation system. The National Register is a list maintained by the U.S. National Park Service. The list includes “districts, sites, buildings, structures and objects” significant in U.S. history, prehistory, archaeology, architecture, engineering, and culture. Under U.S. law, those doing environmental impact assessment must consider impacts on places included in the Register and on those not yet included but eligible for the Register. If there are questions about whether a given place is eligible for the Register, they are resolved by the Register’s “Keeper,” a National Park Service official.

The major problem with this system is its anti-democratic character. Again consider our hypothetical indigenous group. Imagine that there is a place where the group collects plants used in a very important healing ritual. If the group wants this place to be considered in the EIA on the logging project, and the project is in the United States, the group is going to have to convince those doing the EIA that its plant-gathering area is eligible for the National Register. It will have to frame its argument for eligibility in terms that are meaningful to “professionals” – mostly architectural historians and archaeologists – in the National Park Service and the offices of the State Historic Preservation Officers. These people are likely to ask all kinds of strange questions – what are the boundaries of the place, how often do you use it, how long has it been used? And if they decide, for whatever reason, that the place is not eligible, then it receives little or no consideration in the EIA. Is this reasonable in a democracy? That government should consider its impacts only on things that government decides are important? Should not the people have some say in the matter, when the importance of a thing is theoretically based on their cultural values?

So another lesson to learn, I believe, is not to place too much emphasis on lists like the National Register. Lists can be important tools in bookkeeping; they are less useful in planning and environmental impact assessment, and if they assume the status of a national institution as the National Register has in the U.S., they can suppress the voice of the people in the protection of their cultural patrimony.

A Better Model

A better approach to dealing with cultural resources in EIA, I believe, is found in the Akwé:Kon Guidelines issued in 2004 by the Secretariat of the Convention on Biological Diversity. These remarkable guidelines recommend the conduct of integrated “cultural, environmental, and social impact assessments” when planning development. These assessments are to be carried out in close consultation with local communities, and are to address impacts on whatever is important to such communities. If environmental impact assessments were done along the lines recommended by Akwé:Kon (a Mohawk Indian word meaning “everything in creation”) – assuming they were done responsibly and well – then we would actually be doing “cultural resource management” and we could largely dispense with esoteric national lists like the U.S. National Register of Historic Places.

In suggesting a democratic, consultative approach to “cultural resource management” that looks at all aspects of the cultural environment rather than just at archaeological sites and historic buildings or structures, I do not mean that such sites, buildings, and structures should be ignored. Of course, they should be considered in EIA in a way that is sensitive to their importance in archaeological research and architectural patrimony. But what we should not do is focus all our attention on archaeological and architectural matters to the exclusion of what matters most to local people whose cultural environments are affected by modern development. The United States has unfortunately allowed itself to fall into this elitist, antidemocratic trap; others, I suggest, would do well to try to avoid it.

Bibliography

Secretariat of the Convention on Biological Diversity
2004 Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities. CBD Guidelines Series, Montreal, http://www.cbd.int/doc/publications/akwe-brochure-en.pdf

Corruption

In a talk in Denver recently, I used the word "corrupt" with reference to today's systems of environmental impact assessment (EIA) and cultural resource management (CRM). A colleague in the audience very properly challenged me to define what I meant by the term, and to say just who I was tarring with the corruption brush. I'll try to do both things here.

"Corruption," according to the Oxford Dictionary, means the destruction or spoiling of anything, esp. by disintegration or by decomposition with its attendant unwholesomeness and loathsomeness. That's what I mean in using the word with reference to the EIA and CRM industries.

The purpose of EIA is to conduct honest, thoroughgoing analyses of environmental impacts, and to put the results of these analyses before decision makers and the public so all can be informed in their judgments about a project’s costs and benefits. The purpose of CRM – at least, that part of CRM in which most of us work – is to do the same thing with reference to the environment’s cultural aspects, in consultation with interested parties. How many of us, I wonder, can honestly claim to perform such analyses and consultations? If we’re truthful, I’m convinced that the number would be very small. Most of us, I suspect, instead see our jobs as being – in the words of an “NHPA game” distributed by the U.S. Army Environmental Center to Army CRM specialists – to complete needed projects, in compliance with (the law), in the least number of moves?

This transformation of our purpose – from that of honestly assessing and addressing impacts to “completing needed (sic) projects…in the least number of moves,” is a corruption of that purpose, and hence of our practice and ourselves. We are well on the way to being spoiled, and as a result are becoming loathsome – or at the very least useless.

But, you protest, the “NHPA game” says that it has to be played “in compliance with the law,” so where’s the problem? The problem is that laws like NEPA and NHPA are not like, say, the highway speed laws. There’s no easy to understand, universally agreed upon, standard for compliance. A speed limit is a speed limit, set down in miles or kilometers per hour, but what is compliance with NHPA or NEPA? It’s easy to say that compliance means following the regulations, but that’s deceptive – first because (in my experience) most practitioners have exotic and ungrounded assumptions about what the regulations say, and second because the regulations really are not very explicit. It’s perfectly possible – easy, even – to produce an environmental assessment or impact statement, or to do something that passes for compliance with section 106, without in fact honestly assessing impacts at all, and without effectively consulting the concerned public. People and agencies do it all the time, and the impulse to get the job done in “the least number of moves,” to advance our clients’ interest in completing “needed (by them) projects,” drives us toward this sort of “compliance.”

It's well accepted that power corrupts, and we've evolved CRM and EIA systems that ultimately are all about power relationships. Clients -- understandably and inevitably -- have absolute power over their contractors, which means that however ethical a consultant may want to be, however honest and honorable, he or she is always beholden to his or her client, and there is powerful, powerful motivation to be part of the client's team. Most of us have accepted this as "the way it is," and have even become comfortable with it, but it can't help but be corrupting. We become interested in seeing our clients' projects succeed, and that can't help but influence the way we define the scope of our work, interpret our data, and interact with others.

I do not mean to tar any particular individual, firm, or agency with the brush of corruption, though I have no doubt that some of each could be thus described. My point is that the system is inherently corrupting, and as time passes with no corrective action, we (and the environment) are bound to suffer accordingly.

What can we do about it? I'm not sure. Third party contracting is probably a good idea, in which the project proponent pays for an impact analysis but some outside party -- a regulatory agency, for instance -- actually supervises the work, but how can that be made to work without creating a bigger, more cumbersome bureaucracy? And what sort of honesty or public accountability have we seen recently from such regulatory and oversight agencies as the U.S. Environmental Protection Agency, the Council on Environmental Quality, or the Advisory Council on Historic Preservation?

Or from such state-level bodies as the State Historic Preservation Officers (SHPOs)? If the SHPOs are any example, we can’t expect state agencies to hold federal agencies or other project proponents to high standards. However the section 106 regulations may pontificate about the SHPOs representing the interests of the state’s citizens in historic preservation, all the pressure on the SHPOs seems to be to expedite review of projects, and hang the public. Except the pressure they get from NPS to impose and enforce mindless standards that frustrate project proponents and the public alike.

But there must be a way, and we ought to be looking at alternatives. We ought to be examining what other countries are doing, and constructing and playing out possible options. For starters, we need to recognize that there really is a problem – that minimalist “compliance” with the letter of the law, expending the least possible effort with the intent of speeding projects forward, really is a corruption of the intent of laws like NEPA and NHPA, however uncomfortable it may be to acknowledge it.

Splinters For a Platform

I for one would like to kick around ideas about what we should look for in a presidential platform splinter (it would hardly be a plank) on cultural resources. So I posted the following yesterday on ACRA-L.

I’ll start by stipulating that I’m a lifelong Democrat, and a supporter of Barack Obama. At the same time I’ll say that in terms of demonstrated thoughtful support for initiatives that support the kind of thing we do (or ought to do), it’s hard to beat John McCain. I’m thinking of his long-time sponsorship of the National Institute for Environmental Dispute Resolution, which applies the principles on which section 106 review is based (despite their near-abandonment by the Advisory Council on Historic Preservation) to the management of environmental impacts in general.

That said, let’s consider: whichever party one supports, and whatever candidate, what would we like whoever’s elected to do in terms of CRM? Here are my opening suggestions, which naturally reflect my beliefs that (a) impact assessment and mitigation are the heart and soul of CRM; (b) that CRM is tightly related to environmental impact assessment (EIA); (c) that it ought to be about giving a fair shake to things that are important to ordinary people, not just specialists; and (d) that the CRM and EIA systems are in serious trouble, despite the happy talk we get from NPS, the Advisory Council, and the SHPOs. I didn’t mean to make them the Seven Rs; they just came out that way. They’re in no particular rank order.

Reformulate environmental, social, and cultural resource impact assessment.

Nobody wants to talk about it, but review of project impacts under NEPA, Section 106 of NHPA, and related authorities has devolved substantially into the generation and exchange of paperwork, into mindless adherence to the (often counterproductive and overly complicated) dictates of regulatory authorities (e.g. SHPOs) and – most damagingly – into client-contractor relationships that paper over project impacts and frustrate the interests of the public. It will be a difficult job – because the regulatory agencies and contractors have vested interests in the status quo, and the advocacy groups can’t bring themselves to advocate anything but its continuance with more funding – but the new president needs to put some good minds to work reformulating the process of impact analysis -- seeking to make it honest, straightforward, transparent, efficient, and consultative. We should end the inherently corrupting practice of having project proponents hire and supervise the consultants who assess the impacts of their projects, and simplify review processes to a point at which citizens can participate in meaningful ways.

Reform the management of federal land and resources in the interests of future generations
We need a thorough review of federal agency policies and how they are implemented, to undo (to the extent it’s possible) the current administration’s policy of carte blanche for private energy extraction, resource development, and other private exploitation of federal and tribal land and resources. This is not to say that the federal estate should be locked up, simply that balance needs to be restored in the public interest, and agencies need to understand their duties to be those of stewards, not facilitators of every cockamamie development scheme that comes along. It is also not to suggest support for things like the recent recommendations of the National Trust for Historic Preservation to the Bureau of Land Management. Some of the Trust’s recommendations are sensible, but many are mindless (“Nominate more places to the National Register”) and the Trust’s general tendency to want more money thrown at every preservation problem, while understandable, needs to be viewed critically.

Rejoin the international community
We’ve largely abrogated leadership in international environmental and cultural resource management, but we ought at least to be responsible followers. For starters (besides joining the team in trying to reduce global warming), the U.S. should become party to the UN Declaration of the Rights of Indigenous Peoples, the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, and (in principle if not in its particulars, some of which are silly) the UNESCO Convention on the Intangible Cultural Heritage.

Rethink police action as a cultural resource management tool
The assumption that police action can control traffic in antiquities, whether in the US or internationally, needs critical reconsideration. The thriving business done by antiquities dealers both licit and illicit despite ARPA and a variety of international conventions and agreements indicates that some other approach is in order. Personally, I think legalization with regulation is the way to go, but at the very least, a thorough, openminded review is needed of alternative ways to address the problem.

Respond to ongoing environmental change
We can’t stop the seas from rising, and their doing so is going to force large-scale displacement of people and facilities from coastlines and islands into the continental and high island interiors. These displacements are going to have serious impacts on natural and cultural resources. We need to undertake concrete programs NOW to assess these impacts and adopt means of mitigating them. At the same time we need to attend (to the extent possible) to the impacts of sea level rise itself – the erosion of coastal cultural sites, the inundation of culturally important built and natural resources, and the effects of more frequent hurricanes and other severe weather events.

Resolve conflicts between historic preservation standards and alternative energy development
Can windfarms in the viewsheds of historic places be made acceptable to people who live in or use such places? Can solar panels be designed that are aesthetically pleasing replacements for traditional slate, shake, or tile roofs? Are there ways to extract geothermal energy and harness hydropower in culturally sensitive landscape with little or no damage? What sociocultural impacts are likely from the extensive production of biofuels, and what can be done about them? I certainly don’t know, but these are issues to which someone ought to be seriously attending.

Revisit repatriation
I’ve written elsewhere about the fundamental flaw in NAGPRA and similar laws – the notion that people can own one another, so that a person’s remains can and should be the subjects of dispute over ownership. It seems, to judge from some of the discussions I’ve seen on the World Archaeological Congress listserv and elsewhere, that others are beginning to come to similar conclusions – in short, that our policies ought to be based on respect for the dead, rather than on ownership. A full, open, no-holds-barred rethinking of the principles underlying NAGPRA and the policies that arise from it might have very fruitful results.

Those are my top-of-the-head ideas – none of which, I hasten to say, I have any way to advance through political processes. Any other ideas, or reactions?
Tom King

Cumulative effects

I'm posting the following paper, presented back in '06, in the hope of garnering some critical comments. I'm thinking about reworking it into something with broader relevance both geographically and topically, and my doing so would benefit from colleagues' thoughts. If you're interested in doing so, please post comments here or send them to me at tfking106@aol.com.

Thanks,

Tom

The Cumulative Impacts of Transportation Projects
On Cultural Resources:
What Are They and How Can We Assess Them?
Paper presented at the Summer 2006 meeting of the
Archaeological and Historic Preservation in Transportation (ADC50) CommitteeTransportation Research Board of the National Academies July 23-26, 2006Williamsburg, Virginia

Thomas F. King
SWCA Environmental Consultants

What are cumulative impacts?

The regulations of the Council on Environmental Quality (CEQ), governing implementation of the procedural provisions of the National Environmental Policy Act, direct agencies preparing environmental assessments to consider whether the action they’re reviewing is related to other actions with … cumulatively significant impact. (40 CFR 1508.27(b)(7)).

The regulations of the Advisory Council on Historic Preservation, governing implementation of Section 106 of the National Historic Preservation Act, say that adverse effects on historic properties may include reasonably foreseeable effects…that may occur later in time, be farther removed in distance, or be cumulative (36 CFR 800.5(a)(1)).

What does this “cumulative impacts” stuff mean? And how does whatever it means relate to the historic places that most of us in this conference trouble ourselves about most of the time?

CEQ’s regulations define the term as:

…the impact on the environment which results from the incremental impact of the action (being reviewed) when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.

They go on to note that:

Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time (40 CFR 1508.7)

But how minor is “minor?” And how long a “period of time” should we deal with? Neither CEQ nor ACHP is very helpful; CEQ’s guidance is a mass of circumlocutions and the ACHP’s is nonexistent. We’re pretty much on our own.

I’ve recently been involved in a transportation case here in Virginia that has given me some notion of how to address cumulative impacts on historic places in Section 106 review. I’d like to take this opportunity to share what I’ve learned.

The Broad Run Bridge and US 15/29

U.S. Routes 15 and 29 come together just northeast of Broad Run in Prince William County, Virginia, and continue together southwest across the stream and through the village of Buckland. The road crosses Broad Run on a pair of bridges built in 1953 and 1980, near but not on the site of an 1807 stone bridge rebuilt in 1823 by Claudius Crozet, Napoleon Bonaparte’s bridge engineer. The road today is four lanes wide, but back in the 1950s the Virginia Department of Transportation (VDOT) acquired right-of-way from Broad Run on to the southwest sufficient to allow widening the road to six or more lanes. A plan developed by the Northern Virginia Transportation Coordinating Council[1] and adopted by the Prince William County Board of Supervisors in 1999 -- the Northern Virginia 2020 Plan[2] – proposes expansion to six lanes by 2020.

The relationship between highways and suburban sprawl is pretty well established, and is nowhere better exemplified than in Northern Virginia. In simplest terms it’s a matter of “build it (the highway) and they (shopping malls, residential tracts) will come.” In reality the relationship is somewhat more complex and less linear – a swirl of positive feedback loops in which development begets highways which beget more development. At present in Prince William County, sprawl is chewing up the countryside on the northeast side of Broad Run. To consume the Buckland area, it needs more traffic lanes across the stream and on to the southwest.

More traffic lanes, that is, through Buckland, a remarkably well-preserved 18th-19th century mill village and its associated cultural landscape, where a group of dedicated property owners are putting together a plan to preserve the town and make it a center for historical studies and education. And through the Buckland Mills Battlefield, a relatively intact Civil War landscape where J.E.B. Stuart sent George Armstrong Custer fleeing in a battle sometimes called “Custer’s First Stand,” though Custer didn’t stand long.

The project currently under Section 106 review is the replacement of the deck on the 1953 bridge, which carries southbound traffic across Broad Run. The bridge is old and deficient, and there’s no argument over whether it needs fixing. It does. The controversy is over how to fix it.

VDOT originally proposed to replace the existing 33-foot wide bridge deck with a new one some 56 feet wide[3]. This near-doubling of the bridge’s width was handled as a categorical exclusion under NEPA and a Nationwide Permit under the Corps of Engineers’ Clean Water Act regulations, but it ran into major local opposition.

The Buckland Preservation Society, an organization of local property owners, is anxious to avoid letting their town be swallowed by sprawl. They have garnered support for a bypass around Buckland, which could allow the existing Rt. 15/29 to be reduced to a historically appropriate scale and permit the residents to implement a program of adaptive use and restoration that they hope would make Buckland into a center for the study and public appreciation of Virginia history and historic preservation. In their eyes, widening the Broad Run Bridge is a step in absolutely the wrong direction – toward implementing the Northern Virginia 2020 Plan and effectively giving their community to the developers. The Preservation Society has been joined in its opposition to the project by the American Battlefield Preservation Program of the National Park Service and by the National Trust for Historic Preservation, which has included Buckland in the “Journey Through Hallowed Ground,” a Trust-coordinated program to preserve and raise public awareness of the surviving historic resources along the Old Carolina Road between Gettysburg, PA and Monticello, VA[4].

In Section 106 terms, the immediate question has been whether the bridge reconstruction would or would not have adverse effects on Buckland and the battlefield. VDOT and FHWA have said no; the Preservation Society and its allies say yes. There are some other issues involved, but at the core of the argument are cumulative impacts.

The Buckland Preservation Society says the project is part and parcel of the Northern Virginia 2020 Plan. VDOT and FHWA say no, it’s a standalone bridge repair. The Virginia SHPO and Advisory Council on Historic Preservation have been unwilling to concur in FHWA’s “no adverse effect” determination, largely because of doubts about cumulative impacts.

What I’ve learned 1: discerning cumulative impacts

Honorable people can disagree about how to regard the bridge project, and I don’t intend to rehash the arguments we’ve been having. What I do want to discuss is what immersion in this case has taught me about analyzing cumulative impacts.

The main thing it has taught me is that with respect to soft and squishy environmental variables like historic preservation, cumulative impacts analysis may not be so complicated after all. I think that perhaps – quite likely, in fact – we confuse ourselves by worrying about things like how far into the past and future we have to look in order to characterize cumulative impacts. What we have to do, I think, is simply look for patterns.

Are there general patterns of change in the human environment (under NEPA), in the environment relevant to historic properties (under Section 106)? If so, how does the project under review relate to them?

That there is a pattern of suburban sprawl in Northern Virginia is a no-brainer. That highways contribute to sprawl is obvious. That the existing highway through Buckland and the battlefield has had adverse effects in the past is indisputable – it has resulted in demolition of contributing buildings and a whole lot of cars and trucks barreling through the landscape. That it is currently having impacts is plain to see if you drive the highway, and particularly if you try to turn on or off it, or cross it. That the Northern Virginia 2020 Plan provides for a wider highway along Rt. 15/29 is literally written down in black and white (and color). Widening the existing highway, letting more cars and trucks roar through, to service more houses and businesses, cannot help but have future adverse effects on Buckland and the battlefield. There is, in other words, a clear pattern of accumulating – that is, cumulative – adverse effects, beginning in the past and extending into the not-too-distant future. The extent to which the Broad Run Bridge reconstruction contributes to this pattern can certainly be debated. To me it seems, at the very least, to do nothing to undo the pattern, reverse the trend, and as we used to say back in the days of my misspent youth, if you’re not part of the solution you’re part of the problem. Some members of the Buckland Preservation Society see a more direct and contributive relationship – that the expanded deck could itself accommodate increased traffic, or be an incremental step toward the Northern Virginia 2020 six-lane configuration. Be this as it may, I think the pattern of cumulative impacts is clear. Our business is to analyze the bridge project’s contribution (if any) to that pattern. That I think, is really all that cumulative impacts analysis is about: define the patterns and consider whether and how our project relates to them. Sometimes this may require quantitative hair-splitting about how far into the past and future to carry our analysis, but quite often, I suspect, it does not.

What I’ve learned 2: avoiding discernment

The other thing I’ve learned is how easy it is to miss the forest of cumulative impact patterning while bumping into the trees that sprout from assumptions about standard criteria and methods. At various times during consultation on the effects of the Broad Run Bridge, my clients and I have run into the following contentions – all presented by authoritative participants in the consultation as FHWA policy, official guidance, well-established good practice, or logic. We have been told that FHWA and VDOT need not or even cannot consider cumulative impacts because:

This is a maintenance project.

So if the National Park Service used jackhammers to maintain the faces on Mount Rushmore, it wouldn’t need to consider the cumulative impacts of doing so? There’s nothing in the NEPA or Section 106 regulations that exempts maintenance projects.

This kind of project is categorically excluded from review under NEPA.

This is simply a variant on the “maintenance project” theme. Under the NEPA regulations categorically excluded projects are supposed to be checked to make sure there are no “extraordinary circumstances” requiring further review, and if they are, they’re to get it. The fact that bridge reconstructions in general are categorically excluded doesn’t mean that this particular bridge reconstruction should be. And the fact that something is categorically excluded under NEPA doesn’t mean it’s categorically excluded from Section 106 review.
The project has independent utility and logical termini.
So would, say, a new twelve-lane highway up the Shenandoah Valley; would this mean we wouldn’t need to consider its contributions to cumulative impact on the valley? Independent utility and logical termini indicate that a project isn’t merely a segment of something bigger; they have nothing to do with whether the project contributes to cumulative impacts.
The purpose of and need for the project are public safety.
Yes, and? Purpose and need are things that an alternative must address in order to be viable; they don’t excuse an agency from doing any particular kind of impact analysis. Everyone wants the public to be safe, but NEPA and Section 106 suggest that we ought to try to make it so without destroying the environment. We can’t meet that requirement if we don’t analyze impacts.
The Northern Virginia 2020 Plan isn’t VDOT’s or FHWA’s plan, so we don’t need to (or can’t) consider it.

Nice try, but cumulative impacts are typically not all the products of the same change agent. Their multiple sources over time are among the things that makes them “cumulative.” Recall that the NEPA regulations direct us to consider past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.

We don’t analyze speculative impacts, and a project is speculative until it’s funded. Widening U.S. 15/29 hasn’t been funded, so it doesn’t need to (or can’t) be considered as part of cumulative effects analysis.

This reminds me of an excuse I’ve tried with my wife from time to time. “Well, dear, I waited till now to tell you about next week’s business trip because I didn’t buy my ticket until today.” No, that really doesn’t fly. Waiting to consider the effects of a project until it’s funded not only would make cumulative impacts analysis impossible, it would stand the whole NEPA process on its head.

There’s no necessary link between widening Rts 15/29 and sprawl.

No, it’s certainly possible that a widened 15/29 will be used exclusively by tourists heading south for Charlottesville or the Blue Ridge, or by shoppers at boutiques that Buckland residents will put in along the roadside. It’s also possible that it will be used to guide flying pigs north to Capitol Hill porkbarrels. In a state whose recent gubernatorial contest turned substantially on issues of sprawl and transportation, it should be hard to keep a straight face while laying THAT proposition on the table.

Cumulative effect is the product of adding the direct and indirect effects of a project to the effects of all other past, present, and reasonably foreseeable future actions. Reconstructing the bridge deck has no measurable impact itself, so there can be no contribution to cumulative effect.

This argument at least doesn’t fail the laugh test, but I still think it’s wrong. Whether reconstructing the bridge could have direct effects by allowing increased traffic flow through Buckland and the Battlefield is debatable, but setting that debate aside, let’s assume for a moment that it will not, cannot allow any measurable increase in traffic flow. Does the project therefore make no contribution to cumulative effect?

First consider the word “measurable.” Does an effect have to be measurable, in quantitative terms, in order to be significant? I suspect that many in the transportation planning business would say “of course,” and I sympathize. How can something be real if you can’t measure it? But many things can’t be measured, at least in quantitative terms, and the ambience of a historic community or a cultural landscape is surely one of them. Most examples of cumulative impact analysis provided in books and agency guidelines deal with things like air and water quality: past actions have put X ppm of gunk into a medium; current actions are pumping in Y ppm, future projects by others are likely to contribute Z ppm, and this project will put in or take away N ppm, so the cumulative effect is X+Y+Z+/-N. We just can’t generate that kind of equation with historic properties and other cultural resources, but that doesn’t mean they’re not parts of the environment, or not subject to impacts, cumulative or otherwise.

But cars and trucks are measurable, countable, and if the reconstructed bridge won’t allow any more of them to rumble through Buckland than rumble through it now, doesn’t that mean it doesn’t contribute to cumulative impacts?

I’d say no, it doesn’t mean that. I come back to my old saw about being part of the problem or part of the solution. The traffic situation in Buckland right now is a very damaging one from the standpoint of those who value the village and the battlefield – there are just too many vehicles, moving too fast, and some percentage of those driving them would be willing to tolerate a bottleneck along their commuting route for a few years until somebody widens that damn bridge, and hence will buy homes or frequent businesses in or beyond Buckland and hence will contribute to sprawl. Maintaining the status quo is an adverse effect on Buckland and the battlefield, and keeping the bridge for another ten or twenty years, even at its present width, maintains that status quo.

I’m not saying the bridge should not be reconstructed, that we should let if fall down with a school bus or two on it. I’m simply saying that keeping it as it is contributes to the ongoing cumulative adverse effect of the highway on the historic properties. Building a bypass, or in some other way reducing the need for people to drive through Buckland, while reducing the two-bridges across Broad Run to one and the highway to one lane each way, would contribute to solving the problem. Keeping the bridge as is does not. There’s a continuing cumulative adverse effect, and we ought to consider it under NEPA and Section 106.

Conclusion

So to summarize, I’ve learned four big things from the case of the Broad Run Bridge:

Cumulative impacts are not necessarily hard to come to grips with; they are sometimes – perhaps often – portrayed in documents as readily available as the Northern Virginia 2020 Plan.
We make it hard to grapple with cumulative impacts by insisting that they be quantifiable, and by trying to establish standard rules for what will and will not be considered.
People believe in a number of rules about cumulative impacts analysis – mostly rules that let them not conduct such analyses – that upon examination make no sense.
Even a project that itself contributes nothing new to the accumulation of impacts can still be part of a cumulative impact pattern, which should be considered when making planning decisions.

And the approach I’d advocate to cumulative impacts analysis is a very simple one, which also has four parts:

Look for patterns in what’s happening to the area;
Figure out whether and how the project we’re examining relates to these patterns;
Decide whether the relationship is positive or negative, or both; and
Consider ways to accentuate the positive and eliminate the negative.

In working on that last part of the analysis – which really goes beyond analysis, into the stuff of impact mitigation – we need to think outside our usual box, in which mitigation measures are usually quite specific – excavate this, record that, avoid this other thing – and related to quite specifically defined impacts. In the Buckland case, for example, if we can agree that the general pattern of transportation-supported sprawl is a negative one in the environment under consideration, we can consider ways to reduce sprawl’s severity or even to keep it from happening – but the methods we find will not be obviously related in some linear fashion to any specific project we’re likely to review under Section 106. They’re going to be things like pursuing the bypass around Buckland, perhaps promoting new incentives for property owners to donate conservation easements, and seeking ways to undo VDOT’s half-century old acquisition of land for highway expansion through Buckland. Some of these mitigation vehicles are going to be things that FHWA and VDOT can’t do by themselves, or do at all; we’re going to have to bring in other agencies, local governments, members of the State legislature and the Congress. We’re going to have to actually do something “holistic” about land use planning and historic preservation, rather than just talking about it.

If we can’t stretch our imaginations sufficiently to do this sort of thing, there’s not much use talking about the cumulative effects of transportation decisions on phenomena like sprawl in places like Northern Virginia. Our analyses will serve no purpose, and our talk will be nothing but hot air.

Notes:
[1] A consortium of Northern Virginia counties and cities. See www.virginiadot.org/projects/nova/nv2020/overview.htm
[2] See www.virginiadot.org/projects/nova/nv2020/
[3] During consultation, the width was reduced to 48 feet and most recently to 36 feet….(revise based on next steps in consultation).
[4] See http://www.hallowedground.org/who-we-are/partner-organizations.html

The Mob

Well, the mob is out in full cry, brandishing its pitchforks and cudgels, howling for the blood of heretics.

Or to be a bit less picturesque, the archaeological societies of the nation are joining together to expunge from the discipline all those who might be tempted to work with "traffickers" in artifacts. The latest convert, to judge from the Society for American Archaeology’s latest Archaeological Record (September 2007, p. 10), is the Register of Professional Archaeologists. I suppose RPA can't really help itself, since it's the creature of such mob leaders as the Archaeological Institute of America and the SAA. And the RPA's leader, Jeff Altschul, told me in a recent email that there is "overwhelming support" in his organization for a change in the RPA code of conduct to prohibit registrants from participating in commercial ventures. The new language goes like this:

An archaeologist shall not be involved in the recovery, buying or selling of archaeological artifacts for sale or other commercial activity, or be employed by or contract with a company whose stated purpose is to recover archaeological artifacts for sale or other commercial purposes.

No doubt RPA will join its constituent organizations in thundering against commercialism, and then pat itself on its corporate head for its ethical superiority. Maybe this is a good thing; it is at least consistent with the Register's primary purpose of making its registrants feel good about themselves. The fact that it will almost undoubtedly accelerate the destruction of archaeological sites is probably beside the point.

Prohibition is a blunt instrument, particularly when wielded by those with no power to enforce it. We all know what happened when the U.S. tried to prohibit the consumption of alcohol. Many of us have had first hand experience flaunting the continuing prohibition on the use of recreational drugs. These prohibitions have had the full force of the state behind them. I wonder what makes archaeologists think they -- with no power whatsoever -- can prohibit the commercial traffic in antiquities.

If forced to answer this question, I imagine an honest supporter of the RPA prohibition would say that it is not meant to prohibit commercial traffic, only to prohibit archaeologists from participating in it. But if that is so -- if it isn't designed to stop the practice that is actually destroying archaeological sites and data, but only to keep archaeologists from documenting those sites and data as they are destroyed, does this not suggest a degree of counterproductivity?

Nations and international organizations -- no more immune to hysteria than professional bodies -- have of course enacted laws and issued declarations against artifact trafficking, and based on their own statistics may be able to report a measure of success. A collection is intercepted in transit here; an artifact is repatriated there; a dealer or digger is prosecuted someplace else. But are these actions making a dent in the international antiquities market? Since we have no real data on that market, we cannot know, but to judge from what we see in the popular media, it appears not. We're told that antiquities looting is rife in Iraq and Afghanistan, in Peru and Chile; it certainly continues throughout North America. Those looters are not looting just for the fun of it; they have people to whom they sell the stuff, and there is -- must be -- a voracious cadre of collectors who make it worthwhile for such dealers to deal. Prohibition of antiquities trafficking, I suggest, has been no more effective than prohibition of alcohol consumption or the puffing of marijuana.

But who cares, really? What's important to a mob is not whether its cause makes rational sense, but how pursuit of the cause makes its members feel. In generating feelings of propriety, the imposition of ethics like that of the RPA are doubtless highly effective. Everyone can feel so good about themselves, so professional, and that's really far more important than the condition of the archaeological record, isn’t it?

When prohibition of alcohol consumption didn't work, governments re-legalized it and sought to control it through various forms of regulation. Some regulatory measures work pretty well; others don't; there's room for productive argument about how to tweak the rules and systems. The U.S. is gradually shuffling its way toward some kind of similar accommodation with regard to recreational drugs. Debate continues about how best to control access to firearms and regulate abortions. Why, I wonder, can't we try something similar with regard to the private ownership of and commerce in antiquities?

I have no way of verifying it, but I suspect that a substantial percentage of the people who collect antiquities would prefer to do so legally, and would more highly value an object with documented provenience than one without. If this is so -- and again I stress that neither I nor anyone else knows whether it is so -- then it ought to be possible, to some extent at least, to co-opt the commercial market, to dry up the market for illicit artifacts by creating one for those gathered using archaeological methods. But such a market could be created, of course, only if we actively engaged with the traffickers, rather than prohibiting such engagement.

Would engagement be a perfect or complete solution to the problem of looting? Of course not -- any more than engagement with those who traffic in booze is a perfect solution to alcohol abuse. But however shocking and saddening it may be to the moralists at the head of the mob, that's the way the world works. Even with things on whose prohibition there is broad popular agreement -- murder, rape, incest -- we find ourselves having to make nuanced distinctions in order to accommodate the shades of gray with which the real world presents us. Is it all right to kill in self-defense? In war? When is sex consensual and when is it not? How closely related can a given couple be, in a given society, and still be acceptable sexual partners? As ostensible social scientists, we ought to be able to work within such imperfect human systems to achieve our goals. But we are not; we are just as simple-minded as any other mob.

So the RPA will doubtless join its fellow acronymous archaeo-organizations --SAA, AIA, SHA, et al -- in prohibiting its members from dealing with commercial interests, and things will go on as they are. Except every now and then some poor dope who thinks he or she can relate to the real world and still be called an archaeologist will get pilloried. The rest of us, I suppose, will just have to call ourselves something else. Or maybe we can just drop the second “a.”

THE KEEPER OF THE NATIONAL REGISTER REDEFINES CULTURE:
A COMMENT ON THE KEEPER’S OPINION
OF THE CAPE COD DUNE SHACKS

Thomas F. King
June 1, 2007

Introduction

On May 24, 2007, Janet Snyder Matthews, the Keeper of the National Register of Historic Places, sent a memorandum to the Acting Regional Director of the National Park Service’s (NPS) Northeast Region. The memo provided Ms. Matthews’ opinion on whether the “Dune Shacks of the Peaked Hill Bar Historic District, Barnstable County, Massachusetts” – a property formally determined eligible for the National Register some 18 years ago – is significant as a “traditional cultural property.” Ms. Matthews’ memorandum makes some peculiar statements that I think merit critical attention.

With Patricia L. Parker of NPS, I invented the term “traditional cultural property[1]” as it is used in historic preservation in the United States – where it is often referred to by its acronym “TCP.” Parker and I coined the term in National Register Bulletin 38, Guidelines for the Identification and Documentation of Traditional Cultural Properties, published by NPS in 1990. I’ve discussed the background of Bulletin 38 – why we wrote it, its intent, our choice of terminology, in several publications[2], and will not reiterate here. Ms. Matthews’ opinion in the dune shacks matter is of concern to me because it evidences a deep misunderstanding of the “TCP” concept, an unKeeperly unfamiliarity with National Register Bulletin 38, and an assumption of governmental omniscience that I find bothersome in an ostensible public servant.

I will not discuss the character of the dune shacks here, other than to note that they comprise a collection of cottages mostly constructed by and used in the past and currently by artists, poets, writers, and other members of the arts community. This community has considerable time depth in the area. The shacks and the people who value them have been discussed in detail by ethnographer Robert Wolfe in a 2005 evaluation[3], and by Wolfe and T.J. Ferguson in a 2006 report[4]. The Peaked Hills Historic District, including the dune shacks, was determined eligible for the National Register in 1989 under National Register Criteria A, B, and C.

The question of the shacks’ traditional cultural significance came up a few years ago as NPS undertook to evict some of the shacks’ residents. Since the residents maintain the shacks, and since the district was determined eligible for the Register at least partly because of its significant association with its residents and their artistic endeavors, questions arose over the propriety of these actions. In undertaking them, as far as I have determined, NPS did not bother to comply with Section 106 of the National Historic Preservation Act. Apparently, however – and I am rather reading between the lines here – NPS then was persuaded that it had Section 106 responsibilities with regard to the shacks, and that if the shacks were eligible as a TCP, the residents would have more power in the Section 106 consultation process than would be the case otherwise. The State Historic Preservation Officer opined that the shacks did in fact comprise a TCP. Unable to bring itself simply to respect the community and its traditional associations, NPS contracted for a study, performed by Dr. Wolfe. Dr. Wolfe concluded that the dune shacks were indeed significant as a TCP. Unwilling to accept this conclusion without vetting, NPS had Dr. T.J. Ferguson examine Dr. Wolfe’s work; the result was the Wolfe-Ferguson report, concluding that the dune shacks were eligible for the National Register as a TCP. The residents and various local governments offered supporting opinions. But NPS was still unsure, so it requested the “determination” of the Keeper – an NPS employee, but we are not to imagine that this might have made any difference. The Keeper, in simple terms, said no.

The Meaning of the Keeper’s Opinion

For a government action that has caused such sturm und drang, the Keeper’s opinion is curiously meaningless. Meaningless, that is, in real world terms; what meaning it may have in the world where the Keeper and her associates live can only be guessed.

Let’s be clear about what the category “TCP” means. TCP is not a National Register criterion, separate and apart from the formal criteria A, B, C, and D[5]. It is really a descriptive term, like “cottage,” or “archaeological site,” or “big gray rock.” When we wrote Bulletin 38, Parker and I needed a term to embrace a range of place-types that were being given short shrift by government despite their significance to real people – Native American spiritual places, traditional neighborhoods, culturally valued landscapes and landforms, and so on. No term was sufficiently embracing, so we invented one – traditional cultural property. It’s simply a semantic box, or envelope, within which various types of place can be kept.

So, who is authorized to decide whether something is or isn’t a TCP? Well, who is authorized to decide whether something is a cottage, or an archaeological site, or a big gray rock? It depends, of course; if you’re a geologist and I’m not, your opinion about the big gray rock is probably better than mine. But archaeologists can argue over what is and isn’t an archaeological site, and one person’s cottage may be another’s palace and another’s hovel. In any event, cottageness, siteness, and rockness are more or less matters of opinion, on which people can honestly reach divergent conclusions, and – here’s the important point – no government agency has the authority to decide the matter.

In just the same way, no government agency has the authority to decide whether something is or is not a TCP. The Keeper has the authority to decide whether a given TCP (or non-TCP) is eligible for the National Register, but she has no more official role in deciding whether something is a TCP than she has in deciding whether something is a rock, a boat, or a fig tree.

Who can determine whether something is a TCP? According to National Register Bulletin 38:

“It is vital to evaluate properties thought to have traditional cultural significance from the standpoint of those who may ascribe such significance to them”[6]

In other words, traditional cultural significance is defined and determined by the people who know and care about a place. The bulletin goes on to acknowledge that a group’s assertions about a place can and should be “subjected to critical analysis,” but the bottom line is the obvious truism that only I can say what’s important to me, and only you can say what’s important to you. Neither of us needs the Keeper to instruct us in the matter.

So the Keeper’s opinion is simply an opinion. It’s also an opinion without practical consequence. The district remains eligible for the National Register, under criteria A, B, and C. The dune shacks contribute to the district; their use by artists and their colleagues is understood to be part of the district’s significance. Any eviction or demolition action by NPS would obviously require review under Section 106[7]. The dune dwellers would be entitled to be consulting parties in any such review, based on their interests in the district[8].

So what did the Keeper’s opinion mean? Only that in the Keeper’s opinion, the shacks are not significant as a TCP. This opinion must have deep meaning to the Keeper, but in real world terms it is simply one ostensible specialist’s conclusion, to be compared and contrasted with those of the residents, Wolfe, Ferguson, the SHPO, and others in future evaluations of the place.

If the Keeper’s opinion has marginal relevance to the dune shacks themselves, it has rather chilling implications for other TCP cases. We may, and should, wonder what will happen when other properties of traditional cultural significance, not already on or determined eligible for the Register, are brought to the Keeper for determinations of eligibility or as nominations. To judge from Ms. Matthews’ memorandum, the prospects for official recognition of such significance are not good. The Keeper appears to be unfamiliar with the National Register’s own guidance on the evaluation of TCPs, and to have some strange notions about what makes such properties significant.

The Keeper’s Understanding of National Register Bulletin 38

Ms. Matthews’ memorandum includes what purports to be a summary of what Bulletin 38 says about TCP evaluation, reproduced below.

Traditional Cultural Properties

National Register Bulletins provide guidance and technical information regarding the evaluation of cultural resources. National Register Bulletin #38 provides flexible guidance regarding the evaluation and documentation of TCPs. In general, as discussed more fully in the Bulletin, a TCP has the following characteristics:

A living, traditional group or community;
The group/community must have existed historically and the same group/community continues to the present;
The group/community must share cultural practices, customs, or beliefs that are rooted in the group/community’s history;
These shared cultural practices, customs, or beliefs must continue to be held or practiced today;
These shared cultural practices, customs, or beliefs must be important in maintaining the continuing cultural identity and values of the group/community;
The group must transmit or pass down these shared cultural practices, customs, or beliefs through the generations, usually orally or through practice; and
These shared cultural practices, customs, or beliefs must be associated with a tangible place, and the place must be directly associated with the identified cultural practices.

Most of the bulleted sentences and sentence fragments are accurate enough glosses on what Bulletin 38 actually says. The second bullet, however – “The group/community must have existed historically and the same group/community continues to the present” – is not found in Bulletin 38 in any form I can discern upon rereading the publication. The Keeper appears simply to have made it up. She goes on, in explaining “why the dune shacks… does (sic) not have significance as a TCP,” to lean entirely on this putatively “most important characteristic of a TCP” as her basis for concluding that the dune shacks don’t comprise one. This suggests to me that Ms. Matthews is unfamiliar with the actual language of the bulletin, and/or that over the years since its publication her staff have begun to read into the bulletin a standard that its authors never intended to include – and moreover, to elevate this standard to “most important” status. This, as we’ll see, is a problem.

The Keeper’s use of the “historical existence/continuation to the present” standard

Why is there a problem with employing the standard that Ms. Matthews and her people have invented? It seems intuitively obvious that a group ascribing “traditional” significance to a place must have existed long enough to have traditions, and must exist today in order to honor them. The problem with this standard, however, is rooted in the question of who defines traditional significance. If, in the bulletin’s words, we are to “evaluate properties thought to have traditional cultural significance from the standpoint of those who may ascribe such significance to them,” is it legitimate for someone standing outside the group – most notably a government official – to evaluate the legitimacy of the group’s perceptions? If – as the bulletin details – it is inappropriate for us to question whether an Indian tribe’s ancestors “really” emerged from a lower world at the beginning of time, is it legitimate for us to deny the beliefs of the Cape Cod dune dwellers about their history, and indeed their very existence as a group?

If the dune dwellers had dragged their shacks into the dunes last year, it might not be problematic to apply the “historical existence/continuation to the present” (HE/CP) standard, though I think the wisdom of doing so would still be questionable. But the dune dwellers did not arrive yesterday; they’ve been around for quite awhile, so the Keeper has to develop a convoluted rationale for denying them legitimacy. The fact that she is willing and able to do this, in the face of massive contrary evidence, bodes ill for future human-based TCP evaluations.

Ms. Matthews’ argument – to the extent I can extract its essence from her prose – goes like this:

The community (she would probably put the word in quotes) of dune dwellers is made up of several groups, including long-term and short-term occupants, visitors, and so on.
These groups are “fluid, evolving, and different from one year to the next.”
Wolfe’s and Ferguson’s reports focused on the long-term occupants.
Many of those offering opinions about the dune shacks emphasized the relevance of groups that do not comprise long-term occupants.
Some comments suggest that the groups using the shacks are so fluid that no “cultural focus” can be discerned[9].
Therefore, “the District should not be identified for its significance as a TCP.”

If the reader’s response to this argument is “huh?” I am not surprised; that’s my response, too. Granting the accuracy of points 1 through 5, it is utterly unclear, at least to me, how Ms. Matthews jumps to point 6 (which actually is the lead-in to her discussion). How does inclusion of multiple subgroups, fluidity, a tendency to evolve, year-to-year differences in composition, the existence of groups other than the long-term occupants, and questions about “cultural focus” (whatever that is) translate into non-TCP status? Presumably it has something to do with the newly-minted HE/CP standard, but even if one accepts that standard, the intellectual leap Ms. Matthews has made is difficult (impossible, for me) to follow. Apparently Ms. Matthews would not deny that the long-term occupants as a group have “historical existence,” and it is pretty evident that this group “continues to the present.” If this is true, then presumably Ms. Matthews would regard the dune shacks as comprising a TCP if there were no one there but the long-term occupants. But by having the temerity to die or move away from time to time and be replaced by others, the long-term dune dwellers have compromised their historical/cultural legitimacy in Ms. Matthews’ eyes.

Apparently to the Keeper, if the community that ascribes significance to a property has been so gauche as to change over time, its claim to “community” status has been lost, and it doesn’t really value the places it thinks it values. But historians, anthropologists, and sociologists have pretty thoroughly documented the fact that all human societies change, evolve; all have more or less fluid boundaries. If there is one immutable principle of human existence, it is mutability. By Ms. Matthews logic, then, no living community can have a TCP. And of course, no dead one can either, since it has not “continued to the present.”

Let’s imagine the HE/CP principle and Ms. Matthews’ logic applied to a more “traditional” sort of TCP than the dune shacks. Suppose an Indian tribe asserts that a hill somewhere in its traditional territory (or elsewhere) is an important spiritual place, and is misled into nominating it to the National Register[10]. In evaluating the nomination, the Register will have to ask whether the tribe’s composition and boundaries have changed and evolved over time. It would be a rare tribe for which the answer to this question would not be “yes.” The Keeper might be satisfied that the tribe “existed historically,” as evidenced by historical accounts, archaeology, perhaps oral history, perhaps treaties, but has it “continued to the present?” Well, the Keeper might say, maybe it has and maybe it hasn’t; it all depends on how fluid the group’s boundaries are. So – assuming the tribe has patience with this kind of effrontery – the tribe submits its tribal rolls for the last century or two. And – what do you know? – they document a considerable fluidity. Not only have tribal members been born and died, but people have come into the group through marriage, perhaps through adoption, while others have left or been thrown out. Some tribal members come and go; a couple live in Switzerland, one member has been elected to the House of Representatives and lives in suburban Virginia. Oh dear, can this really be seen as a community? Guess not, so its place can’t be a TCP.

If this hypothetical seems absurd, I will only say that I don’t think it any more absurd than the Keeper’s opinion about the dune shacks. Since the Keeper’s decision in this matter was pretty obviously a politically motivated one, we can hope that it will not be replicated in cases where the National Park Service is not the agency questioning a place’s traditional cultural significance, but I have my doubts. The Keeper certainly engaged in convoluted, unsubstantiated logic (broadly defined) to reach the conclusion desired by her agency, but the fact that such logic apparently makes sense to her and her colleagues – that they can put it out in public with straight faces – cannot make one very hopeful about the quality of likely future decisions.




[1] Also taken to mean “traditional cultural place,” which amounts to the same thing; we used “property” in order to parallel “historic property,” a term used in the National Historic Preservation Act.
[2] See, for instance, Chapter 15, “Stupid TCP Tricks,” in Thinking About Cultural Resource Management: Essays from the Edge; AltaMira Press 2002; Chapters 1 and 2 in Places That Count: Traditional Cultural Properties in Cultural Resource Management, AltaMira Press 2003; and “How Micronesia Changed the U.S. Historic Preservation Program and the Importance of Keeping it from Changing Back,” Micronesian Journal of the Humanities and Social Sciences 5:1/2:505-516, http://marshall.csu.edu.au/MJHSS/
[3] Dwelling in the Dunes: Traditional Use of the Peaked Hills Bar Historic District, submitted to the National Park Service 2005.
[4] Traditional Cultural Property Assessment, Dune Shacks of the Peaked Hills Bar Historic District, Cape Cod National Seashore, submitted to the National Park Service 2006.
[5] As set forth in regulation at 36 CFR 60.4
[6] National Register Bulletin 38:4, emphasis added.
[7] This is not, however, to say that NPS will subject its decisions in such matters to such review; it is required to, after all, only by federal law.
[8] 36 CFR 800.2(c)(5)
[9] The Keeper does not define this somewhat ambiguous term.
[10] For the record, I recommend NEVER nominating TCPs, or anything else, to the National Register unless there is a very good practical reason for doing so.

Tom King's CRM Plus

Tom King's CRM Plus

Some Thoughts About Programmatic Agreements
February 4, 2005

I’ve been asked to review a few draft Programmatic Agreements (PAs) lately, proposed for execution under Section 106 and 36 CFR 800.14. They’ve uniformly been pretty dreadful. In case anyone’s interested, I thought I’d share a few observations on one typical example, whose identity I’ve disguised to protect the innocent.

This particular PA was drafted by a State department of transportation (DOT), for signature by itself, FHWA, the SHPO, and an Indian tribe. Once I’d gone through it with a reasonably fine-toothed comb, I could see that it had two modest goals:

1. categorically exclude certain classes of action from standard Section 106 review; and
2. allow the State DOT to represent FHWA in Section 106 consultations with the tribe.

The first thing I want to say is that a PA wasn’t really necessary to achieve either of these goals. With respect to the first, the agency was really saying that it simply didn’t want to communicate in the usual way with the SHPO and tribe about a particular range of action types. This could have been done with some fairly simple exchanges of letters, or a very simple agreement, about how FHWA and the State DOT would initiate consultation under 36 CFR 800.3. By elevating the matter to the level of a PA, they got all balled up, and ironically ended up (as we’ll see) proposing to exclude from review a number of project types that had considerable potential for adverse effect – just not on resource types that the State DOT figured would be important to the tribe. As for the second goal, it could easily have been achieved (assuming the tribal government found it achievable) through an exchange of letters between FHWA and the tribal government.

But there seems to be a perception abroad in the land that the PA is the only way to structure and adjust relationships among parties in the 106 process, or to clarify how, in the eyes of those parties, the process can be made to work in particular contexts. So in this case as in others, the parties embarked on the PA road, and put their feet in a lot of nasty potholes and piles of poop.

For one thing, they started out by indicating that the agreement was about a lot more than just providing for some exclusions and delegating some responsibilities. It’s title announces that it’s about “IMPLEMENTATION OF THE FEDERAL-AID TRANSPORTATION PROGRAM IN (THE STATE).” The actual limited purposes of the document are never made clear, except by implication and the absence of stipulations dealing with anything else.

Perhaps in lieu of such stipulations, they stuffed the agreement full of gratuitous promises to obey the law. For example, in the “Whereas” clauses:

• “FHWA agrees to coordinate under a government-to-government relationship with federally recognized tribal governments.”

• “FHWA… wishes to conduct its programs in a manner consistent with 36 CFR 800” (particularly odd since the core purpose of any PA is to allow an agency to conduct a program in a manner inconsistent with the standard process set forth in 36 CFR 800).

And in stipulations:

• “If the discovery (of Native American cultural items) is located on federal or tribal land, the (State DOT) will submit to the tribe a signed, written Plan of Action in compliance with Sections 10.3 and 10.5(c) of NAGPRA’s regulations.”

Speaking of being gratuitous, they also burdened the document with a number of Statements of Noble Intent (SNI) – institutional chest-thumps – such as…

• “FHWA is committed to the design and construction of transportation systems that achieve a safe and efficient function….”

Quickly becoming, in the words of Benjamin Disraeli, “inebriated with the exuberance of (their) own verbosity,” the drafters blew the intent of their PA up to proportions far beyond its actual content:

• “Now, therefore, (the parties to the PA) aspire to engage in meaningful long term planning for the protection of historic and archaeological properties and, toward that end, desire to (1) develop a comprehensive and efficient process for all Section 106 undertakings; (2) simplify procedural requirements to the maximum extent possible; (3) eliminate unnecessary paperwork; (4) reduce the role of (the tribe’s THPO) to the minimum extent required; (5) devote a larger percentage of time and energies identifying relevant problems threatening historic and archaeological properties; and (6) create innovative programs to address those problems.”

In the face of all this verbiage, the actual two purposes of the agreement – to exclude certain types of action from what the parties understood to be normal 106 review and to delegate tribal consultation functions – were virtually buried, and could be ferreted out only with difficulty. At the same time, the high-flying language conveyed the impression that the PA set up a whole new approach to Section 106 review in the state, though it manifestly did not. This is dangerous, because it can mislead people into thinking that given the PA, they need not attend to the regulations, when in fact the regulatory process is hardly affected at all by the PA’s terms.

After two single-spaced pages of generally meaningless circumlocution and SNIs, the PA finally got to one of its major purposes. Oddly, the authors chose a “Whereas” clause to stipulate that:

• “(The parties) hereby agree that the transportation undertakings defined in Appendix A have been determined by all parties to have NO EFFECT on cultural resources/traditional cultural properties in (the State) pursuant to 36 CFR 800.”

Never mind what they meant by “cultural resources/traditional cultural properties,” or how these related to the historic properties whose consideration is the actual subject of 36 CFR 800. The main problem here is that the authors were trying to establish a material fact by executive fiat. It’s kind of like the United States formally declaring in Congress assembled that there are weapons of mass destruction in Iraq. Whether there were WMD in Iraq was a factual question, which could be answered only by on-the-ground study. Similarly, whether something will or will not have an effect on historic properties is a factual matter; one can’t make it one way or another by declaring it so. Under the regulations, determinations of “no historic properties affected” (which probably is what the drafters meant by “no effect”) are made based on an agency’s identification work, but in this PA they’re based on nothing at all.

Most of the activities listed in Appendix A do look pretty benign, but one certainly can’t guarantee that they will never have any effect on historic properties. One example is “rest areas repair and maintenance.” Are there no rest areas in the state with, say, archaeological sites buried under their landscaping, that might be affected by landscape maintenance? Or how about “replacement of bridges on existing alignment, when the bridge to be replaced is less than 50 years old and is not exceptionally significant?” Does one never excavate to effect such replacement? And who decides about “exceptional significance?”

And once again, the authors couldn’t restrain themselves, and seem to have forgotten what they were doing. They proposed to exclude:

• “Streetscape improvements including benches, decorative lighting, textured crosswalks, transit shelters, and containerized plantings where the contract does not disturb existing subbase in original ground where soil horizons have been removed;”

• “Transit improvements, bus bays, bus pullouts, and Park and Ride facilities located in urban settings or previously developed areas.”

• “Rehabilitation of historic structures in accordance with the Secretary of the Interior’s STANDARDS FOR REHABILITATION and approved by the SHPO.”

These activities are supposed to have “no effect” on historic properties? Maybe they aren’t likely to affect places important to the tribe, but can a PA whose title indicates statewide and program-wide scope not apply to the whole state, and the whole Federal-aid transportation system in the state? Are the SHPO and tribe not being asked to agree to the wholesale exclusion from review of actions that may have profound effects on buildings, structures, and districts in urban areas? Are they not being asked to do this on behalf of the people in such areas, who value such properties? Without a shred of participation by such parties in the PA consultation? That’s certainly what the PA’s title, and the absence of statements of limitation, suggest. I wonder how any of the State’s cities would react if they found out.

The other apparent purpose of the PA – delegation of FHWA’s tribal consultation responsibility – is also buried in a “Whereas” clause. In fact, it’s a clause within a clause:

• “Whereas…. when a proposed project includes FHWA funding, the (State DOT) will initiate Section 106 Native American consultation as FHWA’s agent.”

That’s as explicit as it gets. Thereafter, there are simply references to the State DOT sending things to the THPO and the THPO responding. Then at the end, it’s the THPO who’s got a signature line – not the Chairman, President, or other representative of the tribal government. Can the THPO agree on behalf of a tribe that a Federal agency can delegate government-to-government consultation responsibilities to a state agency? Not in any tribe I’ve ever encountered. No wonder the tribe hasn’t signed off on this PA – particularly since, I was told, it had simply been sent to the THPO for signature, with no actual consultation at all.

It’s easy to make fun of this PA, but I’m afraid it represents something of a trend. With the Advisory Council’s effective withdrawal from participation in 106 review, and even more from intellectual engagement in the operation of the process, there’s no one to maintain quality control, and I’m seeing some truly amazing agreements being produced and solemnly executed by agencies, SHPOs, and THPOs. The result is likely to be vast confusion at best, severe erosion of the integrity of Section 106 review and real losses of historic properties at worst.

Another result – not prospective but actual, here and now – is a lot of time wasted negotiating agreements that amount to much ado about very, very little. The PA I reviewed, like lots of others I’ve seen, is mostly verbiage and puffery, camouflaging a few substantive if confusing and misleading stipulations. And I’ve seen people spend a lot of time arguing about verbiage and puffery.

Finally, as noted at the outset of this paper, there’s no real reason for FHWA or the State DOT to even develop such a PA. An agreement to allow FHWA to delegate its tribal consultation responsibilities to the State could be effected – if it can be effected at all – through an exchange of correspondence between FHWA and the tribal government (but probably not the THPO). If the tribe isn’t willing to respond positively to FHWA’s initiative when cast in the form of a letter, a phone call, a meeting, or some combination of the three, it’s not going to be willing to sign a PA. Though perhaps FHWA could con the THPO into signing it without realizing that he was exceeding his authority – a bit of chicanery that would be a credit to Andrew Jackson.

As for excluding some project types from review, some of the types listed in the exceptions appendix could arguably be excluded unilaterally by FHWA on the grounds that they have no realistic potential for effect on historic properties. Pavement repairs are an example, and re-striping lines. But it’s apparent that what FHWA was concerned about in this case was not Section 106 review in general, but the specific bureaucratic business of consultation with the SHPO and THPO. You don’t need a PA to exclude things from such consultation. Again, I think all it would take is an exchange of letters, or a simple bilateral agreement, about what FHWA and the State DOT would and would not do in initiating Section 106 review under 36 CFR 800.3.

In the hopes of forestalling some future nonsense PAs, I’ve attached, below, suggested drafts of three model letters designed to accomplish the two purposes of the PA reviewed above.

Tom King
Silver Spring, Maryland
February 5, 2005
Attachment 1: Letter: FHWA to head of tribal government

Dear (Chairman/President) ______________

The Federal Highway Administration (FHWA) is seeking ways to simplify its government-to-government consultation with Indian tribes regarding transportation projects in (State), specifically with respect to potential impacts on historic properties under Section 106 of the National Historic Preservation Act.

Such projects are invariably planned and carried out by the (State) Transportation Department (STD). Since you have established your (Name of Office or Department performing THPO function) as your Tribal Historic Preservation Officer (THPO), we believe it would be most efficient for us to authorize the STD to consult directly with your THPO on our behalf regarding all such projects that do not actually affect the fee or trust lands of your tribe. Of course, FHWA will always be available to consult with you on a government-to-government basis upon your request, and will continue to so consult in this manner with respect to projects affecting the fee or trust land of your tribe.

If this arrangement is acceptable to you and your tribal government, I hope you will so advise me by letter. If you would like to meet about this matter, or discuss it on the telephone, I would be happy to do so at your convenience. Please contact me at (phone number) to discuss it or arrange a meeting.

Sincerely


cc: THPO (Note: THPO should already have been consulted about this so it’s not a surprise)

Attachment 2: Letter State Transportation Department to THPO

Dear (THPO)

This is to confirm the outcome of our meeting of (date), at which we identified certain types of transportation project in (State) that are so unlikely to affect historic properties of interest to your tribe that there is no need for us to consult with you under Section 106 of the National Historic Preservation Act. The project types we identified are listed in the attachment to this letter (Attachment A: “Project Types on Which Section 106 Consultation With the ______ Tribe Will Not Be Routinely Undertaken”).

If you agree, when we consider initiating the Section 106 review process on a project falling into one of the identified categories under 36 CFR 800.3(e) and (f), we will not routinely contact you and request your participation. We will, however, notify you of any such project that will affect the fee or trust lands of your tribe, and of any project that our internal review suggests may be of interest to you. As you requested in our meeting, we will also advise you of any project that is planned to be conducted in the month of _______ within any of the areas identified on the attached map (Attachment B: “Areas of Special Cultural Importance to the _________ Tribe”), and seek your assistance in ensuring that such projects do not adversely affect your tribe’s cultural interests. We will also consult with you about any project at your request.

We propose to review the effectiveness of this arrangement with you on an annual basis, and make adjustments to the arrangement as needed.

If you agree with this approach, please sign the concurrence line below and return a copy of this letter to you for our files. If you would like to discuss this matter further, please contact me at (phone number).

Sincerely





.

Attachment 3: Letter FHWA to SHPO

Dear (THPO)

This is to confirm the outcome of our meeting of (date). As you will recall, that meeting was aimed at clarifying what the (State) Department of Transportation (DOT) will do when it initiates review of certain routine project types on our behalf under 36 CFR 800.3, and on what your office, the DOT, and we agree constitutes a “reasonable and good faith effort” to identify historic properties with respect to such project types under 36 CFR 800.4. The authority for this agreement is found at 36 CFR 800.3(g).

The project types we collectively identified are listed in the attachment to this letter (Attachment A: “Project Types on Which Section 106 Consultation With the ______ State Historic Preservation Officer Will Not Be Routinely Undertaken”). They are all types of project that have very limited potential for adverse effect on historic properties, and whose mild potential for such effects can, we agreed, be handled by the (State) DOT without your advice and assistance.

We agreed that with respect to the property types listed in Attachment A, we will regard our responsibility to consult with you under 36 CFR 800.3(c) to be fulfilled by the programmatic consultation whose results are documented in this letter, and by the annual consultation proposed below, except in circumstances where the (State) DOT’s internal review and our compliance with the National Environmental Policy Act (NEPA) suggest to us or the (State) DOT that further consultation with your office is appropriate, whereupon the (State) DOT will undertake such consultation in accordance with 36 CFR 800.3(c).

We also agreed under 36 CFR 800.3(e) that with respect to the project types listed in Attachment A, there is no need for public involvement in individual project review beyond that routinely carried out by the (State) DOT as part of its planning and NEPA compliance processes, except that in interacting with the public and with local governments about such projects, the (State) DOT will routinely distribute the handout attached (Attachment B: “If You Have Concerns About Impacts on Historic Places”), which advises the public about how to make any historic preservation concerns known to the (State) DOT, FHWA, and your office. Should any such concerns be raised, or should the (State) DOT otherwise think it necessary, the (State) DOT will provide for further public involvement, in consultation with your office.

We also addressed the requirement of 36 CFR 800.4(b)(1) that a “reasonable and good faith effort” be made to identify historic properties subject to effect by a project. We agreed that with respect to the project types listed in Attachment A, the (State) DOT’s routine planning and NEPA compliance processes comprise such a reasonable and good faith effort in the vast preponderance of cases, and that no field survey to identify archaeological sites or other historic properties will ordinarily be carried out. We also agreed, however, that the (State) DOT will consult with your office in any case in which they are uncertain about the need for such a survey, and in any case in which a local government, an Indian tribe, or some other interested party requests such a survey. The (State) DOT pledged that such a survey will be carried out if your office advises that it is needed.

Finally, we agreed to review the effectiveness of this arrangement on an annual basis, and make adjustments as needed.

As we discussed, we are contacting all Tribal Historic Preservation Officers (THPOs) and Indian Tribes with interests in your State to seek similar arrangements. Nothing in this letter affects our obligations with respect to such tribes and THPOs.

If you agree with this approach, please sign the concurrence line below and return a copy of this letter to you for our files. If you would like to discuss this matter further, please contact me at (phone number).

Sincerely