Being an Expert Witness -- Addenda

A couple of addenda to yesterday’s post on this subject:

1.       I’m not fishing for work – just trying to make sure people who may find use for my help are aware it’s available.

2.       If you’re going to ask for my help on a case, please consider doing so EARLIER rather than LATER.  It’s understandable that people often contact me only when they find themselves in trouble, with things going very much against them, but by that time it’s often too late for me to be of much help.  Too many decisions have been made, too many assumptions have gone unchallenged.

Example: a couple of years ago I was contacted by landowners in a western state who were trying to fight the expansion of a federal facility; they felt – with good reason – that it would drastically alter the character of the land on which for generations they had lived and ranched.  The “responsible” federal agency, predictably, had equated “cultural resources” in its NEPA and NHPA studies with “archaeological sites” and “old buildings.”  The obvious point of attack was to advance the premise that the potentially affected lands were eligible for the National Register as landscapes that comprised traditional cultural properties (TCPs).  A good argument could have been made for this premise, potentially forcing the federal agency into face-to-face consultation with the landowners (which, of course, the agency really didn’t want to do).  But by the time they contacted me, the landowners had long since gotten sucked into nit-picky arguments about the archaeological techniques used to identify sites, and the architectural character of particular buildings; in other words, they had accepted the premises upon which the agency’s faulty compliance with NEPA and NHPA was built.  That’s what they’d written about in their comments on NEPA documents and on a proposed NHPA Section 106 memorandum of agreement, and it was really too late to raise the whole “new” issue of TCP landscapes.

In another case, I was asked to help get an agency to do a better job of handling the discovery of a tribal ancestral burial site during construction of a project.  But the project was being carried out under a strange sort of agreement in which the tribe had concurred, that essentially substituted “monitoring” during construction for proper compliance with NEPA and NHPA.  I had to tell them that they’d shot themselves in the foot, and I couldn’t do anything about the wound.

So please, if you think you may need my help, contact me early, when I can be most helpful.

Being an Expert Witness

I’ve been reviewing a recent court case in which the U.S. government prevailed and was allowed to screw up a tribal traditional cultural landscape.  It’s discouraging and frustrating.  It appears that the tribe’s attorneys shot down their own case by failing to challenge a lot of the government’s assertions about what constitutes adequate historic property identification and evaluation under the National Historic Preservation Act (NHPA) – assertions that I know very well were open to challenges that the attorneys apparently lacked the experience and knowledge.

My frustration leads me to think that I ought to take this opportunity to remind readers – without meaning to be spammy – that I’m available as an expert witness to anyone who may be thinking of bringing a case against the government based on NHPA Section 106 and impacts on traditional cultural places.  I’ve performed such services off and on over the last four decades or so, generally to good effect.  I think I can be helpful in critiquing agency compliance with Section 106 and other laws (e.g. the National Environmental Policy Act), particularly where traditional cultural properties, tribal interests, historic property identification standards, and consultation practices are involved.

Naturally I do like to get paid for expert witness work, but I’ve done a lot of it for free and am willing to do more; a client just gets my more undivided attention if they pay for it.  When I am engaged for pay, I try to keep my rates low, especially for indigenous groups, local communities and organizations, environmental groups, and private citizens.

Having spent most of my professional life trying to make sure that tribal and community cultural concerns are effectively addressed under the environmental and historic preservation laws, I’m appalled at what’s happened to practice under those laws in the last decade or so.  If I can be of any help to plaintiffs trying to promote more responsibility and responsiveness on the part of the federal government, I’d be happy to try.  Contact me at tfking106@aol.com.

Swish, Swish, Whoosh, Whoosh! "Streamlining" Environmental Project Review

“Streamlining” seems to be what everybody wants to do these days, at least when it comes to environmental impact assessment (EIA) and project review under laws like Section 102(c) of the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA).  Every agency of federal and state government, it seems, is earnestly working on (or at least generating gas about) ways to “streamline” such review, and consulting firms are busy assuring potential clients that they can accomplish such “streamlining” if only they’re paid enough. 

No one seems to question the premise that “streamlining” EIA is a good thing to do – despite the fact that innumerable EIA scholars and courts of law have identified laws like NEPA and NHPA as “stop, look, and listen” laws.  Their purpose is to consider what we’re planning to do before becoming committed to it, to stop long enough to look around at impacts and alternatives, to listen to what people think and say about our plans, and – implicitly at least – to try to do something in response to what we see and hear.  Is “streamlining” such activities necessarily a good idea?  The last time I recall “streamlining” the process of stopping, looking and listening in my daily life, I got my foot run over by a taxi.

I’ve just received a “request for quotes”  (RFQ) from the Nevada Department of Transportation that represents one of the more idiotic examples I’ve seen lately of “streamlining” rhetoric.  It begins:

The Nevada Department of Transportation, Administrative Services Division is requesting quotes for The “Everyday Counts” (EDC) program requires the streamlining of processes that expedite transportation initiatives.

Let’s ignore the run-on sentences and give them the benefit of the doubt; apparently the Department has something called the EDC program, and they’re not really soliciting quotes for that program but for an activity that’s supposed to advance its purpose – which is to “expedite transportation initiatives."  In English that probably mostly means “build and improve highways.”

The request goes on:

Streamlining the Native American consultation for the National Historic Preservation Act, as amended, will provide a set of agreed upon steps for consultation and Section 106 will result in quicker obligation of funds for projects.

It’s great that they got that “as amended” in there; it really makes them look like they know what they’re talking about.  The main import of the sentence, however, lies in its last clause, which reveals the underlying rationale for "streamlining" -- to obligate funds more quickly than -- well, presumably more quickly than they're obligated now, which someone must think isn't quick enough.

There follows a bit of boilerplate requiring contractors to have a million bucks worth of liability insurance, have workers compensation insurance (regardless of whether they’re employing any workers in Nevada) and a state business license.  Then there’s a statement of work (SOW).  After reiterating the stuff about the EDC and streamlining, the SOW (sort of) specifies what the Department is after:

A tribal workshop to jumpstart Native American Consultation (NAC) Programmatic Agreements (PA) with Federal Highways Administration (FHWA), the Nevada Department of Transportation (NDOT) and the Nevada Tribes is the best first step.

Ah!  So they’re seeking help in organizing and running a workshop, the purpose of which will be to “jumpstart” (another popular buzz-word) consultation toward a programmatic agreement (PA) – presumably the kind of PA authorized by 36 CFR § 800.14(c) of the NHPA Section 106 regulations.  We are not told who has decided that such a workshop, or such a PA, comprise the “best first step” or why this is thought to be the case.  We are next told that: 

This workshop would encourage development of either one PA for all of the Tribes or individual PAs for each tribe by holding a two-day workshop headed by an outside Native American Consultant/Facilitator.  

Never mind the infelicitous “This workshop will hold a workshop” language; it appears that what they want is a 2-day workshop to “encourage” (who?) to develop either a single PA or multiple PAs, which will specify – er – something that (presumably) will expedite consultation.

Note that nobody has said that there are problems with consultation as it’s currently carried out; it’s just assumed to need “streamlining,” and this workshop is supposed to somehow make it happen.

Note too that the workshop is supposed to be headed by an “outside Native American Consultant/Facilitator.”  Why “outside?”  Can no one in Nevada do this kind of thing?  And if the C/F is supposed to be a “Native American,” why did they send the solicitation to me?  I’m not Native American.  To judge from some of the subsequent paragraphs it appears that they don't really want a Native American; they just want someone who's had some experience with Native Americans.  Johnny Depp, maybe.

The SOW says that:

FHWA-NV and NDOT are in process of developing a National Historic Preservation Act Section 106 PA with the State Historic Preservation Office and other Federal Agencies.

Negotiating such PAs is a popular way for federal and state historic preservation officials to spend time and justify their salaries.  In my experience they seldom accomplish anything other than to befuddle anyone outside the closed circle of government who wants to participate in project review.  I suppose that is a worthwhile accomplishment from the government’s point of view.

So they’re negotiating a PA with the SHPO and “other federal agencies” (but not, apparently, with tribes, local governments, property owners, or plain old taxpayers), so:

As a follow up to that document, FHWA-DC and FHWA-NV would like to pursue a NAC PA(s) with willing tribes in Nevada. To begin this for the first time in Nevada, a facilitator with Native American consulting experience would help all of the invited parties to bridge early difficulties and move the documents forward to a rough draft stage.

Well, that might be true, but before contracting for such facilitation, wouldn’t it be a nice idea to find out whether any of the tribes think such a PA is needed or appropriate?  What if the Department and its consultant throw this party and nobody comes?

The next section of the SOW is titled “Why Nevada is ready for this,” and says:

1) Progress on the Section 106 PA has stated that Tribal lands in that document will not be covered. The NAC PA(s) would move to do that. 2) Standardizing NAC would help promote better relations and communications with all parties involved while also increasing the likelihood that NAC will get done in a timely manner.

One might quibble that a state whose officials are unable to construct an English language sentence may not be the most ready to undertake the creation of responsible consultation systems; one might also note that it’s the NHPA Section 106 regulations, not “progress on the … PA” that highlights the obvious fact that the SHPO can’t negotiate a PA about what happens on tribal lands.  But never mind; it’s not implausible that some sort of standardized consultation would improve at least the timeliness of consultation.  So maybe there’s some utility in the proposed enterprise.

But the threshold question is not whether Nevada is “ready” for a PA with tribes, but whether Nevada is authorized to negotiate such a PA on behalf of the Federal Highway Administration.  It is the federal government, not state governments, that is responsible in law for government-to-government consultation with tribes.  Has FHWA found a legal way to delegate this responsibility to the State of Nevada?  If so, what is it?  If not, why should any tribal government give the Nevada DOT the time of day?  The Department seems simply to assume that it has the authority to negotiate a PA, and that the tribes will jump to attention when they’re invited to consult.

If I were considering offering a proposal in response to this solicitation (I’m not), I’d certainly want answers to these questions, and I’d want to know how the Department is consulting with tribes now.  What’s done, how’s it working?  What are the problems that motivate the move toward a PA?  What needs “streamlining?”  My strong suspicion is that nobody knows; it’s just assumed that “streamlining” is a good idea.

This brings us back to the title of the program to which the RFQ refers: “Everyday Counts.” 

What does this mean?  Does it refer to the counts the Department must make on an everyday basis, of traffic volumes and such?  I doubt it.  Does it relate to members of the European nobility hiding out in the Reno suburbs?  Probably not.  Indeed, the RFQ’s use of the acronym “EDC” suggests that the actual program title is “Every Day Counts.”

Which conveys an air of urgency.  Every day counts; we must get on with our work, not waste time.  An admirable attitude for public servants to have unless it leads them into thoughtless, ill-considered decision making.  That’s a big “unless,” and it’s what’s troubling about government’s fixation on “streamlining.”  Certainly we shouldn’t waste time; certainly we shouldn’t engage in pointless proceduralism; certainly we should try to be efficient and use our time wisely.  But I’m afraid that many in government have come to believe that project review under NEPA and NHPA is pointless proceduralism and nothing else, which by its very nature ought to be “streamlined” – out of existence, if possible.  “Stop?  Look?  Listen?”  Hell, we know what we need to do; let’s get it done!  Every day counts!

It makes my foot hurt.

 

Doing Away With “State Protocols” by the US Bureau of Land Management and State Historic Preservation Officers

For some years (far too many, in my opinion), the U.S. Bureau of Land Management (BLM) has carried out what it represents as compliance with Section 106 of the National Historic Preservation Act (NHPA) under a “nationwide programmatic agreement” (NPA) with the Advisory Council on Historic Preservation (ACHP) and the National Conference of State Historic Preservation Officers – the latter representing all 59 State Historic Preservation Officers (SHPOs).  Under the NPA, BLM executes “state protocols” with each SHPO.  These ostensibly lay out how BLM and the SHPO will interact during BLM’s compliance with Section 106 (sic: the NPA), but they inevitably go farther, in fact structuring how BLM approaches such matters as public involvement, tribal consultation, historic property identification, effect determination, and resolving adverse effects on historic properties.

I recently received a draft revised protocol negotiated by BLM and the California SHPO; although ostensibly provided to consulting parties for review, it was a very complete document, some 75 single-spaced pages long, all worked out between BLM and SHPO staff without any evidence that public views were solicited or considered. 

I commented:

Having given the proposed "new" protocol a sufficient (I think) review, I just want to suggest to all concerned that it is absurd. In an attempt to "streamline" the relatively straightforward processes laid out in the NHPA Section 106 regulations, BLM has generated a massive document made up mostly of meaningless abstractions and promises to do right, combined with references to still other documents. If BLM were designing a mechanism specifically to confuse readers and minimize the potential for anyone to participate in its decision-making, it could hardly do better than to issue this protocol.

BLM adds insult to injury by sharing the thing for review by interested parties only after it is complete in "draft" form. This is not consultation; it is at best an opportunity to comment on decisions already made.

Moreover, the draft shows no evidence I can see of the slightest attention to correcting the problems that tribes and others (myself included) have pointed out with the existing protocol. Specifically, the stuff on identification of historic properties remains deeply archaeo-biased, essentially taking the position that what BLM must identify and address are those phenomena that archaeologists can see and appreciate -- never mind places like landscapes important to tribes and local residents or the habitats of culturally and historically important animals and plants. Moreover, it continues to offer the easy out of "avoidance" -- if a project is designed to "avoid" being plopped down right on something that an archaeologist has identified, then no further review is necessary. Thus BLM not only ignores project impacts on historic places that don't happen to be places appreciated by archaeologists, but also ignores visual, auditory, olfactory, and other not-directly-physical impacts even on archaeological sites. These issues have been raised repeatedly in comments on environmental documents prepared for BLM by the proponents of projects like Genesis Solar and Ocotillo Wind, but BLM continues to stumble along giving them no attention at all. Despite a promise to address indirect and cumulative effects, this "find the arch sites and avoid them" approach ignores these effects as well.

This idiotic, irresponsible document ought to be rejected out of hand by all concerned. If BLM has trouble complying with the 106 regulations (as it apparently does, but might not if it actually tried to do so), then there may be ways to establish better ways for it to do business, but this sad exercise in decanting rancid old wine into a recycled bottle is not helpful.

To which BLM’s California State Archaeologist replied:

If you could get Congress to overhaul the whole NHPA and section 106, I wouldn't argue with you but, alas, I have to work with what I have.

To which I replied:

 If I'm understanding you, you're saying that NHPA and "section 106," by which I presume you mean the 36 CFR 800 regulations, make you do what you're doing with the protocol -- that you'd consider doing things differently if those legal authorities only let you do so. If that's what you're saying, please direct me to the parts of NHPA or the regulations that require you to do things like (but not limited to):

1.    Substituting a vaguely worded 75-page protocol, worked out bilaterally with the SHPO, for the multi-party consultative process set forth in the Section 106 regulations;

2.    Focusing on archaeological survey as your means of identifying historic properties, thus giving short shrift (at best) to cultural landscapes, the habitats of culturally important plants and animals, and other historic places that archaeologists are ill-equipped to identify;

3.    Relying on physical "avoidance" of archaeological sites as your means of impact mitigation, thus ignoring (again) historic places that are not archaeological sites AND ignoring impacts that are not directly physical AND ignoring indirect and cumulative effects; and

4.    Substituting providing time-limited opportunities to comment on documents for actually consulting people about their historic preservation-related concerns.

I've worked with NHPA and the regulations for something over 45 years, and I've never encountered the provisions that require you to operate in the above ways, so please, can you point them out to me?

If the above is NOT what you're saying, please advise me about what you ARE saying.

I’ve not received a response, and don’t much expect one – at least not a meaningful one.  Not because the State Archaeologist is stupid, or trying to avoid thinking (though either or both may be true), but because I think that she – in common with a lot of others in agencies, SHPO offices, and even at the Advisory Council on Historic Preservation (ACHP) take it for granted that NHPA, or the regulations, or some other writ-on-stone direction, actually does equate Section 106 review with getting SHPO comments on the identification and avoidance of physical impact on archaeological sites (or in relatively urban contexts, old buildings). 

 

So – acknowledging that nobody’s asked me, here’s what I think BLM actually ought to do:

 

1.    Void the NPA.  Transform those (possibly useful) elements of it that deal with internal BLM organization into elements of the agency historic preservation program required by Section 110(a)(2) of NHPA.

2.    Void all State Protocols.

3.    Replace them – if necessary – with simple agreements specifying how BLM will communicate and coordinate with the SHPO when complying with 36 CFR §§ 800.3(c), 800.3(e), 800.3(f), 800.4, 800.5, and 800.6 and with Sections 110(a), 110(b), 110(d), 110(f), 110(k), and 111 of NHPA.

a.    These agreements should be carefully crafted so as to avoid restricting or obscuring BLM’s responsibilities for tribal consultation, consultation with other interested parties, and effectively involving the public. 

b.    Such agreements could, I believe, eliminate SHPO review of specified BLM documents altogether (saving time and expense for all concerned), provided agreed-upon standards were met.  Such standards should emphasize the identification and resolution of direct and indirect impacts of all kinds, as well as a project’s contributions to cumulative impacts, on all types of historic properties, notably including cultural landscapes and other traditional cultural properties, in consultation with tribes and other interested parties.

c.    Such agreements could also clarify how Section 106 review, or at least the SHPO’s participation in it, would be coordinated with review under Section 102(c) of the National Environmental Policy Act (NEPA).

Such agreements ought actually serve to “streamline” Section 106 review (a popular goal toward which BLM seems counterintuitively to think it can advance by issuing 75-page compilations of platitudes) and could, if carefully crafted and implemented, preserve the rights of American citizens to participate in BLM’s piece of federal decision making.

Goodenough's Canoe

With deep regret but much admiration for a life well lived, I'm noting the passing on June 9 of Ward H. Goodenough, Professor Emeritus in Anthropology at the University of Pennsylvania -- a distinguished cultural anthropologist and linguist, one of the founders of an explicitly applied anthropology, a not-inconsiderable poet, and an all-around good person.  I'm grateful to Dr. Mac Marshall for passing along the sad news. 

My wife, Pat Parker, was privileged to have Ward as her dissertation advisor, PhD committee chair, colleague, and friend. When it became apparent that a stumblebum archaeologist from California kind of came along as part of the package, Ward welcomed me to his world, and when I followed Pat to work in Chuuk -- one of Ward's ethnographic stomping grounds -- we had some very fruitful (to me) correspondence about Chuukese traditional history and the teachings of itang. I've also often reflected on his service to the U.S. government during World War II, preparing the ethnographic information that enabled naval officers like my father to avoid (sometimes) acting like complete idiots in administering the Micronesian islands wrested from the Japanese. When the profession has stood rigidly against participating in military and intelligence operations, however tempted I've been to join its ranks, I've always remembered Ward and his colleagues, and the contributions they made to ameliorating the effects of war on the people of Micronesia. Ward's relationships with the government have reminded me that these things are seldom if ever black and white.

Ward lived to age 94; for the last few years we've heard from him only around the holidays, and have always been grateful to learn that he was alive. Now he isn't. Or maybe, as they say in Kiribati when a light shower goes over as someone passes, he's caught his canoe.  I hope so.

Where Is That Park?

I’m grateful to my son Tom for showing me the location of Gezi Park, whose impending destruction has touched off the demonstrations in Turkey.  We had both spent time as tourists in Taksim Square, where the demonstrations are centered, and couldn’t recall a wooded park, but Tom had the wit to look it up on Google Earth.  As he showed me, the reason we hadn’t seen the park is that it’s tucked away to the north of the main bus queuing area.  “It’s their own place,” he commented; “the tourists don’t go there.”  He also pointed out that there’s very little sign of green space elsewhere in the Beyoğlu district.

Image courtesy Google Earth

 

There’s what seems to be a good and quite recently updated piece on the park on Wikipedia – see http://en.wikipedia.org/wiki/Taksim_Gezi_Park -- and also a discussion of the project designed to destroy it -- http://en.wikipedia.org/wiki/Taksim_Military_Barracks.  The proposal, we’re told, is to use the site to build a replica of the long-ago (1940) demolished Taksim Military Barracks, which will be used as a shopping mall. 

Wikipedia tells us that the project was approved in 2011 by the Beyoğlu Municipality’s assembly, so perhaps it’s not entirely an example of heavy-handed government running over local interests.  On the other hand, the article goes on to say that “although the area falls within the purview of green space protection ordinances, development interests are exploiting statutes protecting historic structures in order to trump those protections.”  It also notes that “as of the time of the decision, no surviving portion of the barracks exist on site.”

So if Wikipedia is to be believed, at the base of the protests in Turkey we see historic preservation laws being twisted to justify building a more or less hypothetical model of an Ottoman-era barracks for use by commercial interests, replacing a park that’s been used for the last 70 years or so by local people as one of their few available bits of green space.  If this is true, Istanbul’s historic preservation authorities ought to seek new employment.

He Should Have Consulted the People

"I like the Prime Minister a lot, but anyone can make mistakes. He should have consulted the people."

         (Supporter of Turkish Prime Minister Recep Erdoğan, on BBC News 3rd June 2013)

It’s such a simple concept, and so easily forgotten by those in power. Before you decide to do something like bulldoze the only substantial park in the Beyoğlu district of Istanbul to put in a shopping mall and ersatz Ottoman oddity, talk with people about it! Explain why you want to do it, make your case. Hear their views, and honestly consider the alternatives they propose. Have a conversation.  See if agreement can be reached, and if it can, reach it, memorialize it, and do what you’ve agreed to. If agreement can’t be reached, then maybe go ahead with your plans, but only after explaining why you’re doing so, including why it’s in the public interest to do so.

Simple, and a wise thing to do, however big your electoral majority.  But Erdoğan’s in excellent company.  Besides the likes of Bashir al-Assad and the Commuplutocrats of contemporary China, here in the U.S. every agency of government eschews real consultation, albeit giving it regular lip service.  But what’s happening in Turkey shows that the chickens of consultation eschewed can come home to roost.

How to Bulldoze a Traditional Cultural Property: Turkey Shows the Way

For an example of a less-than optimal way to handle treatment of a traditional cultural property, see http://www.huffingtonpost.com/2013/05/31/occupygezi-protests-istanbul-taksim_n_3366583.html?utm_hp_ref=world .  It's sad to see a nation as sophisticated as Turkey dealing with its special places, and its people, this way -- but we in the U.S. are hardly qualified to criticize.

Address Change, and Pity for the Postal Service

First an announcement:  my snail mail address has changed.  If you have me on a list, strike PO Box 14515, Silver Spring MD 20911, and replace it with my home office address: 410 Windsor Street, Silver Spring MD 20910.

The reason for this change is that the US Postal Service is (today) closing my convenient local post office, and if I want a box it's going to be a 2-mile walk away, rather than a 1-mile walk along my usual route of march to and from the Washington Metro; it's not worth it.

Several people to whom I've sent this notice have emailed me to sympathize and excoriate the Postal Service.  I disagree.  Sure, it's inconvenient for me not to have a handy PO box, but on the other hand, I now have the convenience of doing almost all my correspondence, bill-paying, and invoicing on-line, and the fact that millions of us are doing so is among the factors that makes it cost-ineffective to keep so many post offices open.  I feel a good deal of sympathy for the Postal Service, but I fear that it -- like typewriters and stick-shifts and cuneiform tablets -- has simply had its day and will become history.

That "Tribal Relationships" Conference at Harvard

A week or so ago, there was a posting on Facebook about an upcoming conference on building tribal relationships, to be held at Harvard University and involving TransCanada, the outfit that’s behind the Keystone XL Pipeline.  The posting noted that no tribes had been invited to the conference.
 

I reposted the item, saying it looked like business as usual.
 

Today I got an email from Lou Thompson, Manager of Tribal Relations for TransCanada.  He said:
 

I noticed on Facebook that you had some concerns about the Think Tank at Harvard. Having worked in Indian Country for 2 decades I can fully appreciate your concern and passion for native people. I am aware of some of your work and admire your contributions. As a point of clarification here is an excerpt from the letter that Harvard sent me:
 

In the case at hand, the upcoming Forum will bring together 25 selectively invited individuals representing the Harvard research team, federal policymakers, senior managers and decision makers from relevant sectors including finance, construction, land and property development, resource extraction, law, and policy. The May Forum will be followed this summer by a separate Forum for tribal leaders and policy makers, with the overall process leading to revision and release of the final White Paper as a useable source of practical approaches for all “sides of the table”.
 

So as you can see, cultural resources are certainly not the main focus of this forum. As you can also see, there will be a separate forum for tribal leaders. My invitation stems from the fact that they were searching for a company that has current substantial collaboration with tribes. For me this is an opportunity to learn how to better work in harmony with tribes not to present myself as a subject matter expert. I would enjoy meeting you sometime to discuss all of your efforts in working in Indian country. Please feel free to contact me should you ever have concerns about TransCanada’s approach to cultural resource identification and protection.
 

So, Lou, we’re to understand that Harvard cooked up this conference all on its own, and invited TransCanada?  That TransCanada had nothing to do with setting it up and organizing and funding it?  Just got an invite in the mail and said “Oh, that seems like a nice idea?”  Honestly, give me a break.

And what does it matter whether “cultural resources” are the session’s focus?  Do you think that’s all tribes are concerned about?  If so, your twenty years in Indian Country haven't taught you much.  Do you think it's all I'm concerned about?  That's more understandable, but it's jumping to a large conclusion that I find rather insulting.

That said, I’m not personally offended (though many tribes understandably are) by the idea of holding a conference on tribal relations without tribal participation.  When I’ve taught classes on tribal consultation I’ve often been most comfortable when tribes aren’t represented, because I can get down to brass tacks with the company and agency representatives.  I can acknowledge that what a tribe or tribal elder says may seem crazy to a white guy, that tribal governments aren’t necessarily paragons of virtue, and that even Indians can lie.  Having thus broken the ice – much harder to do with tribal people in the room – I can try to get a discussion going on the practical implications of treating a tribe like its members are nuts, ill-governed, or crooks, or conversely of choking down one’s suspicions and treating the tribe with respect.  I’ve found this to be a fruitful pedagogical strategy, and maybe that’s what Harvard and TransCanada are up to in this case.

Maybe.  But even giving them this benefit of the doubt, how naïve does the University or company have to be to think it makes sense to put on a confab like this at the very time the president is (ostensibly) pondering whether to let the pipeline go forward, when the EIS on the project is being held up as a classic example of crooked science and Obama administration hypocrisy, and when Idle No More and other groups are demonstrating at every opportunity?  And what kind of naïf are you to suggest that it’s OK because it’s not about “cultural resources” and because unspecified “tribal leaders and policy makers” will be invited in at some later date?  If I were considering an investment in TransCanada or sending a grandchild to Harvard (I’m considering neither), I would not be encouraged by this example of either entity’s political acumen.

You want to meet sometime, Lou?  Well, maybe our paths will cross, but I don’t plan to go out of my way to make them do so.

 

A Letter to the Secretary of the Interior from the Coalition for Cultural Justice

Over the last few months I’ve become involved with a group of academic and non-academic practitioners of historic preservation, planning, sociology and other fields, whose members are concerned about where historic preservation in the United States is going.  Calling itself the Coalition for Cultural Justice, on April 9 the group sent the following letter to the new Secretary of the Interior.

The Honorable Sally Jewell

Secretary of the Interior
1849 C Street NW
Washington, DC 20240

 Dear Secretary Jewell:

 

Congratulations on your confirmation as Secretary of the Interior.  We hope we can look to you for innovative and creative leadership in the coming years.

Among the less-known functions of your department is the leadership role Congress charged it with providing in historic preservation.   Under the National Historic Preservation Act of 1966 (NHPA), the Secretary of the Interior sets standards for historic preservation throughout the country, oversees the State and Tribal Historic Preservation Officers, maintains the National Register of Historic Places, and is a member of the Advisory Council on Historic Preservation (ACHP), advising the president, congress and federal agencies on ways to conserve the cultural heritage of the nation and its diverse communities. 

There is widespread support throughout the United States and across the political spectrum for historic preservation as part of a program of flexible, humane heritage conservation. What’s more, there is mounting evidence from public health and other fields that heritage conservation benefits communities, neighborhoods, Indian tribes, and citizens in general – if it is responsive to public needs and values.

But in recent decades, historic preservation has been bureaucratized to the point where it often seems to serve the needs of government officials and consultants more than those of citizens. Too much power has been concentrated in official bodies both within your department and on the state and local levels.  These officials tend to be preoccupied with bureaucratic survival, leading them to serve development and real estate interests with little accountability to ordinary citizens affected by their decisions.  Or they become rigid in their interpretation of technical guidelines and unyielding in their exercise of control, to the detriment of socially responsible planning and public engagement.

Meanwhile, preservation practice has come to be dominated by specialists trained in narrow professional fields, especially architectural history and archaeology. As a result, the systems and programs overseen by your department often focus on places and things valued by specialists, rather than those held dear by the public.  This has particularly unfortunate implications, both for environmental impact assessment (EIA) conducted under the National Environmental Policy Act (NEPA) and related state and local laws, and for historic preservation activities carried out under state and local laws. With regard to impact assessment, much time and money is spent analyzing impacts on places and things that meet professional criteria but may be of little importance to the public, while environments of true cultural value to citizens are ignored and destroyed.   

The fact that development project sponsors pay for and direct most EIA work biases the system against conservation and deeply compromises the integrity of historic preservation, environmental protection, and community planning. With regard to local historic preservation, the deference accorded to the National Register and the Secretary of the Interior’s standards by many local ordinances amplifies the impact of too-narrow judgments at the top: these reverberate down the preservation ladder, leading local commissions to be less responsive to local needs than they should be.

The department you now head, sadly, has failed to combat or redirect these tendencies.  DOI’s legal mandate can, and we think should, be interpreted as one of promoting broad, flexible heritage conservation with sensitivity to all affected communities and interests.  But in recent years the DOI has focused too narrowly on technical matters like documenting and registering historic buildings and archaeological sites, giving little consideration to heritage from a community perspective. 

Historic preservation has become a cul-de-sac, isolated from broad streams of thought and action in fields like environmental conservation, social work, public health, community planning, public history, and community arts, as well as from the most innovative thinking in academic disciplines like geography, anthropology, and sociology.  It has become a bureaucratic exercise pursued by government officials and profit-seeking specialist consultants, disconnected from communities and the cultural heritage they value.  This is not only wasteful of money, historic properties, intellectual capital and other resources; it is fundamentally unjust, depriving the nation’s communities of the ability to use federal law to preserve what they think is important to maintaining and revitalizing their cultural integrity..

As a group of academic and non-academic practitioners of historic preservation and related fields, we are deeply concerned about how historic preservation has drifted, and urge you to take action to give its practice new life and direction.  Specifically, we urge you to:

•  Take a hard look at the National Register of Historic Places, which has come to be dominated by narrow quasi-academic interests and the economic priorities of developers seeking investment tax credits, often at the expense of community values. Consider what can be done to reorient the National Register to serve as a useful tool in community planning and heritage management; if it cannot be such a tool, perhaps the time has come to devise a better one.

• More generally, re-think the role of the National Park Service (NPS) in the national historic preservation program.  Consider whether the external preservation functions of NPS should be reorganized and re-tasked to relate creatively and with understanding to the world outside the parks.

·         Re-think the emphasis NPS insists that State and Tribal Historic Preservation Officers and Certified Local Governments give to National Register nominations and technical oversight of compliance with regulatory requirements.  Seek to encourage attention to the genuine heritage concerns of citizens and communities.

·         Work with the ACHP, the Council on Environmental Quality, and the Environmental Protection Agency to rework the rules governing EIA, emphasizing true consultation with affected communities, tribes, property owners and other citizens and greater responsiveness to cultural heritage concerns; at the same time seek ways to counter the natural influence of development interests on the consulting firms they hire to conduct EIA work.  Encourage similar reforms by state governments.

·         Direct Interior agencies like the Bureau of Land Management, the Bureau of Reclamation, and the Fish and Wildlife Service to build model programs of community-oriented, culturally sensitive EIA.

·         Encourage state, tribal, and local governments participating in the national historic preservation program to carry out projects linking the conservation of heritage – including but going beyond historic preservation – with community planning and social service agencies, so that heritage conservation serves as a component in building and maintaining strong communities.  Evaluate, document, and disseminate the results.

Almost fifty years ago, Congress enacted and President Lyndon Johnson signed the NHPA into law, with its finding that “the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people.”  DOI, together with the federal and state agencies assigned duties by the NHPA, have drifted very far from that worthy, community-oriented goal. 

We urge you to conduct a full review of the national historic preservation program with the aim of bringing it back to the intent of its founders, as that intent relates to the imperatives of the twenty-first century.  We would be pleased to do whatever we can to assist in such an enterprise.

I signed the letter, as did: 

Ned Kaufman, PhD, Professional Consultant in Heritage Conservation,   

Daniel Bluestone, Professor of Architectural History and Director, Historic Preservation Program,
University of Virginia, Charlottesville,

David Rotenstein, PhD, Historian and Historic Preservation Consultant,

Michael R. Allen, Director, Preservation Research Office, Washington University in St. Louis,

Michael Nixon, Cultural Resources Lawyer and Consultant,

Peter A. Primavera, Managing Partner, Peter Primavera Partners, President, National Landmarks Alliance, and Managing Partner, Garden State Legacy,

Danielle Del Sol, Managing Editor, Preservation in Print Magazine and Adjunct Lecturer, Tulane University,

and Tufts University graduate students Andrea Devining, Alix Fellman, Maurice Robb, Merik Ugdul, Annie McQuillan, Claire Nellisher, Osi Kaminer, Umayank Teotia, Shane McCabe, Frederick Wolf, Blayne O’Brien, Laura Casas Fortuno, Francine Morales, Umi-hsi Chao,

The letter has received no response, and it’s not clear what the Coalition will do next, but its membership rolls are open and I, at least, find it encouraging that people are thinking about and discussing such matters.

 

Historic Preservation in Cuba: a First Impression

In the late 1950s – probably like every other high school kid not immersed in sports and cars (I was into pothunting and chess), I dreamed of joining Fidel Castro’s cadres in Cuba’s Sierra Maestra. Had I only been a couple of years older, with better eyes, been a better shot, more able to roll my “r’s”…..

The aspiration was soon enough forgotten as I went off to the Navy and then to college, and as Cuba found itself with no choice but to align itself with the Soviet Union. But its memory echoed around in my head last week as I visited the island nation with my wife, daughter, and son on a Smithsonian Institution “People to People” tour. Such tours are among the several ways that U.S. citizens can now visit Cuba, despite our continued idiotic embargo (the Cubans call it el bloqueo – the blockade). Keeper of the National Register Carol Shull was on the same tour with her husband Joe; we carefully avoided philosophical discussions.

The tour – well organized, well directed, jam-packed and exhausting – wasn’t particularly focused on historic preservation, but naturally I paid special attention to the historic fabric of the places we visited – several parts of Havana, Matanzas, Cienfuego, Trinidad, the reforested 19th century coffee plantation at Las Terrazas. And came home with a range of impressions and puzzlements.

I don’t pretend to have become in any way expert – or even knowledgeable – in Cuban historic preservation, but such deficiencies have seldom prevented me from expounding on a subject, and the visit certainly provided lots of food for thought. So here are some first impressions.

What they say about Cuban historic architecture is true; the major cities at least are amazing mélanges of Neoclassical, Baroque, Art Nouveau, Art Deco, Moderne, Moorish, and the well-named Eclectic styles. Lots and lots of elegant, handsome buildings, quite a few of them very well preserved, restored, or rehabilitated.

But the well-preserved or fixed-up buildings are mostly major government and ecclesiastical edifices, high-end house museums, places entered in the World Heritage list and getting help from UNESCO or ICOMOS, and/or hotels and restaurants attractive to tourists. And even many of these show the sad fruits of much-deferred maintenance. I saw several major rehab projects – facademized gut jobs, often – abandoned in mid-career, scaffolding festooned with vines. I failed to ask, but my guess is that these were underway in the early 1990s when the Soviet Union collapsed and Cuba, deprived of its major trading partner, descended into the profound economic crisis now referred to as the “Special Period.”

In the neighborhoods, the graceful little houses and streetscapes that reflect the lives and values of ordinary people are pretty uniformly rotting and weathering away.

So I found myself puzzling over what a country like Cuba could possibly do – if it wishes – to maintain its historic character, respect the traditional cultural values of its people and communities and neighborhoods as expressed in architecture, while staying true to its socialist principles. I reached no very useful conclusions.

Just “opening up” to its northern neighbor (casually referred to as “the Empire”) is surely not the answer. That way has to lie a return to the days of Batista and his cronies, or rather to their steroid-infused ideological descendents on Wall Street and K Street and Miami’s Calle Ocho. But that’s clearly what a lot of people expect and want to see happen. “Five years,” crowed our airport shuttle driver in Miami (himself a fairly recent immigrant), “and then it’ll be wide open; you’ll be able to do ANYTHING!”

Yes indeed, and we can imagine what that anything may look like, both in socioeconomic terms and in terms of the historic, cultural, and social fabric of neighborhoods.

So what devices might Cuba employ to preserve its character while improving the lives of its citizens and achieving some sort of détente with the Empire and the rest of the capitalist world? And are such devices anything that we elsewhere in the world ought to consider emulating? We were shown a couple of maybe-models.

Art in support of preservation

We visited an art studio in a private home. Mimes performed outside – to expose the neighborhood to culture, we were told, in which its residents must have been perceived to be deficient. Proceeds from the sale of the art in the studio go – in part, I assume – to preserving and “restoring” (stabilizing?) the picturesque ruins of an old slave-operated sugar mill out in the country.

The president of the local Committee for the Defense of the Revolution (CDR) lived in a vernacular wooden house across the street with a weathered, unpainted facade; its residents and those of neighboring homes watched both the mimes and the tourists with what appeared to be studied impassivity.

It struck me that the model of using art to support preservation had promise, but I wondered if – especially for consistency with socialist principles – it couldn’t be reoriented somewhat. If one wants to involve the neighborhood in the arts, why in the world use the proceeds of your sales to preserve some ruin out in the bush? Why not use them to help the people fix up their houses, which are just as much a part of Cuba’s cultural fabric as are collapsed sugar mills? Wouldn’t this be truer to the spirit of the Revolution, and build a better relationship with the community?

There probably aren’t enough artists or art buyers to have a huge impact on the deterioration of Cuba’s unique architecture and neighborhoods, but it could make a modest contribution. And the model is doubtless exportable; I found myself imagining something similar being done in a pueblo in the U.S. Southwest, with pottery and weavings substituting for studio art. I don't know about the mimes.

Microbrigades

Our very accomplished guide, Amircal Salermo Llanes1 (who thoughtfully goes by “Cal” among yanquis) told us about the “microbrigades” that in the 1970s built a good many of the apartment blocks around Havana and elsewhere. In essence, those who were going to live in them built the structures, using standardized plans and with supervision by a core of trained builders.

The structures are pretty ugly, though Amircal, who grew up in one, says he loved it and its community of residents. They not surprisingly reminded me of the brutalist slab-like structures you see all around Beijing, and that I understand are common in Moscow and other cities that fell under the humorless sway of the USSR after World War II. But the notion of investing sweat equity in building one’s own place is a widely attractive one, that a lot of governments (one thinks of Israel) have used to good effect.

In the midst of one group of Microbrigade apartment blocks there was a massive old building – I don’t know what it had been, but it was a handsome neoclassical masonry pile, about the size of the apartment buildings – standing vacant, windows and doors blown out. “Sadly,” Cal said, “there’s no use for it.”

“Huh?” I thought. Why couldn’t it be – have been – rehabbed as an apartment building along with all the new (sic) construction? Of course, I don’t know the particulars, but suspect that it didn’t fit into the Microbrigade program because it wasn’t amenable to (re)construction following cookie-cutter plans. But surely it could be rehabbed, and there’s no intrinsic reason why a Microbrigade couldn’t do it. Is that a model worth considering? Put people to work rehabilitating usable old buildings under modest professional supervision? Would such a model make sense in the U.S., too? A sort of neighborhood-scale urban homesteading program? One couldn’t expect rigorous attention to the U.S. Secretary of the Interior’s Standards for Rehabilitation or their Cuban equivalent, but it would surely be better to get people comfortably housed and retain good old buildings than to be sticklers for principles that, on the whole, are most meaningful to preservation specialists.

The Old Havana section of downtown Havana has been, on the whole, handsomely maintained and/or restored, as has the Plaza Major of Trinidad, with a good deal of help from UNESCO. All well and good, but I have to wonder whether there’s a tendency toward all or nothing – either preserve/restore fully or ignore. It’s an easy tendency to adopt. One of our fellow Yanqui tour participants engaged me in conversation and brought up the Old Post Office in Washington DC – as an example of poor preservation because it’s been converted to federal offices! Never mind what Donald Trump’s going to do to it, but my oh my, have we so badly failed to alert the public to the acceptability and practicality of adaptive use?

I continue to ponder lessons learned, or at least glimpsed, in my brief introduction to Cuba, and certainly have no answers. I just hope that someone is thinking creatively about its remarkable urban fabric, and how to preserve and make good use of it as the doubtless inevitable opening up proceeds.
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1. amiricalsalermo@gmail.com; HIGHLY recommended to anyone seeking a guide or translator in Cuba.

Of Aimless APEs and Pedestrian Profiteers

I am just back from a conference of the National and California State Associations of Environmental Professionals (NAEP/AEP) in Los Angeles. I believe it will be my last professional conference. There are a couple of reasons for this, but the major one is that I just find the things too bloody depressing.


I was there at the invitation of Kurt Dongoske, Tribal Historic Preservation Officer (THPO) for the Pueblo of Zuni, to take part with him and Theresa Pasqual, Acoma HPO Director, in a session on the National Environmental Policy Act (NEPA) and tribal concerns. That session didn’t depress me; I thought it went pretty well, and was well enough received by the 30 or so people who attended.


But beforehand I wandered the display area, where environmental consulting firms display their wares. The exhibits pretty uniformly advertised work under NEPA and the California Environmental Quality Act (CEQA), and almost every one touted their “NEPA/CEQA Documentation.” Documentation. Not analysis, not conflict resolution, certainly not consultation or creatively addressing public concerns. Only one ad I saw even alluded to “compliance.” Nope, crank out those documents, that’s what we do. That’s why you pay us the big bucks.


That, however, was not the most depressing aspect of the conference. That distinction was reserved for a session on “Cultural Resources in Large-Scale Linear Projects.”


I should’ve known better than to attend. I should’ve gone to something on wetland delineation or air quality.

One of the papers was about evaluating historic highways, and it just struck me as silly. Lots of stuff about historic contexts and what gives an old road integrity in the eyes of – well, somebody; exactly who was never specified, but it seldom if ever is. Another was about an interagency effort to “streamline” (God, I am sick of the Cult of the Streamlined) review of projects to refurbish existing railroad facilities. This struck me as a lot of strained labor to give birth to gnats, but it did offer a few modestly clever ways to reduce time wasted on pointless paperwork. And since the poor devil had all the usual dead weights to contend with – Advisory Council, National Trust, State Historic Preservation Officers – glacial progress was the best one could hope for.

But then there was the one on archaeological surveys of linear projects like pipelines and transmission corridors, in which we were told that:


1. The area of potential effects (APE) of a linear project is the area subject to ground disturbance; and

2. “Cultural resources” are identified in these APES through the conduct of “pedestrian surveys” – i.e. archaeologists walking the ground – sometimes augmented by shovel testing (digging holes).


Why was hearing this so depressing? Well….

First, when my colleagues and I came up with the idea of APEs, during the mid-1980s rework of the Section 106 regulations, I feared that the deadhead archaeologists who even then were coming to dominate practice under the law would interpret it as meaning “duh, where you’re gonna disturb th’ artifacts.” So we tried to make it pretty clear, in the regs and in various pieces of guidance, that the term means just what it says. The area of potential effects is the area (or areas) where a project may have effects on historic properties. Physical effects, sure, but also visual effects, auditory effects, olfactory effects, socioeconomic effects – effects of any kind. The reason we define APEs is – I thought, back then – so we’ll think through what effects are likely, make projections, and try to examine the potentially affected environment in a thoughtful way. It was clear from the presentation in L.A. that this simple, obvious notion – the only one that relates plausibly to the purposes of laws like NEPA and the National Historic Preservation Act – has been entirely lost on the mindless automatons that pass today for “cultural resource consultants.”


Second, while pedestrian survey is one way to identify archaeological sites (though not the only way; see below), it is at best a very poor way to identify quite a wide range of other types of historic property – notably cultural landscapes and traditional cultural properties. It is even worse as a means of identifying “cultural resources,” which by any sensible definition may include culturally valued animals, vegetables, and minerals, water, viewsheds, atmospheric phenomena, and such wholly intangible things as language, songs, and stories. Sure, some of these “resource” types may not be much prone to effect by pipelines or power lines, but some of them very likely are, and they’re supposed to be considered under NEPA. And an archaeologist strolling along digging holes isn’t going to find them.


How do you find them? First by defining your APE broadly enough to allow them to be sought – for example, by including areas from which your transmission line will be visible, or your pumping plant will be audible. Second, by recognizing that some “resources” – like water, and songs – may not have very point-specific geographic references but still may be affected by changes in the landscape. At least from the perspectives of some people, some citizens – for whom, after all, Congress made laws like NEPA and Section 106.


And third, by talking with people! The tribes, the ranchers, the artifact collectors, the hunters, the local archaeological and historical societies, the residents. Asking them what they think of a pipeline or a row of transmission towers running through their viewshed, or along their country road, or across their swimming stream or through their forest. Asking them what, if anything, they know or think about the area’s historic resources, and what, if anything, they value in the affected environment. Asking people about their concerns, and about what constitute “resources” in their eyes, is a fundamental part of Section 106 review, and good practice under NEPA.


So I asked a couple of questions.

1. Did the presenter have some regulatory or other basis for his definition of APE (since it certainly didn't have anything to do with NEPA or Section 106)? Well, he responded, it wasn’t for him, the consultant, to question the responsible agency. Odd, somehow I thought the business of expert professional consultants was to apply their expertise to the formulation of advice to their clients. Counsel, as it were. Somehow I’ve allowed myself to be misled into thinking that a consultant ought to know the regulations he’s being paid to help implement, and act as his or her client’s expert advisor. Silly me.


2. Had he talked with anybody? He smiled a bit lopsidedly and said that while federal agencies were usually OK with his talking to the public, private clients generally weren’t; his team’s job was to walk their routes and dig their holes in secret. Thus defeating the public purposes of the laws, and depriving themselves and their clients of the data they would need in order actually to comply with those laws, but oh well.


I know, sadly, that there’s nothing new or unusual in what I’ve just reported. Surveys by pedestrian archaeologists in narrowly defined APEs are standard practice, widely if stupidly thought to satisfy the regulatory requirement for a “reasonable and good faith effort” to identify historic properties (never mind “cultural resources”). And this, I suppose, is the more personal reason the NAEP/AEP session left me so discouraged. Because since 1998 I’ve published some six books and who knows how many journal articles, government guidelines, and internet postings about Section 106 review, many if not most of which explore what an APE ought to be, and what constitutes a reasonable and good faith identification effort, and almost all of which rail on and on about the importance of consultation. And here we are in 2013, with well-dressed consulting archaeologists explaining to NEPA consultants that the law’s really satisfied through the conduct of secret surveys by pedestrian archaeologists in narrow little corridors. Books? Papers? Guidelines? Who reads any of that stuff? We consultants know what the law really requires – it really requires whatever it is that we’re comfortable doing, that makes us a lot of money, and that facilitates our clients’ projects. Ours is not to question what our clients tell us to do, or to advise them about how best to comply with the laws – or even to know what the laws require. Ours is to receive our orders, walk our APEs, dig our holes, keep secrets, and collect money.

What a fine industry we’ve created.