National Trust Says "Let's Take Section 106 Back to Basics"

Comments on Section 106 of the National Historic Preservation Act: Back to Basics, a report in two volumes issued in late September, 2010 by the National Trust for Historic Preservation in the United States.

People have been asking me if I was going to review the National Trust for Historic Preservation’s new report on the National Historic Preservation Act (NHPA) Section 106 process. OK, I will.

But the report, by preservation attorney Leslie Barras and entitled Back to Basics, is long and rather cumbersome, divided into two volumes – the second a technical elaboration and mustering of supporting data for the first. And it’s loaded with material with which it’s possible to quibble, and I know my quibbles would only put everyone (including me) to sleep. So what I’m going to do – for now, at least, until and unless some of the report’s recommendations begin to look like they might be implemented somehow – is comment just on the first volume, the “Summary Report.” Which is conveniently organized with reference to seven key recommendations, all but one complete with sub-recommendations. Let’s look at them one by one.

Recommendation 1. Federal agencies must endorse and compel compliance with Section 106.

The report begins its elaboration on this recommendation by urging the president to issue a “memorandum reinforcing agency responsibilities…and requiring reporting on current compliance.

Comment: Well, OK, but we’ve kind of been there and done that during the Bush administration, with little evident productive result. My personal belief is that this kind of initiative makes no sense except as part of a larger directive to agencies to clean up their environmental impact assessment (EIA) and public engagement systems generally (See my recommendation for presidential direction on pages 161-4 of Our Unprotected Heritage (Left Coast Press 2009). Section 106 by itself is too small-potatoes to be the subject of such direction, and directing better compliance with 106 without doing the same for the National Environmental Policy Act (NEPA) would not, I think, have very useful results.

The next subrecommendation is that “the Secretary of the Interior and Advisory Council Chair should consult with federal agencies on the adequacy of historic preservation staff capacity.” That’s probably a good idea, but they first ought to agree – with serious attention to outside advice – on what such capacity should look like. Just hiring lots more architectural historians and archaeologists is not necessarily a good idea, even if it were likely to happen.

Next, the report suggests that “federal agencies that oversee or delegate Section 106 compliance to nonfederal applicants for project funding or approvals should implement robust management systems to ensure procedural compliance with the law.” Yes indeed, and again it would be worth looking first at just what “compliance with the law” ought to entail. Agencies like the Environmental Protection Agency (EPA) in its delegation of Clean Water Act responsibilities and the Office of Surface Mining in its laughable (if it weren’t so sad) oversight of coal mining in Appalachia are letting their non-federal “partners” get away with murder, and it ought to stop. But again, just focusing on 106 won’t work; reform has to address the full range of environmental laws, notably NEPA.

Next, it’s suggested that “Special responsive strategies should be developed to address the challenges of Section 106 compliance when nonfederal parties receive project funding or approvals as a result of massive economic or disaster recovery initiatives.” There are two rather separate issues here. One circulates around the American Revitalization and Reinvestment Act of 2009 (ARRA), which pumped vast amounts of money into supposedly “shovel-ready” projects that weren’t, and is as a result distorting and short-circuiting the processes of environmental impact assessment, including but far from limited to Section 106. That’s pretty much a done deal, but yes, some sort of sensible strategy should be developed for such things when they happen in the future – other than just assuming that if an agency thinks its project is ready to go, it is. What that strategy (or suite of strategies) might be is anyone’s guess, and Back to Basics doesn’t essay to advance specifics. The other issue has to do with natural disasters like Hurricane Katrina, and here the report seems to reflect the Trust’s unhappiness with the Federal Emergency Management Administration for permitting large scale demolitions in New Orleans. As one who believes that New Orleans generally is doomed, and that the sooner we get used to the idea and let it go the better off we’ll be, I don’t think I have anything to say about this argument.

Next, Back to Basics says that “government performance and accountability reports should more specifically and prominently identify progress made and improvements needed in federal preservation programs.” This makes sense superficially, but the government performance and accountability report (PAR) standards and guidelines I’ve seen are idiotic, and only cause federal employees to while away their hours making up numbers. Calling on an agency like the Bureau of Land Management (BLM) to estimate how many historic properties it has taken nice care of this year is an utter waste of time, and calling on them to report things like nominations to the National Register is utterly counterproductive. If there’s ever a PAR system that makes sense, though, no doubt stuff like historic preservation should be represented in it.

Recommendation 2. Federal agencies need to ensure earlier and broader integration of preservation values in their planning processes

The first subrecommendation here is that “in many cases, consideration of historic properties could be improved through better coordination or integration with National Environmental Policy Act compliance.” Yes indeed, but the fact that the Section 106 and NEPA regulations aren’t themselves coordinated in any meaningful way throws something of a roadblock in the way of implementing this suggestion. The Advisory Council could do something about this, and so could the Council on Environmental Quality, but neither, I think, has the wit to do so.

It’s next suggested that “the Advisory Council should be more active in fulfilling its commenting responsibilities under the National Environmental Policy Act.” That, I think, is true, but the Council would need to think through how its comments on an Environmental Assessment (EA) or Environmental Impact Statement (EIS) would relate to whatever it does (if it does anything) under 106, and that effort would probably provoke institutional brain freeze.

Next, Back to Basics proposes that “environmental management systems should be expanded to encompass cultural resources, including Section 106 implementation.” This was something some of us explored for the Department of Defense’s Legacy program back in the 1990s. It seemed like a good idea then, and it probably still is. It’s a shame if, as Ms. Barras reports, it hasn’t been developed; I’d thought that DOD was actually making advances in this area.

Back to Basics goes on to recommend that “sanctions should be imposed on federal agencies that misuse environmental reviews and prevent meaningful Section 106 compliance,” but the sanctions it discusses (e.g. scolding comments by the Council) are pretty wimpy. More draconian sanctions might be worth considering, but only if “meaningful Section 106 compliance” is clearly and understandably defined. Agency officials shouldn’t get slapped with fines or prison sentences for piddly sorts of noncompliance, but they should get hit for really circumventing full public review of impacts.

The report then veers off in an odd direction, commenting that “interstate projects provide an opportunity to plan for strategic and consistent ways to identify and evaluate archaeological sites.” Well, yes, and some of us have promoted taking advantage of such opportunities for decades, but if anything the tendency lately has been toward fragmenting such projects, and nobody seems to mind. It's probably something worth trying to fix, but it's a pretty small something.

It’s next suggested that “earlier consideration of preservation values should be promoted through increasing preservation advocates’ participation in agency advisory committees.” That’s probably true. Certainly some of the major advances in Corps of Engineers attention to historic preservation happened when there was vigorous archaeological participation in its environmental advisory committee. Of course, this disciplinary bias tended to skew the Corps’ compliance regime in the direction of archaeology at the expense of other aspects of culture; “advocate” representation needs to be carefully thought through.

Back to Basics suggests that “outreach to groups not traditionally familiar with Section 106 should be further expanded, including development interests and the media.” This is doubtless true, but I don’t think it will work unless and until the Section 106 process is simplified and rationalized. Trying to explain the process in all its ramifications to someone “not traditionally familiar with it” – especially those with other things to do, like developers and reporters – can be an exercise in futility.

Recommendation 3. The Advisory Council should vigorously assert Section 106 as its core mission.

What can I say to this in general but YES INDEED. Section 106 IS the Council’s core mission, however much its ostensible leadership would rather attend events in the White House Rose Garden and pontificate at international gatherings. The Council ought to get some leadership that will lead, in doing what the Council was designed by Congress to do, and that’s Section 106.

In terms of specific subrecommendations, the report suggests that “Advisory Council members should increase their direct involvement in strategic Section 106 cases.” I think Ms. Barras really means Council staff here – in other words, the Council should re-think it’s decision of the late 1990s to withdraw from case-by-case Section 106 review. Indeed it should, though over the last fifteen years or so the Council has made itself so irrelevant to the actual process of 106 review on the ground, and provided so little useful direction to its staff, that it will take a major, carefully designed effort to re-engage.

The report very usefully recommends that “the agency’s role in Preserve America should be redefined.” Without of course criticizing Preserve America, because how could the National Trust ever be critical of a White House preservation initiative, Back to Basics delicately suggests that the Council’s emphasis on this feel-good program has distracted it from its core mission. Amusingly, it’s reported that:

“(t)he Council’s staff leadership has emphatically stated that staffing and support for Section 106 compliance has not been adversely affected by the Council’s in¬volvement in Preserve America, and that any shift in resources over the past several years primarily reflects a more limited role assigned to Council staff due to changes in the Section 106 regulations.”

I’ll bet the leadership is emphatic; they do love hobnobbing with the upper crust, and you get to do that by taking part in goody two-shoes activities like Preserve America, not in doing the grubby work of 106. But in saying that its infatuation with Preserve America has not distracted the Council from its core mission, the leadership, to put it delicately, prevaricates.

Back to Basics wisely suggests that “the Advisory Council should consider reopening a western office.” As an alternative, I can’t resist offering the suggestion long ago proposed by the then-Western Office’s chief, Lou Wall: the Council should close its eastern office. Having the western office was important not only because it put Council staff within striking distance of western cases – a value that was diluted by facilitated air travel and the Council’s withdrawal from much casework – but because it introduced a certain amount of realism into the Council’s world-view. It’s not a sure bet that a western office alone would be enough to counterbalance the inside-the-beltway biases of the Council’s senior staff, but it would be a good start.

Usefully, the report comments that “checks and balances are needed to reduce conflict-of-interest concerns when the Advisory Council’s “liaison” staff participate in Section 106 reviews for their funding agencies’ projects.” To say the least. See my recent blog post on the related subject of paying SHPOs; it’s absurd to think that getting staff and money from the agencies whose actions they review does not distort and corrupt the Council’s and SHPOs' objectivity.

Next we are told that “there is a compelling need for timely and concrete Section 106advice from the Advisory Council; opinion letters are one possible solution.” Maybe so, but the Section 106 advice we have seen from the Council lately has been a mixed bag at best. I’d like to see a system developed for formulating such advice that at least gave it a fighting chance to be relevant and useful.

It’s suggested that “facilitated negotiations should be conducted more often in controversial Section 106 cases, and training in conflict resolution skills should be provided to the Advisory Council’s staff.” Very, very true. I’ve commented elsewhere (as I did to Ms. Barras) that I learned more about dispute resolution in a 40-hour class at Bowie State University than I did in ten years at the Council. I’ve run into one Council staff member recently who said she was planning to get such training. Good for her, but this should be something the Council does routinely.

Back to Basics calls for “expansion of basic and advanced Section 106 training,” “facilitated by the Advisory Council.” “Facilitated” is a felicitous term. As one who has taught for the Council and for others, I think that others do a better job. Others are not bound to support Council policy; they – we – can tell it like it is. But help and advice from the Council would be welcome. And the report wisely notes that there are lots of ways to provide training these days besides just flying around and giving face-to-face classes.

Recommendation 4. Improvements are needed to increase consulting party access and public involvement in the Section 106 process

The first subrecommendation here is that “federal agencies should honor the requirement to directly invite consulting parties to participate.” This is a tremendously important recommendation; too many agencies continue to think that the only folks they need to consult with are the SHPOs. Of course, there are SHPOs who encourage them in this belief, and the fault for this lies in part with the National Park Service (NPS) – I’ll have more to say about that below. And the Council itself is not always very vigorous in its insistence that agencies bring others into the process – despite the clear priority given to doing so in the regulations as revised in 2000. This is an issue on which some vigorous guidance from the Council would be in order – to the federal establishment, to the SHPOs, and to its own people.

The report goes on to recommend that “consulting parties should be provided a tentative plan of action or roadmap for consultation.” I’m dubious about this. Each consultation is so individualized that it’s hard to imagine a “plan of action” or “roadmap” being anything but stultifying. To me it smacks a little overmuch of the common and repulsive agency practice of smacking down a draft memorandum of agreement at the beginning of a consultation and expecting everybody to sign on. But some notion of how someone (who?) expects a consultation to unfold would doubtless be worth having; it’s an idea worth exploring.

Back to Basics notes that “the Section 106 advocacy capacity of the National Trust’s statewide and local preservation partners requires strengthening.” This of course is an initiative that the Trust itself needs to pursue, and it would be helpful. Too often, statewide and local preservation groups have strange and exotic notions of what Section 106 is about, and bring little to the consultation table other than confusion – if they come to the table at all. An effort – by the Trust perhaps – to motivate and educate such groups would be very welcome.

The report bluntly notes that “the use of public participation models of inclusiveness has languished and needs to be resurrected.” Indeed. Not only should the Council and SHPOs (among others) talk the talk of fully involving the interested public, they should learn how to walk the walk. There is a vast literature out there in the world on how to open up public decisionmaking to public involvement, and people in historic preservation ought to get familiar with and use it. “Transparency” isn’t enough; if I’m watching a consultation through a perfectly transparent but soundproof window, I can’t have much influence. People want influence, but federal decision makers during the Bush years pretty systematically set up roadblocks to its exercise. Regrettably, the Obama administration has not yet demolished them.

Ms. Barras also recommends that “federal agencies and applicants for federal funding or permits should be more responsible to the public for project changes and commitments made in Section 106 reviews.” In other words, eschew what one of my tribal colleagues has referred to as the “Three-I” model of consultation: Inform, get Input, and Ignore. Listen to what people say and respond to it, give it credence, look for ways to address people’s concerns.

The report next advances the interesting idea that “consulting party and public feedback on their experience in Section 106 reviews needs to be actively solicited.” Presumably this is something the Council and/or the SHPOs could do, and it’s a good idea. Notably, such feedback should be sought not just from the usual “preservation partners,” but from all participants in review, whatever their interests.

Recommendation 5. State and tribal Section 106 programs should be supported by fees and full appropriation of proceeds in the national Historic Preservation Fund account

The report first recommends “serious exploration” of “the authority of states and tribes to assess fees to support their Section 106 review.” As discussed in a previous posting on this blog, I’m dubious of this proposition.

Next, Back to Basics proposes that “Congress should fully appropriate the proceeds in the national Historic Preservation Fund account.” This is a perennial plaint by the National Trust and other preservation advocates. If the proceeds were used to support real-world activities like Section 106 review, this recommendation would be worth real attention by Congress. Unfortunately, an awful lot of HPF-funded work – thanks to NPS – is plain silly, and would cause any thoughtful examiner to question the utility of supporting it with taxpayers’ dollars. If I were advising Congress, I’d say hold the HPF hostage to some serious reform on the part of NPS and its pet national organization, the National Conference of SHPOs.

Recommendation 6: Prior to further federal agency use of alternative approaches to comply with Section 106, the Advisory Council should establish standards to promote accountability in implementing these ‘program alternatives.’

In this very welcome part of the report, Back to Basics takes aim particularly at programmatic agreements (PAs). I’ve spent enough screen space in this blog on criticizing the passion for PAs, and don’t need to spend any more; I simply welcome the Trust’s support for the idea of rethinking how they’re used. It’s revealing that according to the report (and I know it’s true), the Council can’t even tell us how many PAs are currently in effect across the land. I do question whether the Council staff is up to establishing standards; they’ve been as willing as anybody else to accept and promote utter trash in the guise of “program alternatives.” But if done with a lot of – dare I suggest it? – real consultation, preparation of such standards would be a good idea. And holding off on more such enterprises pending a serious review is a very good idea.

Recommendation 6: Section 106 stakeholders should pursue new ways of using technology, while improving and expanding existing uses.

Back to Basics offers four subrecommendations here. First is that “’Web 2.0’ technology should be harnessed to enhance implementation of the National Historic Preservation Act.” Of course, I read that we’re about to see the development of “Web 3.0,” but that aside, I’m sure Ms. Barras is right, and I’m vaguely aware of a number of agency, SHPO, tribal, and other initiatives to do what she recommends. Nothing general and nationwide, though, except for NPS’s well-intentioned if not yet very effective historic preservation portal. The problems, of course, involve costs and the speed with which technology is changing – and the potential for wasting money on whiz-bang gadgets that don’t really accomplish much. Incidentally, I’ve been corresponding recently with a software developer about building a 106/CRM video game to take the place of a lot of face-to-face training. It would be (I think) a real money-saver in the long run, but it would cost about a million bucks. Anybody interested?

The report next recommends that “project management software needs to include Section 106 compliance milestones to help early and coordinated consideration of historic properties in construction projects.” Yes indeed, and this is an initiative that the Council could, I think, very usefully take on. I know that some state departments of transportation (but by no means all) have good systems that might be used as models, but most agencies just don’t factor 106 into project management at all; few do much with NEPA, either.

Back to Basics says that “the Advisory Council should establish deeper content on its website for Section 106 practitioners, consider establishing a compliance-oriented website name for inexperienced Section 106 stakeholders, and offer a targeted Section 106 link for the public on its homepage.” I kind of like the Council’s website, but it doubtless could use updating and “deepening,” and the idea of a pages especially for newbies and the public is a good one. Maybe the Council would like to fund my video game.

The last, rather lame subrecommendation offered by Back to Basics is that “metropolitan and regional transportation planning organizations need access to digitized cultural resource information.” To the extent I understand what Ms. Barras is getting at here – and the detailed background report doesn’t help much – I’m a bit frightened by this recommendation. It promotes linking planning and land use geographic information systems (GIS) with “cultural resource GIS,” but to the best of my knowledge there’s no such thing as a GIS that really represents cultural resource data in a reliable and comprehensive way. There are archaeological site GISs and historic building GISs and a few predictive model-generating GISs focused on particular kinds of resources, but there’s nothing that’s going to tell a planning organization where all the resources are, and that’s the simple-minded plea (or worse, expectation) that we keep hearing from such organizations and (unfortunately) even such august bodies as NPS and the Council. The idea of a comprehensive list of all the “cultural resources” makes even less sense than a comprehensive list of all historic properties – a notion that led to creation of the National Register and its ilk around the world, and has systematically misled planners ever since it bubbled into the fevered brains of the French revolutionaries back in the early 19th century. I really think we ought to give it up, or at least very seriously re-think it.

What Back to Basics Misses

I’m very glad to see Back to Basics, and hope that its recommendations are attended to by the Advisory Council and others. There are four things that I’d have liked to see the report touch on that it doesn’t address, but none of them, I’m sure, would have been politically feasible even if Ms. Barras had been inclined to pursue them.

One is the obnoxious role of NPS in distorting the 106 process. As I’ve discussed elsewhere in this blog (among other places), by structuring its periodic reviews of SHPO programs as it has, NPS has turned the SHPOs pretty generally into nit-picky counters of standard transactions, carefully keeping track of how many determinations of eligibility and effect they’ve concurred in, how many agreements they’ve executed, and the like, and systematically discouraging consideration of any more creative approaches to 106 review. It’s also predictably stressed the part of the process that it controls and loves – determinations of eligibility – allowing them to become chokepoints. All this has encouraged agencies to seek ways to “streamline” the process, usually through nonsense PAs.

Then there’s the problem of for-profit consultants (like me) performing Section 106 work for project proponents – an absolutely obvious formula for rotten, self-serving, biased findings and determinations. I’ve discussed this problem in my 2009 book, Our Unprotected Heritage, so won’t belabor it here.

Another issue that Back to Basics pretty much dances around is the need for the ACHP to revise its regulations. A lot of the changes the report recommends would be facilitated by regulatory adjustments, but the report doesn’t come right out and say so – or at least I haven’t found where it does. The Council would understandably resist such a recommendation – the last round of regulation changes was a painful experience – but it’s still something that should be considered. The last time round, some useful changes were made – notably the insertion of provisions for early identification of consulting parties, scoping, and the like, which are precisely the aspects of the process that have been ignored by most agencies and SHPOs (the latter largely because of NPS direction). But the 2000 regulations also introduced or retained a lot of little nitpicky steps, or perceived steps, in the process, and it may not be possible to reform the process without fixing the regs.

Finally, as I’ve also argued in Our Unprotected Heritage and hence won’t expound on here, I don’t think it’s possible to really fix 106 without reforming NEPA practice as well. Of course, it was not in Ms. Barras’ brief to go after the Council on Environmental Quality (CEQ) as well as the Advisory Council, but seriously, I think we’ll spin our wheels trying to reform 106 on its own, and 106 by itself is such small potatoes that nobody in Congress is likely to promote such reform either – or if they do, it will probably be nonsense reform. But then, it’s naïve to expect much more of Congress these days anyhow.

All in all, I’m glad to see Back to Basics out on the street, and I hope somebody in authority pays close attention to it.

The Advisory Council on Historic Passivity

The Advisory Council on Historic Preservation (ACHP) has come out with another opinion that ducks engagement in controversy and in so doing undercuts the interests of historic preservation.

The case in point is the planned demolition of the Boeing #2 plant in Tukwila, Washington, where B-29s were assembled in what we’d now call the surge to win World War II. The plant may or may not be technically preservable, it may or may not have reuse potential, it may or may not be significant enough to be worth preserving – though quite a few people seem to think it is. But the possibility of preserving the plant is not being considered via the consultative processes established under Section 106 of the National Historic Preservation Act (NHPA), even though federal agencies are involved in the demolition.

Having had this brought to its attention by concerned citizens and the Washington State Historic Preservation Officer (SHPO), the ACHP issued a letter to the SHPO on September 23, finding that the federal agencies involved had no responsibility to carry out Section 106 review.

Why? Because the instrument by which the agencies have agreed that the demolition should go forward, and so advised the Boeing Company, is a consent decree which will be signed off on (presumably) by the Federal District Court. The consent decree relates to the cleanup of toxic materials at the site of the plant. The ACHP says that in its opinion, “the negotiation of the consent decree and the filing of it in court did not trigger the requirements of Section 106.”

The ACHP’s reasoning runs like this:

(1) Section 106 must be complied with prior to a federal agency’s “approval of the expenditure of any Federal funds on the undertaking” or the “issuance of any license.” This, of course, is true.

(2) The negotiation and filing of the consent decree did not involve federal funding for the project governed by the decree. If one ignores whatever funds the agencies expended on negotiating the agreement, this too is true -- though if one defines the negotiation of the consent decree as itself being a federal undertaking, it is quite evidentally not true. But letting that one ride....

(3) The negotiation and filing of the consent decree “did not involve a federal agency’s licensing or approval.” This strikes me as a curious and questionable conclusion.

The ACHP acknowledges that the federal agencies “had to agree with Boeing in order to jointly file the decree in court,” but it argues that this doesn’t mean the agencies are “licensing” Boeing to do the demolition, or “approving” its doing so.

Why? Two reasons:

(1) “The approval necessary for the consent decree to go into force will come from the court….and the court’s role …will not trigger Section 106 since courts are not ‘federal agencies’ as defined by the NHPA.”

(2) The consent decree (as drafted by Boeing and the federal agencies) “states that it ‘is not, and shall not be construed to be, a permit issued pursuant to any law.’”

So what we have here are a couple of federal agencies that have decided – without the consultation and public review required by Section 106 – that it’s OK for a historic property to be destroyed, and they’ve negotiated an agreement providing for such destruction and tossed in some language about how this agreement is not to be construed as a permit. Because of this statement, and the fact that the consent decree signed by the agencies will be filed with a court (which indeed is not a federal agency under NHPA), and the court will then be responsible for overseeing its enforcement, the ACHP is saying that no federal license or approval is involved, and Section 106 doesn’t apply.

Let’s imagine applying this principle of 106 review to another case. Imagine that the Mt. Vernon Ladies’ Association, a corporation more or less equivalent to the Boeing Company, decides that our first president’s old digs have gotten pretty shabby and ought to be done away with. Imagine that it’s also been discovered that George’s wine cellar has been leaking really rotten port wine into the Potomac, and the Environmental Protection Agency (EPA) wants this pollution cleaned up.

Just in passing, it’s worth noting that Section 110(a)(2)(C) of NHPA requires each federal agency to have a program that ensures that “the preservation of properties not under the jurisdiction or control of the agency, but subject to be potentially affected by agency actions are given full consideration in planning,” and that Section 110(d) of NHPA directs that “consistent with the agency's mission and mandates, all Federal agencies shall carry out agency programs and projects … in accordance with the purposes of this Act,” one of which purposes, set forth at Section 2(5) of NHPA is to “encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment.”

But let’s assume that EPA isn’t interested in that congressional direction -- what federal agency is? Let’s just focus on Section 106, and assume that EPA wants nothing to stand in the way of cleaning up that nasty port, and the Ladies’ Association is gung-ho to get rid of the mansion. It looks like all they’ve got to do is negotiate a consent decree and include some language (who cares what its legal basis is?) saying that it’s not to be construed as a permit, ask a court to make it happen, and as far as the ACHP is concerned, they’re good to go.

Now maybe that’s true. Maybe real lawyers (I don’t even play one on television) can show why the federal agencies in a case like this are under no obligation to take into account the effects of their agreement on historic properties. And maybe the Boeing plant isn’t worth saving; I have no opinion on that. But it seems strange to me that the ACHP should so willingly accept the notion that a federal agency can get out of its 106 responsibilities simply by filing papers with a court that contain some magic words.

Back in the day when I was learning Section 106, at the knees of such founding fathers as the late Robert Garvey and the still-kicking Ken Tapman (respectively the ACHP’s first executive director and general counsel), I was taught that if there was a federal official’s signature on a piece of paper directing or allowing someone to do something, that constituted a license for purposes of Section 106. Maybe I was misinformed, or misunderstood, or maybe there’s subsequent case law that vitiates this simple rule. If so, it would be good, I think, for the ACHP to advise us. It is not altogether convincing to be told that “106 doesn’t apply because a court is involved” or “106 doesn’t apply because the parties have said what they’ve signed isn’t a permit.” But it does get the ACHP off the hook of actually having to promote the consideration of historic properties under Section 106.

Ethnographic Studies Again

I’ve been asked – again – why I’m opposed to ethnographic studies as a part of environmental-cultural-social impact assessment. Let me try to be clear.

1. I’m not. It’s a bum rap. What I’m opposed to is the assumption that one MUST do such a study in order to identify places or things of cultural importance to people. Sometimes you do, sometimes you don’t.

2. Here, I think, are the basic rules one should follow in deciding whether such a study is needed.

a. If a group of people say something is culturally significant to them, it is. You ought to take them at their word, because after all, who can possibly know better than they? You don’t need an ethnographic study to verify that it’s important to them. To say you do is deeply ethnocentric: “I’m not going to believe you until an expert, not of your culture but of mine, verifies that what you say is true.” Insisting on a study will also, of course, take time and cost money, both of which can be saved by just accepting what people assert.

b. If one subgroup of a group says something is culturally significant, and another subgroup of the same group (e.g. tribe) says it’s not, then you may need a study of some kind to determine why you’re getting diverse perspectives, but it’s likely you can deal with the question more simply and straightforwardly just by sitting down with both subgroups and discussing where they’re coming from.

c. If the cultural significance of something is suspected, but not asserted by anyone, then you probably DO need an ethnographic study (by whatever name) to find out whether it has such significance in someone’s eyes. For example, there are plenty of things (places, plants, minerals, etc.) that are important to people who aren’t very directly represented by, say, a tribal government, and/or who don’t readily take part in Euroamerican decision making processes. A careful, respectful study may be needed to find out what the concerns of such people may be.

d. If there’s reason to believe that a relatively dominant subgroup (say, a tribal government) is suppressing the concerns of a less dominant one (say, elders), then some kind of study to ascertain the concerns of the latter may be in order – because both subgroups are human beings and citizens, and have the right to be heard. Exactly what kind of study is needed, or what alternatives to a study may be pursued, is something that needs to be very carefully worked out in view of the inevitable political complications involved.

e. Finally, if you’re trying to relate the significance of something to some set of specific criteria – like those for inclusion in the National Register of Historic Places – then you may need a study to do so, but for the sake both of efficiency and of being respectful to people, you ought first to consider the option of just assuming the thing is significant for the purposes of whatever planning exercise you’re engaged in.

In short, I don’t object to ethnographic studies where they serve a real purpose. What I object to is treating them as an across-the-board, standard thing to do, and what I object to even more is using them as a way to “vet” what a group of people say is significant to them. Such vetting is particularly offensive when the group is a sovereign tribal government or its equivalent.

OK, is that clear?

Paying SHPOs to Consult? The ACHP Interprets the Law but Fails to Advise

The Advisory Council on Historic Preservation (ACHP) has recently – well, I think it was recently; like the good historical organization it is, the ACHP didn’t bother to date it – issued a legal opinion on whether it’s OK for federal agencies to pay State Historic Preservation Officers (SHPOs) for their advice and assistance in the conduct of project impact reviews under Section 106 of the National Historic Preservation Act (NHPA). The opinion doesn’t seem to be available directly through the ACHP web site (www.achp.gov), but I presume it can be obtained upon request.

The bottom line is that the ACHP says yes, it’s OK for agencies to compensate SHPOs for the work they do in conducting Section 106 review. The statutory authority for such compensation is actually pretty clear; Section 110(g) of NHPA authorizes each federal agency to:
… include the costs of preservation activities of such agency under this Act as eligible project costs in all undertakings of such agency or assisted by such agency. The eligible project costs may also include amounts paid by a Federal agency to any State to be used in carrying out such preservation responsibilities of the Federal agency under this Act, and reasonable costs may be charged to Federal licensees and permittees as a condition to the issuance of such license or permit (emphasis added).

The opinion points out that compliance with Section 106 is a pretty basic part of carrying out an agency’s responsibilities under the act, so clearly agencies are authorized to pay SHPOs for helping them do it. Usefully, the opinion stresses that Section 106 compliance is exclusively the responsibility of federal agencies. Whether paid for it or not, SHPOs don’t (properly) make determinations or otherwise call the shots under Section 106; they advise and assist agencies in doing so.

I suppose it would be asking more of a legal opinion than such an opinion can deliver, but it would be nice to see the ACHP go a bit beyond the letter of the law and provide some advice (yes, advice!) about some of the issues that naturally come up, or ought to come up, in connection with agency compensation to SHPOs.

First, of course, is the question of whether having the feds pay the SHPO to help review projects compromises the SHPO’s independence and ability to (in the really quite silly words of the Section 106 regulations) “reflect the interests of the State and its citizens in the preservation of their cultural heritage.” The ACHP apparently thought about this question, because the opinion notes that the National Park Service (NPS) has been paying SHPOs for decades out of the Historic Preservation Fund, “without raising concerns that SHPOs are somehow compromised by it in their Section 106 role.” The ACHP cites no source for its assurance that no concerns have been raised. I have a hunch that there are a few people out there among the citizens whose interests in cultural heritage the SHPOs are supposed to reflect who do have concerns about how independent an SHPO can be in reviewing NPS projects when NPS controls the SHPO’s federal purse-strings. I even suspect that there may be an SHPO or two who’s troubled by this relationship. But I guess such concerns have never been “raised” to a level discernible by the ACHP. And even if one is untroubled by the NPS-SHPO relationship, it doesn’t necessarily follow that one ought not to wonder about SHPO independence if an agency with real money and political clout starts lining their pockets. Some thoughts on how to ensure SHPO independence and responsiveness to citizen concerns would be welcome, should the ACHP have any.

Then there’s the question about just what an agency should pay an SHPO to do. In another opinion, some years ago, the ACHP said that agencies didn’t need to reimburse Indian tribes for the expenses they incur in consultation, representing their own tribal concerns, but should compensate them for work that was on the order of what a contractor might do, supplying substantive data or services. Should the same rule apply to SHPOs? But what authority does the SHPO have in Section 106 review if he or she isn’t acting on behalf of the state and its citizens? If an agency is going to pay an SHPO, but not for representing the concerns of the state’s people, what precisely does the agency actually expect the SHPO to do?

Underlying all this is the almost never-asked question of what the SHPO’s role should be in Section 106 review. The less sophisticated federal agencies, and perhaps the majority of non-federal entities like developers who get their projects reviewed because they want federal licenses or assistance, tend to have a pretty straightforward notion of the SHPO’s role: it’s to sign off on projects, approve plans, issue “clearances.” The more sophisticated agencies use fancier language to mean the same thing: the SHPO is expected to concur or not concur in determinations, and execute agreements. Which is, in part, more or less what the regulations say.

But the regulations since their revision in and around 2000 have also directed agencies to consult with SHPOs at the very beginning of a project review under Section 106, in planning how to involve the public (36 CFR 800.3(e)) and in identifying consulting parties (36 CFR 800.3(f)), as well as in establishing the scope of any work needed to identify historic properties and determine effects (36 CFR 800.4(a)). It is at this stage in review that an SHPO can be most helpful to an agency, and to the citizens that the SHPO ostensibly represents. The SHPO can help the agency and other concerned parties set the stage for effective consultation, get people together and talking so that problems get identified and resolved before they become intractable. This would be worth paying for, and it’s a function that wouldn’t necessarily compromise the SHPO’s responsibility to serve the people of the state.

Neither agencies nor SHPOs focus much on the performance of these early planning responsibilities, and in the case of the SHPOs there’s a good reason for this. It goes back to those purse-strings that NPS holds. NPS periodically reviews the SHPOs to make sure they’re spending their federal money the way NPS thinks is right, and it requires the SHPOs to keep records of what they do. The last time I had occasion to look at the list of stuff NPS wants SHPOs to keep track of – about a year ago – I was grimly amused to find that the list hadn’t changed since about 1985. So it doesn't reflect the innovations of the 2000 (and later) Section 106 regulations), and what it does do is insist that SHPOs keep careful track of things like determinations of eligibility and effect, and the execution of memoranda of agreement. Reasonable enough things to keep track of, but by focusing on these interactions, which inevitably occur late in the process of review, NPS encourages SHPOs to focus on them too, to the inevitable exclusion of attention to early coordination.

So, SHPOs are convinced that they must carefully process each determination of eligibility and effect – whatever that may mean to a given SHPO, In the context of NPS oversight and direction. That’s a time-consuming business, and since it does tend to happen rather late in review, it’s likely to be fraught with difficulty, particularly if the agency (lacking useful early SHPO advice) has not gotten off to a good start in consulting concerned parties and establishing its scope of work. SHPOs become overburdened with requests for their concurrence in determinations, to say nothing of requests for “clearance” or its equivalent. Agencies get frustrated with the speed at which SHPO review proceeds. When asked how things can be sped up, the SHPO is likely to say: “Pay me so I can put on more staff.”

This sort of question and answer, I suspect, is what has led to the ACHP legal opinion. Now consider what may happen as agencies digest it. Agencies pay SHPOs. SHPOs lay on staff. Staff speeds up the processing of agency paperwork. All very well, except we ought, perhaps, to remember that Section 106 review isn’t supposed to be about the efficient processing of paper; it’s supposed to be about reasoned consultation to balance the interests of preservation and other public values. And of course, paying for the processing of determinations and agreement documents inevitably raises the specter of conflict between the SHPO’s duty to his or her state’s citizens and to the agency with which he or she is contracting.

We’re already well along in the process of turning SHPO offices into paperwork processing mills, whose driving priorities are turning reviews around, getting the paper out the door. I’m afraid the ACHP’s legal opinion – correct as it is – is going to exacerbate this process.

It’s really time – it’s been time for a decade or more – for the parties who oversee how things are done under NHPA – that is, NPS and the ACHP, with the agencies, SHPOs and, critically, non-governmental interests – to step back and take a hard look at how the system’s working, and how it can be made better to fulfill the purposes of the statute. I know, I know, the ACHP has undertaken reviews from time to time under various authorities, but these tend to be very internal-to-the-government, and they tend to produce easily ignored fluff. And they look outward and criticize the agencies; they don’t look critically at how the ACHP, NPS, and SHPOs themselves do their business.

We ought to have a system in which agency payments to an SHPO, if they must be made, are made not to accelerate the processing of determinations of eligibility and effect or the conclusion of agreements, but to inform early agency planning – to help make sure that all the appropriate consulting parties have been identified and brought into consultation, and that the agency, with those consulting parties and the public, has done a good job of scoping its identification and effect determination work. That, I think, could both speed up review and make it more meaningful and responsible; it could not only better fulfill the agency’s responsibilities but also help the SHPO really “reflect the interests of the state and its citizens in the preservation of their cultural heritage.” The ACHP legal opinion certainly doesn’t preclude that sort of arrangement, but SHPO operations under NPS oversight don’t encourage it. That’s a problem that the ACHP ought to think and advise about.

The ACHP on "Reasonable and Good Faith" Identification

Unaccustomed as I am to saying anything good about the U.S. Advisory Council on Historic Preservation (ACHP), I’m happy to report that in my opinion, they provided some pretty decent guidance recently about what constitutes a “reasonable and good faith effort” to identify historic properties under their regulations (36 CFR 800). This shouldn’t be a challenging question, but it seems to be; federal agencies, State Historic Preservation Officers (SHPOs) and others are forever trying to translate the simple terminology of the regulations into hard-and-fast standards, which leads to all kinds of idiotic arguments. Does a “reasonable and good faith effort” always demand an archaeological survey? A survey of possibly historic buildings? A landscape study? Must we space our archaeologists ten meters apart on the ground, or will fifteen do? Must everybody on the team have an advanced degree? Oh dear oh dear; whatever shall we do?

The ACHP’s guidance is laid out in a letter dated August 20, 2010 and signed by Reid Nelson, Director of the ACHP Office of Federal Programs. It’s addressed to an SHPO and deals with a particular case, neither of which needs to be identified here. The guidance is contained in the following lines:

In the ACHP's opinion, an agency official's identification effort is "reasonable and in good faith" and in compliance with the Section 106 regulations when it is:

(1) logically designed to identify eligible properties that may be affected by the undertaking. understanding that the regulations do not require identification of all such properties, without being excessive or deficient in light of the cited factors {i.e., the work is reasonable);
(2) not compromised by a disregard for the historic preservation responsibilities of federal agencies as set forth in Section 2 of the NHPA, or by dishonesty, such as manipulating or ignoring evidence (i.e., the work is carried out in good faith): and
(3) supported by documentation that allows reviewing parties to understand (not necessarily to agree with) the basis of its findings.

Oh sure, it could have said more. It could have emphasized the process of scoping – consider the area you’re concerned about, its character, its history, its prehistory and ethnography and sociology, discuss it with people who know about it (like those who live there), and use the resulting information to design your scope of work. It could have cited the rules laid out by the Tenth Circuit in Pueblo of Sandia v. United States (50 F.3d 856 [1995] – see http://www.achp.gov/book/case132.html), which held in essence that an agency needs to consider all the relevant background information available to it in designing its identification program, and consider applicable guidance, and not keep data from consulting parties. It could have emphasized the fact that one may need to do different kinds of identification in different parts of one’s area of potential effects (APE), or in different APES, depending on the kinds of impacts that are anticipated (physical, visual, indirect, etc.). But I’m happy to see it say as much as it does. Particularly –

That the regulations don’t require identifying every single historic property out there. You need to identify enough, in enough detail, to get a handle on what the effects will be. What percentage of the total that means depends on all kinds of factors – notably including the kinds of impacts you’re likely to have. And what may be more important than what percentage you ought to identify is how you ought to identify them, and what you ought to note about them. For example, if you’re looking (sic) at visual effects, you need to think and ask about whether a place has characteristics (like people living in it who value their view) that will be affected by changing its viewshed.

That the regulations ought to be implemented with an eye toward the responsibilities laid out in Section 2 of NHPA – that is, the responsibilities to:

(1) use measures, including financial and technical assistance, to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations;
(2) provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments;
(3) administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations;
(4) contribute to the preservation of nonfederally owned prehistoric and historic resources and give maximum encouragement to organizations and individuals undertaking preservation by private means;
(5) encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment; and
(6) assist State and local governments, Indian tribes and Native Hawaiian organizations and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities.

Too often, I think, we lose track of why we’re doing all this historic preservation, Section 106y stuff. We’re doing it because Congress, in Section 2, told agencies to do all those things. I think the ACHP has done us a favor by reminding us of this fact.

And I appreciate the final point, about documentation. The adequacy of documentation in identification ought not to be judged by weight, volume, number of fancy words or adherence to any particular set of standards, but by its understandability. It ought to be clear, it ought to be straightforward, it ought to make sense to the lay reader, and it ought to be as complete as it needs to be to allow readers to understand what’s out there and how it will be affected.

The “reasonable and good faith effort” standard is one of the great strengths of the Section 106 process, and it’s too often ignored in favor of rigid technical standards. The ACHP deserves applause for reminding us that it exists, and of what it means.

New Acronyms

As the inventor of such widely used cultural resource management (CRM) acronyms as "TCP" (traditional cultural property or place) and "APE" (area of potential effects), I'm pleased to announce promulgation of two more.

1. "MMD" stands for "mealy-mouthed drivel," that is, high-falutin language that means nothing (especially if not followed up in, or if contradicted by, a document's substantive provisions). Example (real language, with agency identity protected):

The Tribes and the agency shall, in a spirit of positive collaboration, effect goals in regards to the project, protection and preservation of natural and cultural resources, under the agency’s jurisdiction or control and for mutually creating a positive management strategy for maintaining properties that considers the preservation of their archaeological, historical, and cultural values and the avoidance of adverse effects in the light of the views of the Tribes.

2. "GSF" stands for "gratuitous statement of fact," wherein an agency clutters up a document by stating facts having nothing directly (or often even indirectly) to do with the subject of the document. These may note that the agency will obey a law or regulation (awfully good of them, yes?), or simply provide an extraneous bit of filler material. Example (again, real language, agency ID disguised):

The agency, in carrying out its responsibilities as the lead Federal agency for NHPA Section 106 compliance, has developed policies and procedures to help guide its planning and decision making as it affects historic and cultural properties.

I've recently reviewed two draft-final programmatic agreements (PAs) under Section 106 of the National Historic Preservation Act, almost every clause of which is made up of MMD and GSF. This creates a dense thicket of prose in which the substantive provisions, such as they are, get lost, and it's hard for even an experienced reader to pick out their strengths and weaknesses.

Please welcome MMD and GSF to the lexicon of CRM acronymology.

Beyond Deepwater Horizon

Here's what I sent the President today.

May 15, 2010

President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Dear Mr. President:

As a supporter of your administration and a specialist in aspects of environmental impact assessment (EIA), I applaud your direction that a thorough review be undertaken of Minerals Management Service (MMS) oversight of oil drilling in the Gulf of Mexico.

However, the problem is not just with MMS, or with offshore oil rigs, and limiting your scrutiny to the circumstances that permitted the Deepwater Horizon disaster to occur will not be effective. We – and by “we” I mean the federal oversight agencies and the EIA community – have developed a culture over the last couple of decades (not solely during the Bush administration, though certainly exacerbated by it) in which it is perfectly OK for EIA to be performed by and for the proponents of projects like Deepwater Horizon, and in which agencies see their major roles as being to “streamline” the review of such projects. Congress, the agencies, and to a considerable extent the American people have come to see EIA as merely a pesky bureaucratic hoop to be jumped through. Such review as is done is largely obscure to the public, which is excluded from meaningful participation by obscure rules and jargon-laden analyses.

I explored some of these issues on a small scale in my 2009 book, Our Unprotected Heritage, a copy of which is enclosed. Chapter 8 contains recommendations to you for some initial actions to cause adjustments in the culture of EIA. These recommendations are a bit out of date in view of the Deepwater Horizon disaster; it is clearly time for a truly comprehensive initiative to change the culture of EIA throughout the federal establishment and the consulting community – to make our assessment work more thoughtful, honest, and participatory. I hope you will look beyond the Deepwater Horizon and lead such an initiative.

Respectfully,

/s/ Thomas F. King

King, You're Full of Crap

Nobody else has asked this question – too polite, I suppose – so I will.

“OK, King, you’ve excoriated the Bureau of Land Management (BLM) for putting out a programmatic agreement (PA) on solar projects that turns on post-approval development of cultural resource management plans (CRMPs). You say BLM is violating Section 106 of the National Historic Preservation Act (NHPA). However, you conveniently ignore the fact that there are scores, hundreds, maybe thousands of PAs already in place all over the country that do exactly the same thing. For instance, there are military bases with integrated cultural resource management plans (ICRMPs), and there are reservoirs where the Federal Energy Regulatory Commission (FERC) has done PAs requiring CRMPs. There are interstate pipelines with PAs calling for CRMPs. If BLM’s solar PA is contrary to law, how come all those others aren’t? How come the people who drafted them – including you, King – aren’t in jail? Huh? Huh?”

Fair question, I (naturally) think, and it may well be that those who drafted some of those PAs should be in jail, but I do think there’s an important distinction between at least many of the CRMP (by whatever acronym)-based PAs now in existence and what BLM is trying to peddle to the solar power industry.

Consider, for instance, a FERC-regulated hydroelectric project – basically a reservoir – where FERC executes a PA requiring preparation of a CRMP. The undertaking subject to review here is not the construction of a new facility; the federal undertaking is FERC’s decision-making about whether to extend the power company’s license for another 20 or 30 or 50 years. So FERC causes the permitee to collect some basic information on what’s happening to “cultural resources” (admittedly, usually too narrowly defined, but that’s another issue) around the reservoir and then consults, for awhile at least, with the permitee, State Historic Preservation Officer (SHPO), tribes, and other interested parties and decides that, yup, there are ongoing effects (through erosion, public access, whatever), and a CRMP should be developed to deal with them. In this case FERC has taken effects into account, and it’s simply decided that a CRMP is a good tool for addressing them. Never mind whether they’re right or wrong in particular cases; they’ve played the game by the rules.

Or take the more difficult case of the interstate pipeline. The typical problem here is that the applicant for federal rights of way can’t get on the land they want to traverse to do surveys and such until they get their financing, and they can’t get their financing without their right-of-way, and they can’t get their right-of-way without the federal agencies going through Section 106 review. So they can’t possibly identify “all” the historic properties subject to effect (as if anyone ever could) before the federal action is taken. So what happens – in my experience, and admittedly it’s been awhile since I’ve done a pipeline – is that the agencies, applicant, SHPOs, tribes, et al sit down and review what they DO know about the rights-of-way and alternatives, and say, for example, that since the thing is basically a ditch in the ground, the major effects are going to be on archaeological sites, but maybe there’ll be visual effect issues when they go through the Green Ridge Mountains where the tribes carry out spirit quests on hilltops. Then they’ll put together a CRMP that spells out how archaeological sites will be dealt with and how further consultation will be done to control visual effects in the Green Ridge – and maybe that alternative route X will be used because it’s thought by the consulting parties to have the least potential for such effects. Again, they’ve taken effects into account, and used the CRMP as a mechanism for addressing those effects.

What BLM is proposing appears to be quite different. Apparently the applicant has had some archaeological surveys done, and maybe they’ve talked to some people about effects, but there’s nothing in the PA that even purports to represent consideration of the results of these studies, this consultation. Instead, the PA proposes that BLM will carry out the whole standard process of Section 106 review – identifying historic properties, evaluating them, determining effects on them, resolving adverse effects – via the CRMP after a project is approved. In this case, BLM has not taken effects into account; it has just proposed to promise to do so sometime down the road, after the project is approved.

Now, it may be that there are lots of other PAs out there that reflect the same approach as BLM is proposing for the solar projects; if so, then I’d say they’re contrary to the letter and spirit of the law. But those that use CRMPs (or ICRMPs, or HRMPs, HPMPs, HMPs or Freds) to address effects that have been recognized as occurring (as in a typical FERC hydro project) or reasonably predicted to occur (as in the pipeline example) seem to me to be in the clear. The more ethereal and abstract they get, however – the more they push everything off into the post-decisional future – the more likely they are to violate the straightforward language of the statute:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.
(NHPA Section 106 [16 USC 470f], emphasis added)

Responding to a Rumor, or, Post-Hoc Planning is an Oxmoron

I'm told it's being noised about in California that I've been retained to comment on programmatic agreements (PAs) being proposed by the Bureau of Land Management for solar projects in the California desert. This in fact is not (currently) the case; I was approached to perform such services, but the key dates fell during the time I'll be out of the country without email (on Nikumaroro, in Kiribati), so I had to decline. Without such retention, however, I did file a comment on a current proposed BLM solar PA; my comment email is shown below. Attached to it was a marked-up copy of the PA itself, which I'd be happy to provide to anyone who's interested (IF you contact me in the next few days before I head for Nikumaroro). In short, I think BLM is getting waaaay carried away in its infatuation with PAs and "cultural resource management plans," to the point at which it's simply ignoring the straightforward letter of the law. Guys, read the statute: gencies are supposed to consider the effects of their proposed actions BEFORE they make decisions, not sometime afterwards.

Text of 5-1-2010 Email:

The California Unions for Reliable Energy, a consulting party in the above-referenced matter, have asked my advice in preparing comments on the draft programmatic agreement (PA), and in the interests of efficiency have suggested that I forward my initial comments directly to you. I trust that you will distribute them to the other consulting parties. I attach a precis of my qualifications for your reference; suffice to say that I have been involved in the development and implementation of many PAs over the last forty years, and in the development of regulatory and other guidance for their preparation and use.

I have appended comments on specific sections to the attached PDF copy of the draft. In summary, I think this PA represents a deliberate though probably unwitting effort on BLM's part to circumvent both the letter and the intent of Section 106 of the National Historic Preservation Act. That section directs federal agencies to take into account the effects of their actions on historic properties PRIOR TO the issuance of any license. The PA rather explicitly provides for such effects to be taken into account -- to the extent they will be -- AFTER issuance of a license for the Tessera Solar - Imperial Valley Solar Project. It is a sort of promissory note: the consulting parties are expected somehow to trust BLM to comply with the requirements of Section 106 at a later date, after it has deliberately NOT complied with them at the point in its planning process at which Congress directed it to comply.

I am aware, of course, of the allowance made at 36 CFR 800.1(c) for "conducting or authorizing nondestructive project planning activities before completing compliance with section 106," but note that this allowance is subject to the caveat that such actions must not "restrict the subsequent consideration of alternatives to avoid, minimize, or mitigate the undertaking's adverse effects on historic properties." This PA would permit BLM to authorize far more than "nondestructive project planning activities;" it would allow it to adopt an alternative and authorize its development, thus restricting the consideration of all other alternatives.

I am also aware of the provision at 36 CFR 800.14(b)(1)(ii) for a PA to be developed "when effects on historic properties cannot be fully determined prior to approval of an undertaking." This provision may well be relevant in this case, given the scale of the subject project and the dispatch with which BLM is expected to reach a decision about it. I do not believe, however, that this provision justifies entirely putting off all consideration of effects on historic properties until after BLM makes its decision. It may well be that BLM cannot identify every possibly affected historic property to the extent it thinks necessary to comply with Section 106, or to develop a detailed appreciation of every effect, before making its decision, but surely it can do SOMETHING to assess such effects. Simply adopting the applicant's "cultural resource" (sic: archaeological) survey reports and saying that further identification of historic properties, all effect determination, and all consideration of measures to avoid, minimize, or otherwise mitigate adverse effects will be done later (after project approval) does not, in my view, constitute the "taking into account" that the law requires. One might as well say that one will minimize the potential for damage from offshore oil spills by cleaning up after them.

There are other problems with the PA, notably the narrow focus on archaeological sites that is explicit in some sections and implicit in others (for instance, in the use of terms like "100 percent survey" and "avoidance"). Although occasional bows are made toward Indian tribal concerns -- which may relate to project impacts on extensive landscapes, viewscapes, plant and animal resources, etc. -- there is no real provision for addressing such concerns, and any similar concerns that non-tribal parties may have are not considered at all. The provisions for future consultation with outside parties -- such as they are -- are so narrowly structured as to be meaningless; typically, BLM will inform people of things, give them a restricted period in which to comment, and then decide what to do, without any required regard for what people have said. This is not consultation; it is a formula for high-handed disregard of public interests.

Again -- a PA may very well be appropriate in this case, but not the sort of pig-in-a-poke PA you have drafted. BLM should sit down with the consulting parties and seek to get a realistic handle on what the effects of the various project alternatives may be, then craft creative mechanisms for addressing them. This may or may not require more study of the alternatives and their specific effects; that is for the consulting parties to decide. Going forward with this PA as drafted, however, would be offensive to any fair reading of the requirements of Section 106 (to say nothing of NEPA, CEQA, AIRFA, RFRA, and perhaps other legal authorities), as well as insulting to the intelligence of the consulting parties.

Thank you for the opportunity to comment.

Tom King

Blowing Wind on Capitol Hill

I know I’m in a minority, but my guess is that when he makes his decision this week or next on the Cape Wind project, the Secretary of the Interior will say no. If this happens, it will almost certainly generate a great flurry of snorting, trumpeting and braying on Capitol Hill, with proposals to:

• Exempt wind (and probably solar and nuclear) projects from the requirements of NHPA (and maybe NEPA);

• Rein in the renegade Advisory Council on Historic Preservation by somehow constraining the range of things it can say in comments;

• Resurrect the tired old notion of having Section 106 apply only to formally registered properties; and even

• Undo Section 106 altogether.

The historic preservation community will predictably close ranks and defend the status quo.

Ho-hum. Business as usual. But is there any alternative? Any more creative way to react to the rhetorical gusts?

How about this? The real problem with Cape Wind, from the standpoint of Section 106 review, was that the Minerals Management Service (MMS), and hence the Cape Wind proponents, got lulled into thinking there was no big preservation issue involved; hence they ignored the real issues until it was too late to consult effectively and (perhaps) reach an agreeable compromise. This lulling resulted from two pieces of bad analysis:

1. The premise that the visual effects of the project on shore-side historic properties, being “only” visual, were “only” indirect impacts, and hence not that big a deal; and

2. The premise that the Sound, not being a “site” as ordinarily understood under National Register guidance, couldn’t be eligible for the National Register, and hence (disregarding all laws besides NHPA), didn’t have to be further considered as a cultural resource subject to impact.

Why did MMS get and pay attention to such dippy analyses? Well, there are probably lots of reasons having to do with the political situation at the time, the intelligence of the individuals involved, and so on, but I’d argue that a lot of it came about because we’ve all become so narrow-minded and compartmentalized in our thinking about environmental impacts. The CRM firm is hired to analyze impacts on “historic properties” or “cultural resources,” understood to mean archaeological sites, old buildings, and maybe landscapes. The environmental impact firm is hired to consider biological and social and maybe visual effects. One maybe provides input to the other’s report, or maybe the environmental guys just read the CRM report and put their own spin on it. Even if they are not subject to political or economic pressure to go light on the project’s impacts (and they probably are), they have neither the organizational structure nor much incentive to look at things in broad, interdisciplinary terms, to ferret out public concerns, and to explore alternatives as anything but window-dressing to make their reports look objective. So they don’t warn of impending train wrecks, and of course most of the time they get away with it, but every now and then, as in the Cape Wind case, the train really does go off the track.

The problem, in short, is that our system (sic) for environmental impact analysis has become unworkable and ineffective, especially where the cultural aspects of the environment are involved. That system needs a thorough overhaul. And it needs it not only to accommodate accelerated clean energy development, or homeland security, or whatever other development schemes float a particular congressperson’s boat, but to make the system work more efficiently, more effectively, less stupidly, and more in tune with the general public interest – including the interests of cultural resource management, broadly construed.

So I’d say to the historic preservation community (if it were listening; I don’t kid myself into thinking it is), don’t circle the wagons when the rampaging hordes come storming down the Hill. Welcome them, encourage them to sit down and reason together. Let’s have a study, let’s have a commission, let’s have hearings to examine not just how to get historic preservation out of the way of this year’s development fad, but how to make the whole environmental impact assessment process more sensible and responsible. I’m not so naïve as to think that this would necessarily have useful results – if just the usual suspects are involved (Interior, the ACHP, the National Trust, the Council on Environmental Quality), it probably won’t. But there’s just a chance that it would produce something useful, and it would beat spending another year or two at the barricades defending a status quo that probably, truth be told, isn’t worth the effort.

A Tribal Resolution

I've been seeing more and more cases in which agencies are unnecessarily complicating their compliance with Section 106 of the National Historic Preservation Act, and disrespecting Indian tribes in the process, by getting all wrapped up in largely irrelevant nitpickery about the application of standards and procedures in whose development the tribes have had no part. And with all due respect for the tribes, I wonder why they're being so good-natured about this disrespect. If I were a tribe, I know I'd be sick to death of having federal and state officials decide whether and how places significant to me were (and were not) eligible for the National Register, and what kinds of data I'd be required to cough up in order to get the agencies to consider impacts on them. So I thought to myself, "OK, Self, if you were a tribe, what would you do?" And myself responded: "Assuming I'm a tribal government, I'd pass a resolution to send to all federal agencies and State Historic Preservation Officers, saying in essence: 'look, you arrogant dummies; WE are the only ones who can decide what's significant to us, and if you're going to pretend to respect our cultural values you'd bloody well better respect that.'"

So I tried to draft such a resolution, in proper resolution language, presented below. I have no pride of authorship, intend to retain no copyright, and invite any tribe that's interested to do with it as such tribe may desire.

TFK

RESOLUTION OF THE ________(TRIBE)________ TRIBAL COUNCIL

WHEREAS the ___(Name of Tribe)___ (Tribe) is a sovereign American Indian tribe entitled to government-to-government relations with the government of the United States of America; and

WHEREAS the government of the United States of America, including all agencies thereof, has a trust responsibility to manage tribal lands and tribal cultural and natural resources, including tangible and intangible cultural resources valued by the Tribe wherever such resources may occur, in a manner responsive to the interests of the Tribe and its members; and

WHEREAS the cultural values and spiritual beliefs of the Tribe are intimately related to its ancestral lands, to natural places, and to the plants, animals, and spiritual qualities of such lands and places; and

WHEREAS the government of the United States of America has created a system for addressing the impacts of its actions on land-related cultural values that is built around the eligibility of culturally important lands, water bodies, and other places for the National Register of Historic Places; and

WHEREAS the regulations governing the National Register of Historic Places (36 CFR 60) were developed by the U.S. National Park Service without consultation with Indian tribes, and without evident consideration for tribal concerns; and

WHEREAS the Congress of the United States of America in 1992 added Sections 101(d)(6)(a) and (b) to the National Historic Preservation Act, reminding agencies of the United States government that places of religious and cultural importance to tribes could be eligible for the National Register of Historic Places and directing agencies to consult with tribes about the impacts of their actions and decisions on such places; and

WHEREAS under current regulations eligibility for the National Register is decided substantially by agencies of the U.S. government in consultation with State Historic Preservation Officers; and

WHEREAS it is fundamentally inconsistent with the principles of tribal sovereignty and the trust responsibility borne by agencies of the United States government toward Indian tribes for federal and state officials to decide on the eligibility of tribal places, and hence on the responsibility of agencies to consider the effects of their actions on such places;

NOW, THEREFORE, the _____(name of tribe)_____:

I. ASSERTS that all lands, water bodies, and other places it so identifies as historically, culturally, or spiritually important to the Tribe must, as a matter of the United States government’s trust responsibility toward the Tribe, be assumed by all federal agencies to be eligible for the National Register of Historic Places; and

II. INSISTS that all agencies of the United States government:

(a) Accept and respect the above assertion with reference to any land, water body, or other place identified by the Tribe as historically, culturally, or spiritually important;

(b) Respect tribal interests in and values ascribed by the Tribe and tribal members to such places;

(c) Consult in good faith with the Tribe to identify such places as may be affected by agency actions, approvals, and other decisions directly, indirectly, or as parts of a pattern of cumulative effects;

(d) Consult in good faith with the Tribe concerning potential impacts on such places as may arise from federal agency actions, approvals, or other decisions, seeking agreement with the Tribe about measures to avoid, reduce, compensate for, or otherwise mitigate any adverse effects on tribal cultural and spiritual values and interests; and

(e) Refrain from imposing regulatory or other standards and burdens on the identification and management of places important to the Tribe, or on consultation with the Tribe, to whose imposition the Tribe has not explicitly acceded, except where such standards or burdens are specifically enacted by the United States Congress.

Don't Do What We Did: A Small Critique of Cultural Resource Management in the United States

Introduction

A couple of years ago, at the request of a colleague in Brasil, I drafted a quick paper for him to translate into Portugese for publication in his country. I sent it off and never heard of it again, in any language. A recent facebook posting by Trish Mitchell mentioning that her country (which?) is thirty years behind the U.S. in its development of CRM laws and programs, made me think that maybe it would be interesting to some people (Trish, anyhow) for me to post the paper, so here it is.

Cultural Resource Management
and Historic Properties
Learning from the Errors of the United States
Thomas F. King
April 15, 2008

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

Some Thoughts on the ACHP's Cape Wind Comments

On April 2, the Advisory Council on Historic Preservation (ACHP) fulfilled its duty under Section 106 of the National Historic Preservation Act by rendering comments on the proposed Cape Wind Project in Nantucket Sound. Without plowing through the background of this controversial case, or getting into the ACHP’s authority to issue such comments, or into what the Secretary of the Interior (who has authority over the project via the Minerals Management Service [MMS]), I’d like to offer a few comments on the ACHP’s comment.

The first page of the seven-page comment succinctly and – as far as I can tell – accurately outlines the background of the case. The second page briefly discusses the historic properties involved – not only the Sound per se but the historic places that surround it on land, and rather elegantly sums up what’s involved as follows:

As evidenced by the Keeper’s determination, the written record, and the public testimony, Nantucket Sound has been for thousands of years and remains still an area of prime national, regional, and local importance because of its substantial economic, recreational, social, cultural, and traditional cultural benefits and attributes.

The comment then turns to the potential effects of the Cape Wind Project, which it summarizes as direct and indirect, unavoidable, and not subject to satisfactory mitigation. In general I find little to quibble with in this section of the comment, but there are a couple of peculiarities.

First, on page 3 the ACHP notes, with reference to a National Park Service study of the project’s impacts on two affected National Historic Landmarks (the Nantucket Historic District and the Kennedy Compound), that:

In its comments on the effects of the Project on the two NHLs, the National Park Service (NPS) concluded that the adverse effect of the undertaking would be indirect, because the adverse effects are visual only, limited in overall scope, and do not diminish the core significance of either NHL.

The ACHP does not analyze the NPS conclusion, but it seems wrongheaded to me. In what way is an effect indirect because it is “visual only” or of “limited scope?” Indirect impacts are defined in regulation as impacts that take place at a greater remove in time and space than direct effects do – a fuzzy definition, to be sure, but one that has nothing to do with whether an effect is visual as opposed to something else, or to its “scope.” One of the ACHP’s very first Section 106 comments, back in 1968 on the Easton Nuclear Plant, proposed for construction in the viewshed of Saratoga Battlefield, was entirely about visual impacts and made no bones about their being quite direct. The project was abandoned. As to the “core values” of the NHLs – well, this is the problem with things like NHLs. Whose “core values” is the analyst to be concerned about? The values of the Secretary of the Interior, who designates NHLs? The values of the professionals at NPS who prepare the oh-so-scholarly analyses upon which designations are based? Or perhaps the values of the people who look out at the world from the properties, or at the properties from elsewhere? I doubt if it’s the people, and if it’s only the Secretary and his or her employees, should impacts on such “core values,” or an alleged lack thereof, really be at the center of anyone’s analysis? The ACHP drops a hint on page 4, suggesting that it is concerned about this question:

The Project’s effects on this broad range of properties should not be viewed in isolation or labeled only as indirect or direct. Rather, because of their concentration and interrelation, they must also be considered together. In their totality, these effects are significant, adverse, and cannot be adequately mitigated.

The comment gives a fair amount of space to the project’s alleged potential impacts on submerged archaeological resources. I can’t help feeling that this is a bit of a red herring. Yes, there may be archaeological sites within the parts of the Sound that the project would physically disturb. Yes, these may be quite significant sites – whether they’re very early ancestral Wampanoag sites or traces of Viking visitors. But the evidence that such sites exist is pretty thin, and a case could be made that the public interest lies in revealing and studying them (if they exist) rather than leaving them alone. I can’t see that the potential for impact on such speculative resources deserves quite the attention it has gotten, in the ACHP comments and elsewhere. Focusing on this potential seems to me to get the discussion off track. The big impacts of Cape Wind – and the ones that are hard or impossible to mitigate – are visual, and in the case of the Wampanoag, spiritual.

The comment next – with remarkable straightforwardness – eviscerates the federal agencies responsible for overseeing the project. MMS has not carried out its stewardship responsibilities under the National Historic Preservation Act and Executive Order 13287. The Corps of Engineers initiated Section 106 review too late, and initially focused its attention only on already-designated historic properties, ignoring the tribes’ concerns about impacts on undesignated traditional cultural places (notably the Sound). MMS was slow to improve on the Corps’ shoddy performance, and its consultation with tribes was “tentative, inconsistent, and late.” The ACHP credits Secretary Salazar with getting the relevant issues “properly resolved,” but the ACHP is, I think, just being polite. The Secretary’s intervention has brought the Section 106 process to a conclusion that’s more or less consistent with the letter of the regulations, but nothing can correct the mistakes made early on by the Corps and MMS, and it’s a mystery to me how any final resolution based on fundamentally flawed early planning and rotten consultation can be called “proper.”

On page 5, the ACHP begins to offer its recommendations to the Secretary, commenting:

The development of renewable energy projects is not inherently incompatible with protection of historic resources, so long as full consideration is given to historic properties early in the identification of potential locations. The ACHP believes that wind energy production on the OCS in the vicinity of the current project area could proceed in a manner that would be consistent with protecting Nantucket Sound and the surrounding historic properties. It appears that the selection of nearby alternatives might result in far fewer adverse effects to historic properties, and holds the possibility that those effects could be acceptably minimized or mitigated.

This is certainly the heart of the matter, and it carries an important message for the wind energy industry – and the solar, nuclear, geothermal, and other ostensibly green energy industries. Just because you’re wearing white hats these days, don’t assume your projects have no potential for deleterious effects, or that you can or should ride roughshod over other public interests. Like any other industry, you need to look before you leap, consider alternatives, and consult with affected people, before you start investing megabucks in your particular pet project. If you do it right – if you really consider alternatives, really consult, really be considerate – you can probably get your project done. If you don’t, it’s a crapshoot at best.

The ACHP then gets specific. Interior needs to improve its tribal consultation procedures – something the Department is spending a good deal of time on at the moment, though I see little evidence that anyone is getting beyond mouthing the usual platitudes. The Interior-sponsored tribal consultations I have been involved in recently have not been encouraging. The ACHP also advises MMS to improve the way it integrates historic preservation into site selection and alternative analysis, and it offers a number of fairly concrete suggestions for joint actions by Interior and the ACHP itself (along with the Council on Environmental Quality and others) to improve the way impacts on historic properties are addressed in energy development planning. Two of these suggestions merit special attention, I think:

The ACHP and the NPS should develop guidance to assist federal agencies in determining and addressing the effects of energy projects, especially wind and solar projects, on historic properties that comprise large areas with indefinite boundaries. Particular attention should be given to properties of religious and cultural importance to tribes and cultural landscapes. This effort should draw on the experience of other nations in addressing this subject.

Having tried to supply such guidance for many years as a mere unwashed non-governmental consultant and book-writer, and having gotten used to being ignored, I welcome maybe getting some help from an official body -- and it's nice to see the ACHP recognize that other nations might have something to teach us. I fear, though, that it will be very, very hard for the vested interests in NPS at least to open their minds sufficiently to do much good, particularly since considering such “large areas with indefinite boundaries” challenges notions that are deeply embedded in the brains of many National Register employees.

The ACHP and the NPS should assist agencies and applicants by sharing information on innovative and cost-effective strategies and techniques to identify all types of historic properties potentially affected by energy projects, not just standing structures and archaeological sites.

Indeed – but this, too, is going to require some fundamental paradigm shifts, not only on the part of agencies like Interior but notably among the staffs of NPS, the ACHP, and particularly the State Historic Preservation Officers (SHPOs).

Unfortunately, the ACHP comment ends on a truly stupid note:

The Department should revive the proposal of the 2006 Preserve America Summit that was endorsed by the ACHP to develop a comprehensive and accessible national inventory of historic properties to assist in the identification of historic properties during the federal project planning process. Priority should be given to those areas under federal jurisdiction or control that have high potential for both traditional and alternative energy development.

Uhh…. guys, that was what people thought they were creating in 1966 when NHPA directed the Secretary to expand and maintain a National Register. It was a dumb idea then, and it obviously hasn’t worked – that’s why the Corps’ concentration on “designated” properties early in the review of Cape Wind was a mistake. There’s a fair amount of literature (not all of it created by me) bearing on why such an “inventory” is a silly idea, and particularly why some of the most sensitive kinds of properties – like Nantucket Sound – don’t and can’t be captured by such “inventory” efforts. Holding on to this ridiculous recommendation undercuts the intellectual integrity of an otherwise excellent comment.

PAndering

Under Section 106 of the National Historic Preservation Act and its regulations (specifically 36 CFR 800.14), a “Programmatic Agreement” or PA may be negotiated by a federal agency with a State or Tribal Historic Preservation Officer, group of such officers, or the National Conference of State Historic Preservation Officers (hereafter “SHPO” for short), the Advisory Council on Historic Preservation (ACHP) and (rarely) other parties to establish an “alternative” means of complying with the law – alternative, that is, to the standard process set forth in the regulations (36 CFR 800.3-6). PAs can be very useful tools for adjusting the regulatory process to allow for special needs and situations. They are inherently problematical, however, because they effectively replace the standard process, creating “special deals” for the agencies that execute them. This can make life difficult particularly for citizens who want to use Section 106 to protect something. Such a citizen naturally looks at the regulations for direction, but the relevant agency is doing something quite different; it’s following its PA – as it interprets it. The citizen is left floundering, having to understand not “just” the regulations, but whatever PA or PAs may apply to the project that’s of concern.

It’s also been my observation that when people start drafting a PA, one or both of two things tend to happen. They often fall into regurgitating the standard process, usually in badly masticated form, taking many pages of convoluted prose to say they’re going to do more or less the same thing they’d do if they didn’t have a PA. And they get wordy, blathering on for page after page, creating documents that are impenetrable to the ordinarily educated English-language reader. Oh yes, a third thing – they usually minimize any provision for public participation in review.

I’ve recently had occasion to review several PAs – one being negotiated in Guam and the Northern Marianas on redeployment of military forces, one in the same area covering transportation projects, a “prototype” PA developed by the ACHP for Department of Energy weatherization projects, and another by the Federal Highway Administration covering all highway projects in a western state. Each was about 20 to 30 pages long, single-spaced, 10 or 11 point font. I found that every one of them had the above problems, and moreover that they actually didn’t set out to do very much.

For the most part, all the PAs were about:

1. Delegating certain responsibilities from the federal agency to a recipient of agency assistance;
2. Excluding certain classes of action from standard forms of review;
3. How the agency and the SHPO would interact during project review, and
4. How archaeological sites would be identified.

Now, items 1 and 2 probably require a PA, but it doesn't have to be very complicated PA. For item 1 you just need to say: “Federal Agency X may delegate (or hereby delegates) responsibilities A, B, and C to recipient Z,” subject perhaps to specified conditions. For item 2 you list the action classes, rationalize their exclusion from standard review, and specify any review they WILL get.

Items 3 and 4 can in most cases be taken care of without doing a PA, as long as the agreeing parties don’t try to change anything in the regulations. Regarding item 3: if an agency and SHPO want to agree that they’ll exchange red, green, and purple formletters with 22-day turns-around, they can simply exchange memos to that effect and go to it – as long as they don’t thereby close out opportunities for other parties to have their say, or otherwise alter the overall requirements of the regulations. As for item 4, it’s up to the agency, in consultation with the SHPO and others, to decide what constitutes a “reasonable and good faith effort” to identify archaeological sites and all other kinds of historic properties; there’s no need to negotiate a PA.

So what’s wrong with doing a PA to accomplish these modest purposes, if you have nothing else to do and you’re a glutton for punishment? What’s wrong is that a PA is a nuclear weapon; when you touch one off, it has a lot of fallout. It effectively replaces the standard process – it makes it go away (unless you carefully specify that it doesn’t, and how it doesn’t, and I’ve never seen a PA do that). It forces anyone who wants to participate in Section 106 review to figure out whether the PA applies to his or her concerns, and if so how. This is particularly a problem for members of the public, who can’t be expected to master the eccentricities of even the standard process, let alone an esoteric alternative. And all these alternative processes ARE esoteric; in some places they more or less spit the regulations back at the reader, but sometimes with tweaks of various kinds; in other cases they add new twists to the standard process. And who WILL know how the alternative works? Well, maybe nobody, but if anyone does it will be the federal agency’s lawyers and “cultural resources” professionals, which makes them the experts, gives them the power to tell the interested public to screw off – assuming a member of the public sufficiently figures out the system to even ask a question.

So I contacted the ACHP, and asked if this concerned them at all, and if maybe they didn’t think it would be a good idea to suggest to agencies and SHPOs that they sort of cool it with the PAs – develop them only when they’re really needed, and keep them simple. I was assured that my views would be taken into consideration. No argument, no discourse, and to the extent any rationale was offered for accepting the PAs I was criticizing, it was simply that these are the kinds of agreements the ACHP routinely receives from agencies and SHPOs.

Oh.

We accept them – and indeed regurgitate them as prototypes – because we receive them, and God forbid we should consider offering any contrary advice (what, advice? From the Advisory Council?). If the agencies and SHPOs want to do it this way, baby, that’s the way it’s gotta be done, and that’s how we’re going to demonstrate our leadership in historic preservation.

The ACHP will soon have a new chairman (Thank goodness it doesn’t take Senate confirmation). One might hope that the new chair would promote some responsibility, but it’s unlikely. The ACHP’s leadership has been disenthralled with Section 106 review since its original executive director retired over twenty years ago, and it’s unlikely that anyone appointed as chairman will even recognize that the system has problems, let alone do anything to fix them. There are many things to do that give more excuse for puffing out one’s chest, like giving out “Preserve America” grants. So the ACHP, I suspect, will remain aloof, while the SHPOs and agencies earnestly go on negotiating massive agreements that focus greater and greater attention on less and less, and deprive members of the public of the opportunity to get attention paid to places they hold dear. Eventually the whole edifice will collapse, but alas, I don’t expect to live to see it.

California Shoots for the Moon

Faced with budget constraints that are forcing the imposition of furlough days and weeks on Office of Historic Preservation staff, and facing a surge of Recovery Act projects requiring Section 106 review, California’s Historic Resources Commission has taken bold action. On January 29 it added Tranquility Base to the state’s Register of Historic Resources.

That’s right, Tranquility Base, on the Moon, where on July 20 1969 Neil Armstrong uttered the famous words: “Houston, Tranquility Base here. The Eagle has landed.”

According to the Associated Press, quoting California State Historic Preservation Officer Wayne Donaldson, the Commission’s action is part of a five-state effort to promote designation of the site as a National Historic Landmark (NHL) under the Historic Sites Act of 1935. The other states involved, according to the AP, are Florida, Alabama, New Mexico and Texas. NHL designation is a National Park Service (NPS) responsibility.

Even if one doesn’t consider it a little hubristic for a state to extend its system of historic place designation to another heavenly body, even if one doesn’t think (as I, perhaps a minority of one, do) that historic place designation systems are inherently outmoded and counterproductive, even if one doesn’t think that Mr. Donaldson and his people might really be well advised to tend to the state’s business instead of launching outer space adventures, the move to designate Tranquility Base an NHL is ill-considered. I very much hope that other states – even California’s alleged co-conspirators – will think long and hard before supporting it.

Let’s stipulate that Tranquility Base is a highly significant place in the history of humankind’s exploration of space. Let’s stipulate that, as Mr. Donaldson is quoted as saying in justification of his commission’s action, it may eventually be threatened by thoughtless space tourists. Let’s stipulate that the public, that posterity, that life forms near and far would be well served by somehow protecting the site from such desecration. None of this makes NHL designation sensible or responsible.

Designation is the knee-jerk preservationist response to the intersection of historic significance and potential for change. The place is threatened? Put it on a list! Influenced by the long history of European landmark scheduling and local historic district ordinances, preservationists assume that if you put the place on a list it will be protected. Never mind that there’s no lunar historic district commission to impose design standards on touristic ventures in the Sea of Tranquility; it must be that making Tranquility Base an NHL will protect it from those rampaging space tourists, right?

Wrong, of course. Under Section 110(f) of the National Historic Preservation Act (NHPA), NHL designation would require U.S. government agencies to consider the effects of their actions on the site. But no one seems to expect the Corps of Engineers to initiate watershed improvements around the Sea of Tranquility; it’s unregulated space tourism that Mr. Donaldson and his colleagues fear. NHL designation won’t control that.

So why push designation? There actually is a reason, of sorts. In the U.S. system for proposing places for inclusion in the World Heritage List – a list of places ostensibly having international significance as natural or cultural resources, maintained by a sub-body of UNESCO – NHL designation is a necessary first step. The NPS authors of the rules for World Heritage List nominations in the U.S. sensibly assumed that if we weren’t willing to recognize a place as being significant enough to be an NHL, we ought not propose it for the international list. Placement on the World Heritage List would obligate nations party to the World Heritage Convention to give Tranquility Base some degree of consideration in their actions, presumably including whatever regulatory scheme a nation, a group of nations, or the international community might impose on space tourism. So World Heritage List designation makes a degree of sense, and if the U.S. wants to propose such a thing, via its existing designation system, NHL designation is a necessary step.

But that’s a big “if.” World Heritage listing isn’t necessarily the only or most straightforward way to achieve protection for something like Tranquility Base – which is, after all, hardly more a part of the world than it is a part of the U.S. or the state of California. And NHL designation generates some risks that at last report the Department of State – very sensibly, I think – did not favor incurring.

The 1967 Outer Space Treaty – technically the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,” to which the U.S. is a party, specifies at Article II that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” In other words, neither the U.S. nor any other country can stake a claim to the moon or any part thereof. While we “cultural resource experts” in the U.S. know that designating something an NHL or putting it on the National Register does not constitute an “appropriation” by the U.S. government, this understanding is not very widely shared. If it were, we wouldn’t see private property owners getting as exercised as they sometimes do over proposals to list their houses, farms, fields and factories on the Register. We certainly cannot expect the other nations of the world, a few of which tend to look at U.S. intentions with a jaundiced eye, to recognize designation as a benign, non-political act. Accordingly, the last time I inquired into the matter the Department of State was dead set against giving Tranquility Base NHL status.

So what are California and its co-conspirators trying to do? Pressure the Secretary of the Interior into thumbing his nose at the Secretary of State? Create an international incident? Or are they just having fun? I don’t know, but I suspect they haven’t really thought the matter through very thoroughly.

Suppose, though, that they somehow succeed in their enterprise (sic), and get Tranquility Base registered as an NHL – perhaps even placed on the World Heritage List. What then do we do about the landing sites of Apollo 12, Apollo 14, and the others? What about the landers and rovers on Mars? What about the Voyager spacecraft when they circumnavigate the cosmos and come home? There is in fact an active and growing group of academic enthusiasts promoting the preservation of such sites and objects, and well there should be; they are undeniably historic. But are they all going to become NHLs, or be listed in the equivalent schedules of other nations, and/or be entered in the World Heritage List? Are we going to go through bureaucratic processes over each one, and replay the tired old arguments about how many of this and that kind of thing “belong” on the list? Will we invest money in preparing interplanetary historic context studies?

If the supporters of protection for off-planet historic places are serious, I suggest that the time and treasure they’re spending pushing for NHL designation would be better invested in an effort – perhaps through UNESCO, ICOMOS, and/or other international cultural bodies – to get the spacefaring nations to agree to a simple principle: that the physical evidence of the history of space exploration should be respected in the ongoing exploration, settlement, and use of outer space. Have a UNESCO convention on the subject, establish processes by which impacts on such evidence will be considered in planning future space ventures, including tourism – whether this evidence is found in a specific place like Tranquility Base or scattered around like the vehicles lost on entry into the Martian atmosphere, and whether they’re things we know about now or unexpected discoveries like big black slabs that hum. Cut to the chase, address the real issue, and do it in the proper international venue. Don’t waste time and tax dollars trying to warp (sic) state and federal historic property designation processes (silly enough when applied to earthly places) to serve purposes for which they were never intended.

The National Register of Historic Places: Being Eligible for it; Being Determined Eligible for it; Being Nominated to it

Thanks to the determination by the Keeper of the National Register of Historic Places that Nantucket Sound is eligible for the Register, I’ve spent some time today on the phone with reporters, and in email correspondence with colleagues, who are confused about some very basic points. At the risk of re-plowing what ought to be well-turned earth, let me try to clarify the differences among three terms that keep getting mixed up.

Eligibility for inclusion in the National Register. This means that a place or thing meets the criteria of eligibility published at 36 CFR 60.4. It is a factual category into which a place falls, like being a species of animal or a wet place in the woods. Places are eligible if they meet the criteria, regardless of whether anybody has ever recognized that they do. Nantucket Sound is eligible for the Register; it has been eligible for the Register for as long as the Wampanoag Tribes have ascribed cultural significance to it, because this ascription of significance means it's associated with significant patterns of history, and thus eligible under National Register Criterion “A.” It did not become eligible when it was determined to be so, any more than a species is hale and hearty until the Fish and Wildlife Service determines it to be endangered, or any more than a swamp is dry until the Corps of Engineers delineates it as a wetland.

Determined eligible for inclusion in the National Register. This means, obviously, that someone has given a place some attention and said “yup, it meets the National Register criteria.” Some like to reserve the term for instances in which the Keeper of the Register has made a formal determination, as has just happened with Nantucket Sound; others use the term more loosely to embrace the less formal determinations made by federal agencies and State or Tribal Historic Preservation Officers in the course of Section 106 reviews. Whichever way it’s used, it means that someone has actually determined, decided, concluded, that the National Register criteria are met by a place or a bunch of places, usually based on some body of data and analysis, though there is no hard and fast rule for how much of either is needed.

Nomination to the National Register. This is what happens when someone fills out all the paperwork that the National Register requires before it will consider actually listing something on the Register, and submits it for review, usually through a State or Tribal Historic Preservation Officer to the National Park Service. There is no requirement in law that anybody nominate anything to the National Register. Nantucket Sound has not been nominated, and I for one hope it won’t be; it would be a waste of time and effort.

Section 106 of the National Historic Preservation Act requires that federal agencies take into account the effects of their proposed actions on places included in (i.e. listed in) or eligible for the National Register. Not “determined eligible” for the Register, and not “nominated to” the Register, but simply eligible for the Register. In other words, an agency is responsible for considering impacts not only on places that someone has nominated, or that someone has determined eligible, but also on places that simply meet the criteria. The regulatory requirement to make a “reasonable and good faith effort” to identify eligible properties that may be subject to effect is the logical result of the statutory requirement to consider effects on eligible properties. Agencies – not tribes, states, or citizens – are responsible for making this effort, so that they, the agencies, can do what Congress told them to do: take effects into account. In the Nantucket Sound case, the Minerals Management Service failed in this responsibility by failing to listen to what the Wampanoag Tribes had to say about the Sound’s significance and appreciate that this significance probably made the place eligible for the Register. Nantucket Sound did not become eligible when the Keeper determined it so; it was eligible all along, and the Minerals Management Service should have had sense enough to realize that. It didn't, and that's why the issue has to be confronted now.