How to Sidestep Consultation: Part 2

Second in a series on how project sponsors and government agencies can avoid consulting with Indian tribes, property owners, citizens groups, and other concerned parties under the U.S. cultural resource management (CRM) and environmental impact assessment (EIA) laws.

Discouraging Dissent

If you can’t get away with Three-I (inform, get input, and ignore) – if you actually have to sit down and talk with people, give them the opportunity, in theory, to influence your thinking through face-to-face discussion and/or extended correspondence – there are still plenty of ways to limit your risk of actually having to pay attention.  Here are a few possibilities:

Establish and Maintain Presumptions

One of the first things to do is to establish the presumptions that will structure and control anything that resembles consultation.  You need to control the conceptual environment within which discussions will take place.  In National Environmental Policy Act (NEPA) terms, you need to define the purpose of and need for your project in such a way as to minimize the range of alternatives that are open for discussion. 

Say, for instance, that you’re proposing to put in a solar energy project that will use thousands of acres of public land and have visual impacts on thousands more.  What’s the purpose of this project, and why’s it needed?  Well, you might think that the purpose is to generate a lot of electricity in a relatively clean way.  You might think that the need is to reduce dependence on fossil fuels.  But if you let purpose and need be defined that way, there are quite a few alternatives that might be considered – distributed solar panels on rooftops, solar over canals, solar in highway medians, maybe wind energy, tidal energy, and geothermal.  If it turns out that the site you want to use is a tribe’s spiritual landscape, or the local community’s favorite place to commune with nature, or the home of a lot of endangered squirrels and sand-fleas, you may find a constituency developing for such alternatives, and you’re going to spend a lot of time and money analyzing them.

But wait!  You can argue that the federal action here – the thing that requires review under NEPA and the National Historic Preservation Act (NHPA) in the U.S. system – isn’t the generation of energy!  No, it’s the issuance of a right-of-way by the federal land managing agency to allow you to put in the facility.  So the need is for the agency either to issue the right-of-way or not to; the purpose is to satisfy the agency’s regulatory requirements.  That means that the only relevant alternatives are to issue the right-of-way or not to, or maybe to issue it with a tweak here and an adjustment there.  Once you have this established, then the presumption that all the consulting parties – the serious ones, anyhow – must share is that your project either (a) will go in and produce the public benefits you claim, or (b) won’t go in and the public will be deprived of those benefits.  Your opponents are now arguing against the public interest in affordable, clean energy and reducing greenhouse gas emissions; they’re going to destroy the planet just to protect their esthetic values or crazy religious beliefs or hangup with fuzzy critters.  Needless to say, this will put them at a disadvantage.

Bury Them in Paper

This is a very popular and effective strategy in the U.S., particularly with Indian tribes since the 1990s when statutory changes and executive orders increased the level of official rhetoric calling for tribal consultation.  It’s pretty simple; you “consult” your potential opposition about everything, by sending them letters – preferably OCLs (See “The Obscure ‘Consultation’ Letter,” above) – about every project you consider, at each and every step in your planning, or about each and every subdivision of your plan.  Particularly if you’re communicating with an official body like a tribal council or tribal or local historic preservation officer, they’re probably getting similar letters from dozens of other agencies and project proponents; their in-boxes are overflowing.  Add to the pile!  And be sure to ask – ever so politely – that they respond to you by a date certain, so you can show that, gee, you tried, but they missed the deadline and you just had to move forward.

Of course, in this day and age it doesn't have to be paper per se.  Save trees; bury them in digital media.  My colleague David Rotenstein refers to what he calls "the two-ton PDF" -- massive e-documents made available via websites or as attachments to email, or maybe on CDs.  Some people won't be able to open them at all; others will just get lost trying to work through them.  You can put a lot of garbage into a two-ton PDF (or compilation of PDFs, MS Word documents, spreadsheets, digital imagery, and so on) at very low cost.  You look like you're sharing freely with concerned citizens, when really what you're doing is swamping them.  If you were consulting in good faith you'd organize the stuff carefully to facilitate its use, but you're not, so don't.

Invite to “Cooperate” or “Collaborate”

One way to confuse and discourage a potentially adversarial consulting party is to invite them to “cooperate” or “collaborate” in your project review.  This can be useful language to use in your OCL or public notice.  The recipient or reader doesn’t want to cooperate with you, or be a collaborator (Maybe she’s old enough to remember what that word meant in Europe during World War II, or knows how it’s still used in some countries with oppressive governments).  She wants to stop your project, or change it in some way.  By inviting her to cooperate or collaborate, you may actually discourage her participation.  Conveniently, in project review under NEPA, about the only way someone can actually be consulted about the project – and then only if they’re a government agency – is to be recognized as a “cooperating agency” (40 CFR §1501.6). 

Divide and Conquer

Easy as it is to be scornful of those who oppose or dislike your project, you’ll benefit by recognizing that they’re complex human beings, each with a range of concerns, values, and priorities.  Why?  Because you can exploit their differences. 

In my practice, I often deal with cases in which proposed projects will destroy what archaeologists call archaeological sites, and what Indian tribes or local communities think of as spiritually powerful ancestor places – where ancestors’ bones were sent on to the next world, or where the elders communicated with the spirits, and maybe still do.  Neither tribal people nor archaeologists may want the places destroyed, but they’re likely to be suspicious of one another, and not readily inclined to cooperate as parts of an organized, strategic opposition.  Or maybe the Sierra Club’s hydrologists say that anything over .2 parts per million of gunk in the PaleAle Aquifer would be a problem, while to the local tribe anything above zero parts per million would be intolerable, and they just can’t talk about it in terms of how much is too much.  If you have a situation like this – not necessarily Indians and archaeologists, or Indians and water quality experts but any case where potential consulting parties are antagonistic toward one another, suspicious of one another, or have conflicting world views – you can make good use of their differences.  Subtly encourage them, build on them, and play them up with other parties, particularly those with real power, like regulatory agencies.  There’s nothing wrong with your project; you’re just caught in the middle between opposing interests.  You may not be able to escape consultation altogether, but you should be able to keep the opposition disorganized, preventing anyone from developing enough power to mount a serious challenge.

Keep the Focus Narrow

You can usually minimize participation – though you’ll probably infuriate some consulting parties – by keeping the focus of the consultation as narrow as possible.  Insist on paying attention only to the specific subject of whatever law or regulation is driving the consultation, and define that subject as narrowly, rigidly, and arbitrarily as you can.  Or use some regulatory bureaucrat to do so.  If you’re consulting under NHPA Section 106, you can try to make sure the agenda of each meeting is organized around things like exactly what makes places eligible for the National Register of Historic Places, using lots of shorthand references like “Criterion C” and “contributing element.”  If NEPA is your authority you can debate the fine points of impact significance with reference to the definitions at 40 CFR 1508.27.  When somebody starts emoting about how important the Big Blue Oak or the Old Kissing Bridge is to the people of West Easterly, you (or your consultants) can patiently explain that you really can’t talk about these places unless and until they’ve been determined eligible for the National Register of Historic Places.  That’s not true under either NEPA or NHPA, but how are the West Easterlians to know?  And if they want to worry about the fish that swim under the Old Kissing Bridge or the birds that squawk in the branches of the Big Blue Oak – well, that’s a job for the professional biologists, and the fish and birds really don’t matter (you can say) unless they’re on a threatened or endangered species list.  And the PaleAle Aquifer?  Well, it’s surely much too big and ill-bounded to be eligible for the National Register, so we really can’t deal with it under NHPA – however culturally significant its water may be to the tribe – and the water quality issues will be taken care of by the water quality experts, so really, it’s off the table as a subject for consultation. 

 You can pretty certainly count on official experts like – in the U.S. – State Historic Preservation Officers (SHPOs), the National Park Service (NPS) and environmental protection agencies to support you in keeping the focus tight and bureaucratically defined.  Such experts are usually comfortable picking professional and procedural nits, and they're unlikely to feel invested in addressing stuff that’s just important to citizens.  They’re also often pretty easy to dupe; I run into a lot of SHPO and agency experts who may be perfectly competent architectural historians, archaeologists or wildlife biologists, but whose understanding of the relevant laws and regulations is, to be charitable, very limited. 

After a meeting or two at which the professionals slice and dice esoteric technicalities while everyone else sits and fumes, people will often throw up their hands and go away.  They may write a nasty letter or two, but you can respond to these with meaningless rhetoric (See OCL above).

 Keep Secrets

This is particularly fun to do with Indian tribes and Native Hawaiian groups in the U.S.  You have archaeological surveys done, or maybe even ethnographic studies asking tribal members to cough up information on what they value in the environment, and then you decline to share the resulting data with them, their lawyers, or their allies (like environmental groups) because – you say solemnly – releasing the data might endanger the sites and special places that have been recorded.  Someone might go out and dig them up, or do other terrible things to them.  This naturally limits the opposition’s ability to frame arguments against you, or at least requires them to generate their own data, which you can usually discredit or just ignore (See below).

In the U.S. there are legal grounds for keeping data on historic places confidential[1] – not very good legal grounds, but substantial enough to confuse people.  You can count on archaeologists and regulators to be supportive; they tend to be dogs in the manger when it comes to information on their own special places, and keeping cultural places secret is a knee-jerk response among Indian tribes.

 If you’re not dealing with archaeological and historic sites, or you’re not in the U.S., there may be other ways to hide data that could be troubling.  Maybe you can say it’s proprietary, or needs to be kept confidential in the interests of national security.  If you’re representing a government agency you may have the authority to keep almost anything secret.  And of course, you can always just lie.

Maintain Professional and Bureaucratic Standards

Reliance on standards has become a popular way for some land management agencies in the U.S. to avoid considering impacts on aspects of the environment that don’t fit neatly into pre-defined bureaucratic pigeonholes.  Even if it’s not as big a head-scratcher as whether the PaleAle Aquifer is a historic property – even if, say, the local tribe says it’s the 10,000 square mile landscape overlying the aquifer that’s culturally important -- you can rub your corporate or bureaucratic chin and say “Hmm, we’re not sure how to relate anything that big and ill-bounded to the regulations and guidelines on eligibility for the National Register of Historic Places; we’ll have to study that.”  Then keep assuring the world that you’re studying the matter very earnestly, while in fact you're doing no such thing, and in the meantime ignore the landscape and plan to take care only of the “archaeological sites” that the proponent’s paid-for contractors have oh-so-carefully defined in such a way as to be easily “avoided” by the mine pits, haul roads and spoil heaps.  Somebody may point out that what you're saying is that your information on cultural landscapes is incomplete, and according to the NEPA regulations if there’s “incomplete or unavailable information” that’s relevant to determining environmental impacts, you’re supposed either to get the information or explain why you can’t (40 CFR 1502.22).  To judge from recent cases I’ve seen, however, this seems to be a pretty easy reminder to dodge.

Shift the Burden of Proof

Under U.S. laws like NEPA and NHPA Section 106, it’s the responsible federal agency – or the project proponent at the agency’s direction and with agency oversight – that’s supposed to collect, organize, and analyze data on a project’s likely impacts.  Often, though, it’s possible to shift this burden onto the shoulders of the opposition.  The tribe and environmental group think the mine will pollute the aquifer?  Well, they haven’t presented any studies proving this to be the case.  The people of West Easterly think the Old Kissing Bridge is eligible for the National Register?  Well, they haven’t proved that it is; why don’t they prepare a nomination form and see if they can get it listed?  If they buy this argument – and many will, knowing no better – then they’ll have to go out and spend the money to gather and organize and analyze the relevant data.  They’ll have to gather comparative data on aquifers and mines, collect and organize historical data, beat up tribal elders to get them to share their spiritual secrets and traditional ecological knowledge.  Best of all, they’ll have to present the data on your terms, or on the terms of the oversight agencies – maybe even having to do things like nominating places to the National Register, using the strange, utterly counterintuitive forms on which NPS insists.  By doing so, they’ll take upon themselves the burden of proving the case, in the foreign – to them – language of science and bureaucracy.  They’ll probably fail, and waste a lot of time and money in the process.  Meanwhile you can proceed with your planning and ultimately with your project, while assuring everyone that you’re waiting ever so respectfully for the tribe or the environmentalists or the West Easterlians to make their case.  If they never do, or never do it to the satisfaction of the SHPO or the NPS or the environmental regulators, well shucks, that’s not your fault.

Forthcoming in Part Three:  Ignoring and Expanding Alternatives, and Manipulating Agreement Documents

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[1] Section 9 of the Archaeological Resources Protection Act (ARPA) and Section 301 of NHPA.

How to Sidestep Consultation

Claudia Nissley and I are wrapping up a book for Left Coast Press on consultation under laws like Section 106 of the National Historic Preservation Act (NHPA).  Naturally it promotes broad, inclusive consultation aimed at identifying and resolving conflicts between the cultural environment and modern development.  It should be out by mid-2014.

But what if you’re planning a project and you don’t want to consult with people about it?  What if you know what you intend to do, and by damn, you’re going to do it?  Or what if you’re the bought and paid-for consultant (sic) for someone who doesn’t want to consult?  I wanted to include a chapter in our book for such folks, but Claudia talked me out of it.  So I’ll present it here in three parts.  You needn’t thank me.

Introduction

Many U.S. laws, executive orders and regulations, as well as some international conventions and other agreements or guidelines, call for project proponents and government agencies to consult with those potentially affected by proposed construction and land use projects.  But consultation is bothersome to government agencies and non-governmental project sponsors alike; most would prefer to avoid it.  After all, sponsors know what they want to do, and agencies usually have their marching orders; consultation is unlikely to deflect them far from their preferred courses of action.  To them, consultation is a costly, time-consuming frill. 

Under U.S. law, there are lots of ways to avoid, or at least minimize, consultation when planning a project.  It’s doubtless the same in other nations whose governments are more or less similar to that of the United States.  In nations with political systems that are dramatically different from ours (e.g., China, Cuba) the same strategies may not work, but variants on them doubtless will, and do. 

So, if you’re trying to put in a project and you want to avoid or minimize consultation with an indigenous group, local residents, or just about anyone else, here are a few strategies to consider.  Each may not work by itself to spare you the nuisance of consultation, but a combination usually will.  If you can’t avoid consultation entirely, some of these techniques may help you control the process and minimize its impacts.

Limit the Parties

You can try to consult only with those you’re absolutely required by law to consult – the fish and wildlife agencies in the case of the Endangered Species Act (ESA), the State Historic Preservation Officer (SHPO) under the National Historic Preservation Act (NHPA), agencies with “jurisdiction by law or special expertise” (whatever you take that to mean) under the National Environmental Policy Act (NEPA).  For the most part these consulting parties will be government agencies that are probably sympathetic to your interests – at least in their higher echelons where they’re sensitive to political pressure and far from the on-the-ground effects of projects like yours.  Even if they’re not entirely sympathetic, they’re predictable; they have rules and customs, time frames and deadlines; they’re used to taking part in polite meetings, composing and reading elliptical letters and memos, and trying to be good team players.  Or they’re satisfied to lodge their comments and say “well, we’ve done what we could.”  If worst comes to worst, they can be pressured by higher political authority – the congressperson or president to whom you’ve made campaign contributions.

Federally recognized Indian tribes in the United States are something of a special case, and minimizing consultation with them can be tricky.  The responsibility to consult with such tribes is a broad one, with a lot of case law behind it.  Every recent U.S. president has issued direction to consult (without saying much about how and when to do it), and every federal agency has its own internal guidance on the subject.  So unless you can take the position that whatever you’re proposing to do just hasn’t anything to do with tribal interests, you’re probably stuck doing some kind of consultation.  But it doesn’t necessarily have to be much consultation; you may be able to employ one or more of the strategies outlined below to keep it to a minimum.

Make FACA Your Friend

In 1972, reflecting increasing public unease about secret deal-cutting between government officials and outside groups, the U.S. congress enacted the Federal Advisory Committee Act (FACA).  In essence, FACA forbids U.S. government agencies from establishing and maintaining advisory groups made up of non-government employees, unless the groups are structured and governed according to strict regulations; their meetings have to be open, their membership public, and so on.

If you’re a non-governmental entity in the U.S., it may be worth considering arguing that the consulting parties seeking agreement about your project under a law like Section 106 of the NHPA constitute an illegally constituted advisory committee.  They probably don’t; federal agencies carry out hundreds of NHPA Section 106 consultations every year without running afoul of FACA, and there are fine points in the interpretation of FACA and its implementing regulations (41 CFR 101-6) that are generally thought to let Section 106 consultation off the hook (See King 2001:110-14).  That said, an implied threat to call the responsible agency to account for violating FACA may have a chilling effect on consultation, making the responsible agency act more formally and cautiously than it might otherwise behave, bringing more lawyers to the table, and generally encumbering the discussions.  This may not actually be to your advantage, so the FACA card is one to be careful about playing, but it’s there to be played if you think it will help you.

Inform, Get Input, and Ignore

If you have to create the illusion of consultation with more than a few controllable agencies or experts, the widely used “Three-I” or “I³” Model is often effective.  Using this model, you tell the world (or selected parts of it) about your project, let everyone say (or shout, scream, or sob) their pieces, assure them that you’ll give every consideration to their concerns, and then proceed with whatever you’re planning to do.  Maybe make a cosmetic adjustment here and there to create the illusion of responsiveness, but don’t really do anything serious.  Keep a good record of what everyone has said, how they’ve said it, and maybe make up an account of how you’ve considered it.  You can then assure the world, and whatever regulators or courts you may have to deal with, that you’ve bent over backward to accommodate people’s concerns.  And you usually will be able to demonstrate, if need be, that you’ve followed the letter of the law, since most environmental and cultural resource laws and regulations specify that public input be considered but don’t specify how to do it, and either don’t explicitly require consultation or just use the word without specifying what it means.

Here are some common components of a “Three-I” strategy:

The Obscure “Consultation” Letter

The obscure consultation letter (OCL) works particularly well with Indian tribes, but it can be applied to any group.  The idea is to write a letter to the group – automatically creating an official record of your “good-faith” effort to consult – but make it so obscure, so laden with bureaucratic and technical language, that it’s virtually incomprehensible to any normal reader.  Maybe include lots of attachments, too, the more technical the better.  In the case of a tribe, send it off to the Chairman or Governor or President and hope for the best.  Chances are there will just have been an election and the tribal offices will be all in flux, so the package will get lost or misdirected.  Even if that doesn’t happen, there’s a pretty good chance the OCL will wind up on somebody’s desk who will just scratch his or her head, wonder what it’s all about, not know what to do with it and as a result let it languish.  Give it thirty or sixty days, say “well, we tried,” and move on. 

With a group that’s not a tribe, you can’t take advantage of the confusion that’s commonly produced by tribal politics, but there’s still a good chance your OCL will get lost, buried under other incoming paperwork, or be puzzled over and argued about indefinitely rather than responded to with a demand that you sit down with the group and consult.

Post a Notice

When we consultants advise a corporate or government client that they need to consult, we’re often asked if this means they need to post a notice in the Federal Register, in the local newspaper, on the worldwide web, or on the bulletin board at the local Walmart.  We respond that these things may be among the ways to seek people with whom to consult, but by themselves they don’t constitute consultation.  Under some laws and regulations, though, posting a notice may be all you’re actually required to do, and if nobody responds, you’re good to go.  If you can get away with this, then of course you want to make the notice as unlikely as possible to attract attention.  As with a letter, if you can make it obscure, use a lot of technical or legal terms, and avoid any implication that the project might present environmental or cultural issues, you may be able just to post the required notice – specifying a deadline for comments, of course – and then wait to see what happens.  If nothing happens by your deadline, and no laws or regulations require you to do more, you can document what you’ve done and move on.

The Free-Floating Public Hearing

Americans in particular are suckers for public hearings.  It may be easy – even effortless – to maneuver opposition groups into reducing their demands for consultation to the insistence that you hold a public hearing.  So, then, hold one.  But avoid, if you can, any implication that it’s going to lead to anything, other than your sober consideration of everyone’s “input,” to which you really don’t need to give any consideration at all.

If you can manage it, keep your hearing as free-floating and unfocused as possible.  Make it a very general hearing on your project, its pros and cons, so you get all kinds of participants with all kinds of interests, most of whom just want the opportunity to spout off.  Make sure there are time limits – give each person three or five or six-point-three minutes to speak. 

Make sure that a lot of project supporters attend, and are as vocal as possible.  Pay them to come, if need be, and give them scripts.  If your project will (according to you, anyway) generate jobs, you can probably get unions to encourage their members to come, waving signs and pounding the floor.  Vocal project opponents can be helpful, too, particularly if they’re obvious nutcases; in the public eye their nuttiness will rub off on the whole opposition.

Document the hearing; keep good minutes and other records, so you can show anyone who asks that you really did a great job of consultation.  There’s a very good chance the opposition won’t be able to figure out how to insist on more, and if you’ve conned them into demanding a hearing, they’ll have little ground on which to build an objection; you’ve given them a hearing.

The Listening Session

The “listening session,” which has become popular in the early 21^st century, is a variant on the public hearing.  A listening session quite explicitly isn’t intended to have an outcome; you just listen to what people have to say, act sympathetic, and then – well, then it depends.  A listening session can lead into real consultation: having heard that the opposition is really concerned about the neighborhood or creek or lake, and having maybe even come to understand something about why they’re concerned and what they think ought to be done, you can go forward to engage in real, informed, consultation.  But you can often get away with treating the listening session as consultation, and making it your one and only “consultative” activity.  It can make you look oh-so respectful of the opposition’s views, and give you cover while you do nothing whatever to address them.

In planning a public hearing or listening session, be sure to be sensitive to environmental justice issues – make sure the session is open and convenient to whatever minority or low-income groups may be affected, and if need be get a translator so you can say you’ve really tried to communicate.  It doesn’t necessarily have to be a relevant translator – if you’re faced with an Indian tribe whose elders preferentially speak their own obscure language, you can probably get away with a Spanish translator.  You don’t have to make anybody understand anything, or come away from the session understanding anything yourself; you just need to appear sensitive.                                               

Source cited

King, Thomas F.

           2001     Federal Planning and Historic Places: the Section 106 Process.

                        Lanham, MD, Altamira Press

 Upcoming in Part 2: Discouraging Dissent

Unsolicited Litigation Advice

If you’re a landowner, an Indian tribe, a neighborhood group, or anyone else considering litigation against a federal agency for failure to comply with Section 106 of the National Historic Preservation Act (NHPA), I have some advice for you.  Most of it’s in my various books, but it seems like it might be helpful to toss it out in the form of a short, organized paper.  Yes, lawyers, here I am once again practicing law without a license; sorry about that.

Potential litigants deprive themselves of some of their best weapons by accepting too much of what “experts” and government authorities say about the law and its requirements.  Congress enacted Section 106 of NHPA to protect the American people and the historic places they hold dear from undue despoliation by federal government agencies and those they license or assist.  Over the decades, the government has allowed the law to be warped into affording such protection mostly just to things valued by narrow disciplinary specialists and agency bureaucrats.  But that’s custom, not law; the law itself, and the regulations (36 CFR Part 800) cast a broader net and give citizens more voice.  The trick is to avoid getting sucked in by the authoritative talk of the 106 bureaucrats and consultants; focus instead on what the law and regulations actually say.

So, here are some questions to ask and things to consider when an agency says it’s complying with Section 106 and you don’t think it’s properly considering impacts on something that’s important to you.

1.       Did the agency’s people contact and consult with you when developing the scope of work for identification of historic places?  The regulations (36 CFR 800.3(f) and 800.4(a)(3)) require that they identify consulting parties (like you) and then seek information from such parties in defining the scope.  Obviously, doing this is critical to finding, or even seeking, the places and effects that are important to you, but many if not most agencies skip it, and State Historic Preservation Officers (SHPOs) seldom remind them.

It’s a good idea to contact the responsible federal agency early on and tell them that you want to be a consulting party; this isn’t mandatory, but it makes it harder for them to ignore you.  Be sure to contact the relevant federal agency, not just whatever state or local agency or private developer may be involved.  It’s the federal agency that has responsibilities under Section 106.  Contact the SHPOtoo, but don’t expect them to do anything; they aren’t responsible for enforcing the law.

2.       Did they define the area of potential effects (APE) correctly?  The APE is supposed to include all the areas where the project could have effects on historic places – if any such places turn out to be there (In other words, the agency doesn’t need to know there’s a historic place involved; that’s something it has to find out).  “Effects” include direct and indirect effects, and whatever contributions the project may make to cumulative effects.  Effects of all three kinds can include physical, visual, auditory, olfactory, or any other kind of effects, providing they can somehow, in theory, alter the character or use of a historic place.  A change in an area’s olfactory regime, for example – making it smellier – might alter the use of historic houses (if any are there) by driving out their residents.  Agencies commonly define the APE only to include the construction footprint of the project, or mix up “direct effects” with “direct physical effects.”  You should be alert to this kind of thing, and raise questions or object.   If they blow you off, make sure that’s documented; it can be a good basis for showing that they’ve not complied with the law.

3.       What have they done (or what are they proposing to do) to identify potentially affected historic places?  Land managing agencies like the Bureau of Land Management (BLM) can be pretty reliably expected to confuse “identify historic places” with “send archaeologists out to find archaeological sites.”  Urban development agencies routinely conflate identification with sending architectural historians out to determine what styles the buildings represent, and whether any famous architects were involved in their design.  Agencies of all kinds routinely ignore or just don’t think about cultural landscapes, culturally important plants and animals (that may contribute to the significance of such landscapes), culturally valued neighborhoods, parks, streetscapes and rural areas, and culturally valued water-bodies and offshore areas.  If you value any such place – if it figures somehow in your history and/or cultural practices or beliefs, you ought to object strongly and loudly to an agency’s failure to do the kind of identification work that would find and consider it.   Again, if they blow you off, document it, and don’t stop objecting.  Don’t accept a statement that they have only to identify nice old buildings and archaeological sites, or historic places as appreciated by their professional consultants or the SHPO.  If the place is important to you, and/or your community, your tribe, your family, then the responsible agency ought at least to consider whether it’s eligible for the National Register of Historic Places (NRHP).

4.       How have they evaluated places to decide whether they’re eligible for the NRHP?  It’s very, very common for evaluation to be done in very black boxes, by narrowly-qualified professionals who don’t talk to a soul outside their own particular complex of cubicles.  Or if they do talk to anyone, it’s only to the SHPO.  They often apply very narrow-minded interpretations of the NRHP Criteria (36 CFR 60.4).  Such evaluations can and should be challenged, to the relevant agency and to the Advisory Council on Historic Preservation (ACHP) and Keeper of the NRHP in the National Park Service.  This may or may not get you anyplace, but raising questions about eligibility, early and often, is important in establishing a good documentary record on which you can draw in litigation.  Challenge both the procedures (e.g. failure to consult anybody concerned with the property) and the standards on which evaluation was based.  Even if they found that the place is eligible for the NRHP, look critically at their finding; they may have used tricky language that will enable them to say that whatever they’re doing won’t really affect what makes the place significant.  Which of course might be true, but most times isn’t.

5.       Have they done an honest and thorough job of determining what adverse effects the project may have on historic places?  A common ploy is to say that there won’t be any adverse effect (or any effect of any kind) because a place will ostensibly be “avoided” by construction.  This conflates “adverse effect” with “direct physical damage or destruction,” ignoring visual, auditory, and other such effects.  It also assumes that the place has been properly and accurately defined, so it’s possible to determine whether one has avoided it or not.  Very commonly in the west, agencies will ignore large cultural landscapes in favor of considering only individual archaeological sites within them, then define the archaeological sites more or less arbitrarily, and then say they’ll all be avoided so everything’s fine.  If you’re concerned with the landscape, or even just with the sites, you ought to call them on this and insist that they consider the project’s real effects on the places that are really important.

6.       What have they done (or what do they propose to do) to resolve the adverse effects?  This basically means somehow mitigating effects on them, and of course it requires that the places and the effects are reasonably well identified.  Even if these have been well identified, however, the agency may still slither out from under doing anything much about them.  A common ploy is to develop a Memorandum of Agreement (MOA) that is so ponderous, contorted, and laden with vague abstractions that it’s virtually impossible to decipher.  MOAs are supposed to be negotiated among the consulting parties, but they often aren’t; the agency just has an MOA drafted and slaps it down in front of everybody to sign.  If you don’t understand what you’re being asked to sign, you obviously shouldn’t sign it, and you should object.  Another common practice is to include “kick-the-can” provisions, saying that something that ought to be done before the MOA is even considered (like evaluating historic properties and effects) will be done after the project is approved and underway.  Occasionally there are good reasons for such provisions, but the burden of proof should be on those proposing them to demonstrate why they’re necessary and appropriate.  Often, too, MOAs will deal only with direct, physical effects on specific buildings or sites, ignoring broader, less direct impacts or impacts on landscapes and other relatively big, loosely defined places.

DON’T WAIT to raise these issues until you’re ready to go to court.  If you can’t show that you raised them during the agency’s administrative process (that is, its project review under NHPA and NEPA), and got ignored or given short shrift, the court is unlikely to accept them as issues meriting a legal remedy.  So get involved in the review as early as possible in the process, be vigorous in pushing for proper consideration of your concerns, and DOCUMENT EVERYTHING.  You may hope you don’t have to go to court, but you ought to be prepared to.

Congressman Grijalva, Immigration, and What the "American People" Believe

A couple of days ago, Arizona Congressman Raúl Grijalva was on the PBS NewsHour, being interviewed about how he and other members of the House Progressive Caucus (You don’t hear much about THEM, do you?) liked the immigration bill passed by the Senate.  He very succinctly and pointedly said “not very much.”  He went on to summarize the following deficiencies – almost NEVER mentioned in most news accounts, even on PBS:

1.       Vastly more expensive than needed;

2.       Fortifying the border is an expression of paranoid fantasy; economic development on both sides of the border is what’s really needed (so people don't HAVE to cross); and

3.       It's a serious problem that the bill provides (as usual) for waiving all environmental impact requirements (NEPA, NHPA, etc.) in order to get that wall built and keep out the awful awful aliens.

I was so charmed to see a Member of Congress – a certified, card-carrying Fool on the Hill (albeit a democrat) – speaking (gad, is it possible?) TRUTH that I stumbled right up to my computer to send him an “attaboy” email.

And found that I couldn’t.  Representative Grijalva’s web site won’t accept emails from anyone whose zip code doesn’t show that they reside in his district.

It occurred to me that I’d run into this with other congressional web sites, and of course there’s some sense to it; a congressperson is primarily responsible to his or her constituents, so those constituents ought to have firsties in the email queue.  But on the other hand, the limitation deprives the member of the views and opinions of a broader range of citizens, who just might have something worth sharing. 

And it occurred to me that hearing only from one’s constituents helps account for the absurd drivel we’re constantly hearing from conservatives on the hill.  If you're from a conservative district, and your office accepts mail only from your constituents, I suppose you can come to believe that the “American People” insist on an assault rifle under every bed,  a Maginot Line along the border,  billions for prisons but nothing for education or food stamps,  no abortions and liberal (sic) application of the death penalty. 

Congressman Grijalva, I can understand letting your constituents go to the head of the email queue, but should you maybe have SOME easy way for other citizens to contact you?

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.