Reflections on a Visit to China, Part 1: Generalities

Introduction
With my wife, Pat Parker, I recently enjoyed a little under three weeks in the People’s Republic of China. At the invitation of the Chinese Academy of Social Sciences (CASS), Institute of Archaeology, I gave a paper in Beijing at the World Archaeological Congress (WAC) “Intercongress” on cultural heritage management in eastern and southeastern Asia, and we visited sites around Beijing, Xi’an and the mausoleum of emperor Qin shi Huangdi, often with the kind and knowledgeable assistance of Institute archaeologist Mr. Wang Renyu. On our own (with guides) we visited Hangzhou, Suzhou, Honcun, Xidi, Tongli, the Yellow Mountain Huangshan, and (briefly) Shanghai. I’m very grateful to Mr. Wang, CASS researcher Li Chunlin, Institute Deputy Director Prof. Chen Xingcan, and all their colleagues, as well as our China Odyssey guides, for making our visit a pleasurable and very educational one.

Three weeks in a country confers no expertise in its character, history, archaeology or culture, but there may be something to be said for first impressions, so I’m going to take this opportunity to offer a few reflections on our visit, for whatever they may be worth.

Environmental Matters

What they say about the air in Beijing is true. Within three days, the Navajo silver bracelet that Pat routinely wears had turned black (it cleaned up, though). Luckily (or maybe due to cloud seeding) there was then a thunderstorm and the sky turned clear and blue. But yes, pollution is a serious issue. However, there is apparently a serious effort underway to reduce emissions. For example, almost every rooftop seemed to sport a solar water heater. I saw few or no photovoltaic arrays, but lots of solar heating was going on. And while there are certainly too many gasoline and diesel vehicles on the (extensive and seemingly well-maintained) expressways, we also saw a vast number of bicycles, scooters, motorcycles and other vehicles driven by electricity, heavy use of public transport, and a lot of cars running on compressed natural gas.

As an inveterate recycler, I was charmed to see recycling bins almost everywhere, side-by-side with containers for non-recyclable trash, clearly labeled but often disguised as architectural forms compatible with historic structures, as rocks, as ancient urns, and in other clever ways. And lots and lots of people collecting discarded trash, moving huge piles of flattened cardboard boxes to collection points, and so on. The big cities we visited (e.g. Beijing, Shanghai) were remarkably clean, as big cities go.

I came away with no clear idea of how environmental impact assessment (EIA) is done. That it is done, somehow or other, was clear from, for example, an interesting paper at the Intercongress on archaeological survey and data recovery along a stretch of the humongous South-to-North Water Transfer Project (where, as here, “avoidance” of archaeological sites is apparently given precedence over excavation/destruction). Clearly studies are done and efforts are made to minimize and otherwise mitigate impacts, but it’s not clear to me how it happens, or what range of environmental variables are addressed. I’d like to know more.

Oh yes – and we rode the bullet train from Hangzhou to Shanghai the day after two similar trains collided not far away in Wenzhou City, and for what it’s worth, it was clean, pleasant, quiet, fully loaded with passengers, and really fast. And on time. I can’t testify to its safety, except to say that we survived, and enjoyed the ride.

Social-Cultural-Political Matters

We saw no particular evidence of oppression or repression (though there was no getting on Facebook, and one of the sites on which I routinely “click-to-donate” was blocked – doubtless because the donations go to Amnesty International). On the contrary, we were impressed at how many people we saw simply enjoying themselves – dancing, singing, and playing traditional instruments in the parks, in one case an apparently impromptu brass band of retirees playing patriotic music while people around them sang with seemingly unrestrained enthusiasm. We found people to be unfailingly gracious, friendly, and seemingly positive in their outlooks. And we were impressed at the volume of internal tourism we saw: thousands upon thousands of Chinese tourists crowding every historic or scenic site we visited, apparently having a good time and appreciating their country’s heritage. And having the disposable income to do so.

But in talking with some ordinary citizens, where language barriers permitted (neither Pat nor I, alas, speak Mandarin or any other Chinese dialect, and Rosetta Stone, while helpful, wasn’t enough), I was interested to encounter a lot of pretty frank expressions of unhappiness with corruption at high levels of government, inefficiencies, restraints on freedom of speech (especially as regards the Internet), and the growing gap between rich and poor. “Communism is dead,” one person volunteered; “all we have left is the Party.” And we crossed paths with one group of high Party officials getting the royal treatment at a couple of hotels where we stayed, to the disgruntlement of some around us. Of course, one could hear similar things expressed, and see similar kowtows to authority, in the U.S.

I couldn’t resist the impression, though – in the context of observing the incredible amounts of money being lavished on historic site development and internal tourism – that the government is pursuing a sort of bread and circuses policy: giving the people enough goodies to keep them off the streets, except when engaged in seemingly innocuous pursuits like tourism.

Cultural Heritage Management

Speaking of which: we were literally agog at the financial resources the PRC and its provincial governments are committing to aspects of cultural heritage/cultural resource management. At Xi’an, for example, the site of the Tang Dynasty (618-907 CE) Daming Palace – leveled hundreds of years ago and built over – has been cleared (relocating 100,000 or so people in the process) and developed as an archaeological park complete with a reconstructed monumental gatehouse, a scale model of the whole palace complex, an interactive archaeological museum (that even tries to explain field methodology!), and an Imax movie house showing relevant 3-D movies.

That’s before you leave town to go visit the first emperor, Qin shi Huangdi (aka Qin shi Huang, Qin Shihuangdi; 259-210 BCE) in his mausoleum, guarded by his terra cotta soldiers and horses. The terra cotta army as excavated so far is actually about a quarter mile from the mausoleum, in a very handsome park/museum complex incorporating the ongoing excavations. There are lots of soldiers, horses, and chariots, apparently, still to be uncovered, and who knows what else?

A quarter-mile away, the protected, still unexcavated mausoleum itself (bigger than the Great Pyramid of Khufu) and its extensive grounds have also become a park, with two museums under construction on the sites of major discoveries of burials, bronze chariots, armor, and other remarkable stuff. There are moves afoot to clear away nearby residential and industrial developments and expand the controlled area. All these developments are relatively recent; Mr. Wang showed me images from the early 20th century showing the whole area under agricultural use.

Xi’an is not unique in its attention to and investment in cultural and natural heritage sites. We saw similar investments being made in the interpretation and development of segments of the Great Wall, the Zhokoudian H. erectus site, river towns on the lower Yangtze, the Bund in Shanghai, and the Yellow Mountain Huangshan. All these places – most of them inscribed in the World Heritage List (and proudly advertised as such) were drawing vast, vast numbers of tourists, all paying fees for the privilege of visiting.

I was very impressed – mostly favorably – by all this investment, and all this interest. But the impression of bread and circuses continued to rattle around in my mind, and it generated another (though related) niggling worry as well. The history of China is characterized by a series of fairly autocratic imperial dynasties punctuated by peasant revolts. The uprising of 1989 that we associate with Tiananmen Square (where now a huge TV screen straddles the space, complicating assembly while inspiring with scenic and patriotic views but, I’m told, playing hell with the place’s feng shui) can be viewed as a recent unsuccessful example of the latter; the Cultural Revolution of 1966-76 was, in a twisted way, another such revolt. I had to wonder – viewing the magnificent cultural site developments, many of them seeming to glorify the imperial past (There’s a huge statue of Qin shi Huangdi – by all accounts not a very nice fellow – that greets visitors to the terra cotta army), and hearing people grumble about the rich/poor divide and the power of the Party – is the PRC government setting itself up for another revolt, and is “cultural heritage,” in the form of all these magnificent archaeological parks and similar developments, likely to become a target of revolutionary ire?

As it did, in many ways, during the Cultural Revolution. Countless times we were told: “There used to be a Buddhist shrine here, but during the Cultural Revolution….,” or “There was a handsome tablet here memorializing the ancestors, but during the Cultural Revolution….” I sat one day in the garden of a 19th century Qing Dynasty official, handsomely restored by his son in the early 20th century before he, the son (also a distinguished government official) was denounced and had to flee the country during the Cultural Revolution. The garden was classic – a complex of plantings, elaborate pavings, sculptures and stone constructions providing delightful vistas and enclaves. Many of the trees were marked with old marble slabs on which genus and species were inscribed in Chinese and Latin. I thought, “How beautiful, and erudite, and precious (in both senses of the word),” and – rather to my surprise – found myself kind of sympathizing with the Cultural Revolutionaries. I imagined them wondering, with sneering ire, where this aristocrat got off sitting around contemplating his beautiful garden and pondering the splendors of speciation when The People were suffering? It was an easy jump to imagining contemporary or near-future revolutionaries asking similar questions about massive investments in exhibiting the relics of past emperors.

Only after I’d left China did it occur to me to wonder whether anybody is pursuing the archaeology of the 700,000 workers said to have been involved in building Qin shi Huangdi’s mausoleum – along the lines of the recent exploration of the workers’ town associated with the Giza pyramids. It seems like some serious attention would be in order to the archaeology of the common people on whose labors the emperor (and every emperor) depended – both because it would be fascinating research and because it would convey a more populist, if not precisely communist, message to the visiting public about the glories of China’s past.

-- To be continued --

My Blather in Beijing

Here's the paper I'm scheduled to present next week in Beijing at the World Archaeological Intercongress on Heritage Management in East and Southeast Asia.  I'm grateful to WAC and the Institute of Archaeology in the Chinese Academy of Social Sciences for the invitation to do so.

Cultural Heritage, Environmental Impact Assessment, and People

Abstract: Environmental impact assessment (EIA) is the procedure by which the impacts of proposed construction and land-use projects are assessed and – in theory – made to influence development decisions. Cultural heritage tends to be poorly considered in EIA. Much of the blame lies with cultural heritage professionals. We tend to focus our energy on inscribing places in formal lists, and on debates about the formal interpretation of such places. We are too wrapped up in promoting the selective presentation and management of places that governments recognize as significant, and we too easily facilitate development schemes by excavating and thus removing sites that lie in their way. Most importantly we fail to engage the people of our countries, who alone have the power to redirect destructive development. We fail to engage them by failing to respect them and the places that they think are significant. Instead we insist that they respect our evaluations of places and our plans for management. We come to be seen as elitist, and as junior partners in the very development projects that destroy heritage. As junior partners we are easily ignored when conflicts arise between development and heritage, and the people who should be our allies in pushing back against destruction find us irrelevant to their concerns. We need to reconsider our priorities, and our methods of pursuing them.

Introduction: Assessing Environmental Impacts and Cultural Heritage

It is no secret that development projects of all kinds – housing and agricultural schemes, dams, highways, rail lines – do injury to the environment, however justified they may be on economic, social, and even environmental grounds. One has to destroy in order to build; it is in the nature of the enterprise. To control such damage, since the early 1970s virtually every national government, and such nongovernmental organizations (NGOs) as the World Bank, have put in place procedures for “environmental impact assessment” (EIA). The reason for such procedures is summed up in the Confucian’ maxim: “If you do not consider the future, you will be in trouble when it comes near.” Governments and funding bodies should consider what damage a project is likely to do before they decide whether and how to go forward with it. This is not to say that damaging projects should not be undertaken: only that if we know what damage is likely to occur, perhaps we can do things to keep it from happening, to reduce its severity, or make up for the damage somehow.

Of course, among the aspects of the environment that can be damaged by modern activities are what we call “cultural heritage.” We in this conference can probably all agree that potential impacts on cultural heritage should be closely examined in the course of EIA, that alternatives to damaging activities should be considered, that steps should be taken to avoid or reduce the damage. In general terms, the world’s people seem to agree; most communities react badly to actions that they perceive as damaging to their cultural heritage, and most governmental guidelines for EIA indicate that impacts on cultural heritage should be considered in planning.

Often, however, when EIA is performed on proposed projects, not much attention is paid to cultural heritage. EIA analysts merely list affected historic monuments or places included in the World Heritage List, and assert that these will be taken care of by following whatever standard procedures governments have put in place. Often the people and communities whose heritage is most at risk are poorly engaged in the process of EIA, their heritage values are poorly considered in planning, and the steps taken to mitigate impacts – decided on by project proponents and governments, if indeed any such steps are taken – are inadequate or even irrelevant to the people whose heritage is affected.

In my experience there are several common, interrelated reasons that cultural heritage is not addressed well in EIA. In this paper I want to outline some of these problems, and suggest steps that we might take to solve them.

Problem One: What is Cultural Heritage?

Different people conceptualize cultural heritage in different ways, and this complicates its consideration in EIA. In my own experience in the United States and the Pacific islands, and in reading the international literature, I find that cultural heritage is variously defined to include – or exclude (among other things) –

• Monuments, archaeological sites, and cultural landmarks;

• Traditional ways of using the land and its resources;

• Culturally important plants and animals;

• Stories, songs, philosophy and language;

• Traditional forms of subsistence;

• Traditional ways of life;

• Religious and cultural practices;

• Objects of material culture (artifacts, antiquities);

• Art forms, and

• Books, manuscripts, and other literary products.

Each of us academic and professional practitioners specializes in one or more of the above types of heritage. Most of us at this conference, in fact, specialize in a subdivision of the first type shown on my list: archaeological sites, which may also be thought of as historic places and/or landmarks. We understandably do not take responsibility for other kinds of cultural expression, other parts of the cultural environment. But here is the problem: we also often fail to inform those who plan and carry out EIA that we are not authorities on all aspects of cultural heritage. And we fail to recommend that they consult those who are authorities on cultural things other than archaeology, notably including the local people themselves. This results in assessments in which “cultural heritage” is equated entirely with monuments or archaeology, while the other aspects of culture are given little consideration or even ignored entirely. These aspects of the cultural environment may be just as worthy of protection as – even more worthy than – archaeological sites, and they may be much more the concern of local people, but if they are considered in EIA at all, they are often considered in spite of us rather than with our support.

Consider, for example, animals or plants that figure importantly in a community’s self-identity. I have been involved lately with the Okinawa dugong, significant in the beliefs of traditional Okinawans; the dugongs’ habitat is threatened by the proposed construction of a new U.S. military base. To those performing EIA on the project, the dugongs were simply animals of professional concern to biologists and natural resource managers. To the local people, however, the dugong is literally a sacred animal. Had it not been for legal intervention by Okinawan, Japanese, and U.S. environmental groups, and near-violent demonstrations on the project site by Okinawans, the cultural value of the dugongs and their habitat to the people of Okinawa would have been ignored in the military’s EIA and its decision making about the project.

Problem Two: The Limitations of Traditional Thinking About Cultural Heritage

EIA has developed as a widespread aspect of governmental and non-governmental planning only in the last half-century. The management of historic landmarks, monuments, and archaeological resources, of course, has a more venerable history, by some reckonings going back to the 10th century ACE and perhaps farther. Organized government systems for heritage management were being put in place in Europe by the early 19th century, and spread across the world with colonialism. So the ways archaeologists, architectural historians, and our close colleagues think about our aspects of cultural heritage were well set in place before EIA ever came on the scene. These ways of thinking feature the following more or less standard elements:

• A narrow focus on places: that is, buildings, other structures, monuments, and archaeological sites, and on portable antiquities;

• The compilation of official lists of heritage places, variously called registers, inventories, and schedules, among other things;

• An expectation that listed heritage places should be preserved unchanged in perpetuity;

• Little or no consideration given to places not on official lists, or regarded as eligible for them;

• Official governmental bodies that compile and maintain lists, and promote preservation;

• Laws and regulations aimed at protecting listed places to varying degrees, or at least at reserving to government the right to destroy them.

• More or less rigorous constraints on the private appropriation of heritage places, or of antiquities.

These standard elements are embedded not only in the legal systems of most nations, but in such international instruments as the World Heritage List. Even when we try to bend our minds around cultural things that are not archaeological sites and historic landmarks, we automatically apply our traditional ways of thinking. The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, for example, directs that signatory nations compile lists of intangible cultural heritage, despite the inherent fluidity and evanescence of intangible culture.

When this list-based, hierarchical, bureaucratic and rather rigid system of thought intersects with EIA, it further narrows the scope of impact analysis. Not only does EIA come to represent archaeological sites and landmarks as the only culturally significant aspects of an affected environment, it tends to recognize as significant only those sites and landmarks that government has officially declared and listed as such. In the United States, for instance – to hold up only my own country as a sad example – if a local community fears that a place it holds to have cultural significance may be destroyed by government action and wants it considered in EIA, it must show that the place is eligible for the National Register of Historic Places. This requires the community to explain the place’s significance to government archaeologists and architectural historians, following technical regulations issued by the National Park Service and understood only by specialists. In most EIA documents in the United States, if a place has not been found to be eligible for the National Register, it is assumed to be of no significance, and can be destroyed with impunity. And cultural heritage that is not embodied in places – animals, plants, belief systems, traditional food – has almost no chance of being considered in EIA. This strikes me, at least, as a strange way for a grandly self-proclaimed democracy to consider its impacts on the cultural values of its people.

Problem Three: Attitudes and Assumptions

When people conducting EIA seek to consider the cultural aspects of the environment, they understandably turn for advice to government’s cultural heritage authorities – ministries of culture, official archaeological surveys, agencies that maintain schedules or registers of cultural places and things. They assume that such authorities can advise them about – perhaps even provide them with a list of – significant cultural heritage that may be affected.

The cultural heritage authorities often have little understanding of EIA, but they do know their own programs, regulations, policies, and professional specialties. As far as they know, when they are asked to advise about cultural heritage, they are being asked to advise about what is on their lists, what they are officially responsible for, or what falls within the ambit of their professional expertise. They advise about archaeological sites, scheduled monuments, registered buildings. What they almost certainly do not advise about is how to interact with local people, local communities, to find out what they think is important and what they think ought to be done about it. That sort of engagement has never been part of the portfolio of most government heritage offices, and few of them are staffed, funded, trained or encouraged to promote such engagement.

Presuming that they now know what cultural heritage may be involved, the people conducting EIA duly report it and proceed to analyze environmental impacts without further consideration of culture. If local people and other interest groups then object – perhaps violently – to what they think the project will do to their heritage, it often comes as a surprise to the project’s proponents and their EIA specialists (and perhaps to the cultural heritage authorities as well).

Government, Culture, and People

This situation is fundamentally unfair and counter-democratic, and it undercuts our efforts to preserve cultural heritage. Surely it is true that only the citizens of our countries, only the people, have the power to redirect and control destructive development, but our traditional ways of managing heritage disconnects us from the people. By focusing attention only on the kinds of heritage that we understand and appreciate, we fail to engage the people. By failing to respect them and the things that they think are significant, by insisting instead that they respect our evaluations of heritage, our ways of discussing it, and our plans for its management, we cause ourselves to be seen as elitist and irrelevant to the people’s interests. This leaves us in a relatively powerless position when confronting the development projects that destroy heritage. We become, in essence, junior partners in such developments, and as such we are easily ignored when conflicts arise between development and heritage.

Ironically, failing to engage the people and address the heritage they value can also impede development projects. I have personally seen important, highly justified projects held up for years, at very high cost, and sometimes abandoned altogether, because of last-minute controversies over locally valued cultural heritage. These controversies often could have been avoided or efficiently resolved had affected people and communities been respectfully consulted, early in project planning.

I suggest that it is in everyone’s interests – the interests of governments, of archaeologists and other heritage professionals, of our institutions and agencies, of communities world-wide, and of the development community, to make EIA more sensitive to cultural heritage, broadly defined, and notably to the cultural values of local communities. Interestingly, a way to do this has been offered, not by us cultural heritage experts, but by biologists.

The Akwé: Kon Guidelines

The Secretariat of the Convention on Biological Diversity – a convention to which China and other Asian countries are signatories but my country, I am sorry to say, is not – has produced a sophisticated set of guidelines for considering cultural heritage in EIA. These guidelines are called “Akwé: Kon”(“Ahgwégoh”) a term in the language of the North American Mohawk tribe meaning “everything in creation.” They outline how to conduct social, cultural, and environmental impact assessments in concert with affected communities.

A government or NGO planning some form of land-use – say a dam, a highway, an agricultural or urban revitalization scheme, or a power plant – that is conscientiously following Akwé: Kon would actively and creatively engage local communities in every aspect of project planning. It would work with such communities to identify who speaks for different cultural interests. It would learn how to communicate with these groups, find out and record their concerns and negotiate ways to address those concerns. In doing so, it would make sure that affected groups have the financial and other resources necessary to participate fully in impact assessment and decision making. It would negotiate and put in place agreements with the communities about how the impacts of the project would be identified and considered. Following such agreements, it would conduct cultural impact studies addressing the project’s possible impacts on, for example:

…cultural heritage, religions, beliefs and sacred teachings, customary practices, forms of social organization, sys¬tems of natural resource use, including patterns of land use, places of cul¬tural significance, economic valuation of cultural resources, sacred sites, ceremonies, languages, customary law systems, and political structures, roles and customs.

(Secretariat of the CBD 2004:13)

The scope of such studies would take into account:

(a) Possible impacts on continued customary use of biological resources;


(b) Possible impacts on the respect, preservation, protection and mainte¬nance of traditional knowledge, innovations and practices;


(c) Protocols (negotiated with communities);


(d) Possible impacts on sacred sites and associated ritual or ceremonial activities;


(e) Respect for the need for cultural privacy; and


(f) Possible impacts on the exercise of customary laws.

(Secretariat of the CBD 2004:14)

The government or NGO would carry out environmental assessments coordinated with the cultural assessments. These would “respect existing inherent land and treaty rights as well as legally established rights of indigenous and local communities” and “con¬tribute to the protection of the rights of indigenous and local communities by recognizing (their) distinct activities, customs and beliefs…” Such assessments would consider, among other more strictly eco-biological factors:

• areas of particular economic significance (as hunting areas and trapping sites, fishing grounds, gathering areas, grazing lands, timber harvesting sites and other harvesting areas);


• particularly significant physical features and other natural factors which provide for biodiversity and ecosystems (e.g. watercourses, springs, lakes, mines/quarries that supply local needs); and


• sites of religious, spiritual, ceremonial and sacred significance (such as sacred groves and totemic sites).


(Secretariat of the CBD 2004:16-17)

Coordinated social impact assessments would:

…. take into account gen¬der and demographic factors, housing and accommodation, employment, infrastructure and services, income and asset distribution, traditional systems and means of production, as well as educational needs, technical skills and financial implications… and evaluate …. tangible benefits to such communities, such as non-hazardous job creation, viable revenue from the levying of appropriate fees from beneficiaries of such developments, access to markets and diversification of income opportunities.

(Secretariat of the CBD 2004: 18)

Economic assessments would recognize that:

…changes to traditional practices for food production, or (that) involve the introduction of commercial cultivation and harvesting of a particular wild species (e.g. to supply market demands for particular herbs, spices, medicinal plants, fish, fur or leather) may lead to pressures to restructure traditional systems of land tenure or expropriate land, and to pressures on the sustainable use of biological diversity, in order to accommodate new scales of production. The ramifications of these kinds of changes can be far-reaching and need to be properly assessed, taking into account the value systems of indigenous and local communities. Likely impacts associated with the cultivation and/or commercial harvesting of wild species should also be assessed and addressed.

(Secretariat of the CBD 2004: 19-20)

The results of all these assessments would be brought back to the community and coordinated with its own planning, in a transparent, consultative manner, with provision made for the resolution of disputes (Secretariat of the CBD 2004:22-25).

Opting for Akwé: Kon

An EIA system based on Akwé: Kon would not discourage consideration of things like World Heritage sites and places or things listed in a national schedule or register, but it would recognize that those who are fixated on such places – that is, let’s admit it, many of us – constitute only one set of cultural stakeholders, whose values are not privileged over those of others, notably including local people. It would be significantly more democratic, more transparent, more inclusive than most existing systems. It would also, I think, produce a higher degree of predictability for development project proponents than they currently enjoy.

Adopting an Akwé: Kon based system would require administrative, legislative, and policy actions of different kinds, depending on the nation or NGO involved. In the U.S., unfortunately, it would require action by our legislative bodies, which is very unlikely to happen. In nations with less fossilized EIA and cultural heritage systems than ours, and among NGOs and even private-sector development proponents, there is probably much more hope.

I have no magic formula for replacing the world’s ineffective cultural heritage systems with something like Akwé: Kon, and I certainly have no wisdom to impart. My purpose here today is just to suggest that many of our existing systems for relating cultural heritage to EIA are self-defeating, and to suggest that we consider such creative alternatives as Akwé: Kon. I hope that WAC and other cultural heritage organizations, and the smart young people who are rising to leadership in such organizations, will undertake this consideration.

Gail Cohen’s Comments on the Cape Cod Dune Shacks: An Example

Introduction

I post the following comments with their author's permission – the original addressed to the Superintendent of Cape Cod National Seashore – for a couple of reasons.

First, the case of the Dune Shacks is really a classic. The Shacks, which have been occupied by a self-defined community of non-conformist artists, writers, and other assorted ne’er-do-wells for generations, is obviously a traditional cultural property (TCP) by any reasonable definition, has and has been found so by repeated studies into which the National Park Service has thrown good money and bad. But NPS won’t agree that they're eligible for the National Register as a TCP; no, no. They are eligible, says NPS (and indeed are on the Register), but simply as pieces of interesting vernacular architecture with historical associations but no links to the living community's cultural identity. The Register staff itself have gone along with this, as they regularly do when it's NPS making the outrageous determinations (How could they do otherwise, and expect to coast untroubled on through to retirement?). 

Why is NPS so up-tight about the matter?  Apparently because it perceives, with some justification, that if the Shacks are viewed as a TCP, its representatives would have to (horrors!) consult with the Shacks’ residents and friends about their management, and perhaps not have the free hand it wants to have in evicting people and wasting tax dollars on prettying the Shacks up for tourists. 

My second reason for posting Gail’s comments -- which apparently relate to a currently proposed NPS plan for the Shacks -- is that they’re exemplary of the form in which comments often come in from concerned, knowledgeable, impassioned citizens in cases like this, and the form is likely to cause public servants in agencies and SHPO offices to throw up their hands in despair. The comments are longish and rather rambling. They assume a considerable level of knowledge on the part of the reader about the place, the case, the situation, the issues, the individuals involved. They assume that the reader has been paying attention to the nuances of the case.

All reasonable enough assumptions for a citizen to have, one might think, and we oughtn't expect concerned citizens not to express their concerns, in their own vernacular.  But for the SHPO staffer trying to juggle a hundred simultaneous cases while his or her job is threatened by budget cuts and he or she is being burdened with a thousand kinds of administrivia, it has to be enough to cause hair-tearing and the temptation to toss the whole thing into a file and forget it. It’s to the considerable credit of the Massachusetts SHPO that they’ve not done this; they keep poking NPS about the matter.  I suspect, however – no, I know – that in other cases such tossing and forgetting is exactly what pretty routinely happens. It’s a problem that preservation authorities ought to attend to, if they expect to build and maintain public support.  At the same time, members of the public ought to try to remember that they're trying to communicate with real, overworked people, and try to make it as easy as possible for those people to get the point that they're trying to make.

Tom

Public Comments (number 50 or so). DUNE SHACKS - Historic District Preservation and Use
Plan Etc. By Gail Cohen


Maria Burks put a hold on years of Injustice to the Dune Dwellers, Betrayal to the Citizens of Cape Cod, and to Provincetown concerning the promises made to the People in the Hearings that led up to, and in the Legislation that created the Cape Cod National Seashore. Maria let the Dune Dwellers stay when their stipulations ran out - the Tasha’s, Lawrence Schuster, and Zara Ofsevit Jackson in 2005.

George Price to this date refuses to attempt to make the National Park Service more Just, but he Could - as could any one in the National Park Service, any Congressman or Senator, and the Secretary Of The Interior. The person who does this would be a Hero or Heroine.

They could never erase the pain of the Dune Dwellers since 1961, those evicted, those harassed, and those who had their Dune Shacks (cottages) destroyed by the Cape Cod National Seashore. They could never erase the pain of the American Taxpayer over the Millions of dollars spent litigating the Dune Dwellers, the numerous public comment periods, reports, outside consultants, battles over the eligibility of the Dune Shacks to the National Register Of Historic Places, and that of the Traditional Cultural Property where the CCNS went against the recommendation of the person hired to make that determination.

It is high time that the Cape Cod National Seashore, and National Park Service start telling the Truth about the Dune Shacks (cottages). Not only has this continually been withheld, as evident in the recent released Listing of the Dune Shacks on the National Register for which no one from the Public or Dune Dwellers were allowed to speak to the outside consultant (PAL) that did the Listing, but the CCNS has directly lied to the Press telling them that none of the Dune Dwellers had any Property Rights when the last three law cases proved property rights, and others had deeds whose dune shacks were moved from their tracts due to the nature of the dunes, and peril of falling into the sea.

The only real dune dwellers are those whose dune shacks and property were taken by Eminent Domain in 1969, and 1971. Every thing concerning the Dune Shacks should have this FACT included. No One handed their dune shack over to the Cape Cod National Seashore. The Braaton’s did loan their dune shack to the U. S. Navy during WWII which threw out Eugene O’Neill’s sink, as much of the dune shack was salvage from the Peaked Hill Coast Guard Station where O’Neill lived that fell into the sea. Even though this was long gone, the O’Neill Estate property - over 50 acres was taken by Eminent Domain when the rest of the dune shacks and property were taken by the National Park Service.

However, one dune dweller who sold the CCNS land was allowed to stay - except for a cement foundation his dune shack was as all of the others. His was destroyed, so one was built on his Father’s property. One has to wonder why his was declared Improve Property, when the others who had deeds and proved their property rights in court were not . To understand this one only has to look as to why a Congressman was allowed to stay in Cayuga Recreation (National Park) when all others were forced out.

CCNS refused to let me speak to Bob Wolfe. I did the last day when he presented his findings which was the first time recognized that the CCNS destroyed many dune shacks on purpose - Tony Vevers when he was away teaching, 2 of Ozzie Ball’s, 2 of Grace Bessay’s - one in which the CCNS forced her to pay for its destruction, Carl Tasha’s, 3 of Pat Patricks, others that the fire department were given as fire practice, and Charlie Schmid’s that was bulldoze, and Herbert Olson had one protester actually picked up by the bull dozer. The dune shack was left in rubble for a year on the dunes inspiring the creation of Peaked Hill Trust by outraged citizens.

The Fleurant, Watson, Jones, and the Boat House were allowed to rot. The CCNS was to be cited for Demolition By Neglect. That is why they were allowed to be leased due to the extensive repairs that had to be made. Otherwise, they would not have been occupied. Even though the CCNS was mandated in 1989 to maintain the dune shacks once they were declared eligible for the National Register - the dune shacks were leased, and all of the owners which they were called had the full burden of maintaining them. I have often talked about Leo Fluerant’s jeep buried in the sand with the top of the jeep sticking out reminding me of the Statue Of Liberty in the film PLANET OF THE APES.

James Killion of the CCNS once he retired admitted that he did not even tell many of the dune dwellers that instead of Life, the stipulations could be for 25 years. Frenchie Chanel would not sign her stipulation until it was added that her daughter could have the dune shack for her lifetime which they did include. Yet, the Chaplins had to spend 18 years in court to get the exact same stipulation for their children as the NPS would not pay them what they were owed for their property claiming they had no money, though David Adams was paid the hundreds of thousand of dollars owed to him as their properties are oceanfront. All 3 dune dwellers who remained in court wanted to stay in their dune shacks only.

In Grace Bessay’s Historic law case (the oldest individual Federal one in America) the judges kept saying NO PUBLIC UTILITIES. Under the legislation that created the Cape Cod National Seashore the dune shacks only had to be in accordance with local zoning laws which they were. Instead the courts applied the Federal definition. The U.S. Court of Appeals did not even care that the dune shacks had just been declared eligible for the Historic Register in which public utilities were not allowed. Grace Bessay proved her property rights, but as in the other dune shack law cases, except for Conrad Malicoat they were not declared Improved Property. In the Legislation that created the Cape Cod National Seashore the dune shacks are listed as Improved Property.

George Price likes to state that the Dune Shack Stipulations which all were forced to sign will be enforced. Yet, Herbert Olson, a former Superintendent went against the stipulations for Hazel Hawthorne Werner’s dune shacks by allowing Peaked Hill Trust as an experiment to use Hazel’s two dune shacks while she was still alive.

The stipulations as do most state for residential use only. Later stipulations did not allow dune dwellers to rent for less than 90 days, or at all. Yet, all the 3 non-profits are allowed to rent out the 6 dune shacks given to them, or allowed for a large sum of money. Ironically, this was the reason given by the Keeper of the Register in denying the dune shacks Traditional Cultural Property status - that the non-profit stays were temporary. Peaked Hill Trust was founded because the Cape Cod National Seashore was destroying, and intended to destroy all of the dune shacks. There is not one word about Dune Shacks in their original Charter. They did initiate the Historic Register status, however the dune shacks were saved in 1989 by the efforts of many, and Beth Savage at the National Register. I saved the 3 that were allowed to rot by the Cape Cod National Seashore, and eventually were leased under historic leasing agreements.

That this report and the Historic Register Listing calls the Fuller-Bessay Dune Shack the Al Fearing Dune Shack is ridiculous, and directed at Peter Clemons and his Family as well as Grace Bessay who was in court for 23 years. Grace was evicted 3 times. At the 11th hour an agreement was reached. The Supreme Court would not hear her law case. This was wrong, and what happen to Grace has happen to many all over the country by the National Park Service. Change the name of this dune shack which has been on all of the owner/occupancy lists since the 1960’s. It should be done immediately. It was Dorothy Fearing who testified in Grace Bessay’s law case on her behalf.

It is clear that the Cape Cod National Seashore, and the National Park Service CONTINUE to destroy dune shack culture, and ignore the findings of Bob Wolfe. It is clear that the National Register of Historic Places needs to be removed from the National Park Service which is totally political, and does the bidding of the NPS. The Keeper of the Register refused to sign the eligibility statement in 1989 which is why Beth Savage had to sign it. Paul Loether refused to say what was the recommendation of his Staff when the Keeper at the time, Janet Matthews denied Traditional Cultural Property Status. NPS and the National Register claimed there was NOTHING in writing about the above when I filed for Freedom of Information documents. The conclusions of the Consensus Building Institute which were paid over $100,000 were the Exact Same as those reached in 1991 by the Dune Shack Subcommittee of the Advisory Commission of the Cape Cod National Seashore. The highlight of injustice is George Price making sure that he is not responsible for choosing who remains in the dune shacks, and had the rule changed so that it will be the NE Regional Office, and the Director of the National Park Service who will decide.
I have been involved now for 23 years in the dune shack/dune dweller issues. At every turn there has been injustice, lies, false and incomplete information. It is not the Dune Dwellers problem, but that of the American Taxpayer, and all citizens of Cape Cod who have been betrayed by the Federal Government. Promises were not kept, nor was the 1961 Legislation adhered to over the years. The Cape Cod National SEASHORE has been treated like all other National Parks. It was not suppose to be.

If there is any brave person out there, or George Price wants to be known for something good - I am submitting what little Justice can be gotten NOW. Even though Senator John Kerry claimed in a press release that the Dune Shacks Were a Traditional Cultural Property, he was ignored and there was no appeal at all allowed by the Keeper of the National Register. The only real solution for the Dune Dwellers can come from simple Legislation as that of Mineral King Permit Cabins, or by the Secretary of the Interior who should have in the 1960’s declared all of them Improved Property. Those at Mineral King have no property rights at all, but were allowed to stay, and pass them on to their families and heirs. This has to happen to sweep away decades of INJUSTICE. It is way too late for those who suffered the most now dead. A little Justice though can be had if someone has the courage to right the wrongs of the National Park Service and Cape Cod National Seashore.

HARRY KEMP IS WATCHING. The following should be implemented:

1. Jean Miller Cohen Dune Shack - I have no objection to the Provincetown Community Compact keeping this dune shack. However, if relatives of Jean Cohen or heirs exist they should have a week or two weeks. Please note that because this dune shack was in the Province Lands, Jean Miller Cohen got only a 15 year stipulation. The State did not recognize squatter rights. Her heirs had the dune shack, and were evicted. One died, but if the other one is still alive he should have a week or two at the dune shack. I have been told that Bob Wolfe put in his report that it was the Gail Cohen dune shack. This is untrue, and I am not related to Jean Cohen.

2. Leo Fleurant Dune Shack - Emily Bebe, and Evelyn Simon spent thousand of dollars rehabilitating this dune shack that had been left to rot by the Cape Cod National Seashore. They should be allowed to stay, and their lease renewed for a long term.

3. David and Marcia Adams Guest Cottage - The Adams family should be allowed to stay, and have use of this cottage.

4. David and Marcia Adams Dune Shack - The Adams family should be allowed to stay. They have total property rights, and were paid over $400,000. However, all of the dune shacks are Improved Property and were thus should not have been TAKEN. Just for keeping them in court for so many years, they should be allowed to keep the money. A way to pay back is documented in the film FOR THE COMMON GOOD, when the residents of Cayuga National Recreation Center (now changed to Park) were evicted, and paid for their property when they thought the Secretary of the Interior were going to let them stay. I have been told that after throwing these people and businesses out that new ones are in that Park which was also not to be treated like all the other National Parks.

5. Hazel Hawthorne Werner Dune Shack - Euphoria -- I have no objection to Peaked Hill Trust keeping this dune shack. However, only if they tell everyone they rent to about Hazel. Also, as soon as Aaron Avellar died - his wife Anna and sons were no longer given their week or two in Hazel’s dune shack. This time in Hazel’s dune shacks needs to be reinstated immediately. In addition, last time I spoke with Sue and the Uffords - Hazel’s other relatives - they had never been picked for the PHT lottery. A week or two should be set aside for them in one of Hazel’s two dune shacks.

6. Hazel Hawthorne Werner Dune Shack - Thalassic -- Same as Above. I will add that Hazel’s family is not happy at all with Peaked Hill Trust. The relationship is strained due to how the family was treated. I am annoyed that when Hazel late in life tried to go to her dune shacks - PHT was not able to get her up there though they tried. They should have succeeded.

7. Boris Margo and Jan Gelb Dune Shack - This dune shack should never have been given to Peaked Hill Trust. Murray Zimiles helped Boris build the dune shack. He paid the taxes when letting PHT use it before Boris died. He, and the entire Family are artists. Though Dawn Zimiles works at the Fine Arts Center run by Hattie Fitts, they have never spoken about the pain of the Family losing the dune shack. Murray Zimiles applied for it, and the CCNS instead gave it to Peaked Hill Trust. This was wrong, and needs immediately to be rectified. Murray was given two weeks at the dune shack by Peaked Hill Trust. They then reduced it to one week. This dune shack needs to go back to Murray Zimiles who can then decide if PHT can rent the dune shack when the family is not using it. The Family has a close relationship with the memory of Boris and Jan.
8. Harry Kemp (Tasha) Dune Shack - Harry Kemp willed his dune shack to Carl Tasha. Coastguardman and Provincetown Player Frank Henderson had given him the dune shack in writing. Due to his being underage, the dune shack was obtained by his Mother - Sunny Tasha for the Family. Carl was a brilliant artist and sculptor who also made jewelry though PAL did not mention him in the National Register Listing. Sunny Tasha was a Provincetown Icon who had survived the Johnstown Flood. Of course, the Tasha Family should remain in this Dune Shack, as should the upcoming generations. If the Tasha’s had remained in court, they would have proven their squatter rights. Their lawyer told them to drop out when the Justice Dept. lawyer said to him, “We are going to get those asses out of there”.

9. Zara Malkin Ofsevit Dune Shack - Though Zara has in recent years let Peaked Hill Trust rent her Dune Shack - she has told me that she would give any thing to get it back, and be able to do what she wants with it. Zara’s Mother (

Alice Malkin) purchased this Dune Shack from a Provincetown City Clerk. There is a deed, and Zara is the rightful owner and heir. This dune shack had to be moved off the deeded tract. Zara should decide who gets to have her dune shack in the future.

10. Nicholas and Ray Wells Dune Shack - Ray Wells purchased this Dune Shack and 50 acres from Eugene O’Neill’s wife Carlotta Monteray. There was a deed. When Ray was away, the dune shack was moved by the caretaker off of the deeded property to maintain it from erosion. It is Ray Wells Dune Shack, and at 103 Ray is living for that dune shack. She did not even want PHT to rent the dune shack until her death, though Joyce Johnson was allowed to maintain it along with Peaked Hill Trust. Ray should be allowed to decide who gets her dune shack after she is gone. If the Watson Dune Shack is not given to Joyce Johnson - this one should be given to her, along with Peaked Hill Trust to maintain it.

11. Andy Fuller and Grace Bessay Dune Shack (It is Not the Al Fearing Dune Shack) - I don’t care what you do with this one. However, Peter Clemon’s children are innocent victims and have grown up on the dunes. The dune shack should be given to them in 2016. PAL neglected to state that Peter Clemon’s is an artist. Grace Bessay fought for her way of life, and her property. That should be Honored.

12. Jeanne Chanel (Frenchie) Dune Shack - Frenchie Chanel was also an artist. When one went into Town Hall on the right hand wall was her painting MY DUNE HOME. I have a photo of Maria Burks in front of it. It was her Dune Home, and her daughter Adrienne (Shatzi) should be able to decide who gets it after her death. Originally, she wanted it to go to a relative who I believe is no longer alive. It should be her decision alone.

I do not know of the arrangements she made with the Del Deo’s. I do not want to know. If Shatzi wants the Del Deo’s to have it after she is gone fine. I have been told that the Del Deo’s son wants the dune shack. However, as far as I know he has never done any thing, or been involved in any of the Dune Shack issues. Though involved in a messy divorce, Andrew Clemon’s was also in one but has participated. The Del Deo’s son too is a prominent artist, and they have a daughter.

The one thing to note is that the Cape Cod National Seashore, and National Park Service has cause agony to Schatzi who loves that dune shack. After the war it gave her and her Mother peace. She has let Josephine Del Deo deal with the dune shack, though she did come to several meetings in the past. The pain has been too great.

13. Theodore and Eunice Braaten Dune Shack - This dune shack is one of the most sad stories up on the dunes. The National Park Service stopped Special Permits which the Braaten’s had one. This was at the same time they stopped the Special Use Permit for the Provincetown Landfill (Transfer Station). Since Special Use Permits have been reinstated. The Braaten’s purchased their dune shack. The land was owned by the sand company, yet the Braaten’s paid all of the taxes. All of a sudden when the Braaten’s were in their 90’s and still using the dune shack their Special Use Permit was not renewed. Eunice called me in tears. It remained empty until Lawrence Schuster had no place to live, and Eunice asked him to take care of the dune shack for them. This was totally illegal at the time since there was no Special Use Permit which was renewed annually. Eunice gave Lawrence a place to live from her own generosity.

For awhile, Lawrence let the Braaten children or grandchildren visit - then stopped. When Ted Braaten died at age 103, Lawrence was evicted. Before the eviction was carried out, Maria Burks decided to let Lawrence stay going against the Braaton stipulation. I have no objection to Lawrence who continues the tradition of year-round living on the dunes, but only if he allows the Braaten grandchildren time in the dune shack when he is not at home. The dune shack is rightfully theirs, and this should be done while David Braaten who grew up on the dunes is still alive. The Grandchildren who I have talked to want to visit the dune shack and claim their rightful heritage. If Lawrence does not allow them access, the dune shack should revert back to the Braaten Family.

14. Margaret (Peg) Watson Dune Shack - When wills were allowed by the CCNS, Peg Watson willed her dune shack to Charlie Schmid. Charlie in turn willed it to Joyce Johnson and another woman who helped him in his later years. They should be given the dune shack which is rightfully theirs. Peaked Hill Trust can also share it, as Joyce does not want to be totally responsible for the maintance. Julie Schechter’s (Peaked Hill Trust) Sister has no right to it whatsoever though I appreciate the fact that she lets Joyce use it in the Winter. The Dune Shack belongs to Joyce Johnson, and it is high time she had it. Joyce has Charlie Schmid’s ashes, and deserves this dune shack. She needs it now in her later years, and for the artist that she is.

15. Randolf and Annabelle Jones Dune Shack - Another sad story. Randolf and Annabelle loved this dune shack. Their ashes are there, and were upset by the current occupants from where they had been placed. Michael Sperber was willed Charlie Schmid’s dune shack which all of its unique 3 stories had been destroyed by the Cape Cod National Seashore. The Jones said Michael could have theirs. Michael’s children grew up in that dune shack. When Randolf Jones died, Michael Sperber was evicted. Michael Connelly, MA. Secretary of State had written that there were to be no more Evictions from the Dune Shacks. This was ignored, and has continued to be ignored except for Lawrence Schuster.

The dune shack rightfully belongs to Michael Sperber and his Family. At first, Marcia Dunn wanted to contact Michael to learn about the Jones. The Dunn’s, friends of the Fitts were allowed to lease the dune shack. At a meeting last year, Scott Fitts belligerently said he would not let Michael use the dune shack. This dune shack should immediately be returned to Michael Sperber and his Family. In addition, Randolf Jones left $25,000 for the maintenance of the dune shack. The CCNS rejected this gift, which instead went to the Jone’s church. The CCNS lied that they had not been told of this gift earlier, but Randolf had written them about it, and it had been received.

16. David and Connie Armstrong Dune Shack - The Armstrong children should have this dune shack when their parents die. They had to drop out of court due to the expense, and raising a family. The daughters are the rightful heirs.

17. Stanley and Laura Fowler Dune Shack - Another sad story. Since Peter Clemons has not been forthcoming with me about his arrangement with Laura Fowler, this dune shack should be given to the Fowler children. Immediately, the Fowler’s furniture, stove etc. should be moved back in. They should have never been ordered to be taken out by the CCNS. The Clemons should remain as caretakers as Laura Fowler may have had an issue with one of her children not taking care of it the way she wanted. Peter Clemon’s and his Family were evicted from this dune shack after Laura Fowler died, even though all the others were allowed to stay when stipulations were over - and George Price pledged that all would remain the same until the final dune shack use plan. This was wrong. Many dune dwellers had two or more dune shacks. The Provincetown Community Compact has no right to it, though except for the high rent I have no objection to them using it. I do object to how CCNS handled this, and the heartache it brought to the Fowler children and the Clemon’s Family.

18. Tony Vevers Dune Shack - Destroyed on purpose by the Cape Cod National Seashore. This dune shack was given to the Vevers by the son of Heinrich Pfiffer who had owned the Artist Theatre on Pfiffer’s Wharf which became the Provincetown Playhouse On The Wharf in 1940. Tony Vever’s wife and daughter should immediately be allowed to rebuild their dune shack on the property. Peaked Hill Trust has offered to build it for them. All of the Vevers are well known artists, and Tabitha Vevers has an art gallery in Provincetown.

19. If the Patrick Family wants to rebuild they should be allowed to do so. And since also Carl Tasha’s dune shack was destroyed while he was away at college, the Tasha Family should be allowed to rebuild it given that the family is a large once.

20. Given that the stipulations that ended in 2005 were allowed to continue staying in their dune shacks - this is a precedence for allowing ALL of the Dune Dwellers another 6 or more years. Meanwhile leases that expired were also renewed in recent years. You and NPS can’t give 6 or more extra years to some, and not to the other Dune Dwellers.

Gail Cohen
St. Petersburg, FL. 33710

Making the Section 106 Regulations More Effective and Less Burdensome

Here are my June 2 comments in response to the

Advisory Council on Historic Preservation's request for advice

(See http://www.achp.gov/EO_13563.pdf).

Dear ACHP:


I'm writing in response to your notice of June 1, requesting public comments to assist with your retrospective review of the effectiveness of the NHPA Section 106 regulations. My comments are organized with reference to the nine questions you posed.

1. How should the ACHP periodically review its regulations to ensure they are serving their stated purpose efficiently and effectively? Please provide specific recommendations on appropriate outreach and timing.

The first step would be to rework the regs to make them much simpler and easier to understand (see below). Until that's done, it's going to be very difficult to "review" them in any meaningful, transparent way, because only specialists will understand them and be able to participate in review. Having reworked and simplified them, I'd suggest asking some outside organization -- NOT a preservation advocacy group like the NTHP, or an industry organization, or a contractor's lobby like ACRA -- to put together a stakeholders' group every 5 years or so to review the record of consultations and make recommendations. This might be a job for the Institute for Environmental Conflict Resolution. Of course, this review should be coupled with general public review and comment, and there should be some process for bringing the review to an actionable conclusion.

2. How can the ACHP reduce burdens and maintain flexibility for participants in the Section 106 regulatory process in a way that will promote the protection of historic properties?

First, and without the need for any regulatory or statutory changes, do the following:

a. Insist that the ACHP staff focus on serious issues and cut the crap. We should not, for example, be troubled in the process by wet-behind-the-ears ACHP staff members insisting that we really have to focus on avoidance before minimization before mitigation. If this requires re-educating your legal staff, do that, too.

b. REALLY beat up on agencies, SHPOs, and NPS as the SHPOs' overseer to focus attention on 36 CFR 800.3, initiating review. Try to get them all to understand that the process needs to start early, and that early consultation necessarily entails a degree of ambiguity about project plans, effects, and affected properties. Try to get them to understand that review really is supposed to be an open, public, consultative process, and that among the very first things an agency's supposed to do -- and an SHPO ought to help agencies to do -- is to identify and engage consulting parties.

c. Insist that NPS re-think the standards by which SHPO performance is judged; at the very least, the nonsense that SHPOs are required to keep track of should be consistent with the current regulations, not those left over from the 1980s. Try to get them to understand that however much they may be in love with National Register nominations and equivalent forms of hyper-documentation, these are seldom useful in real-world planning, and are not required by the regulations.

Preferably, however, change the regulations, and even better, seek changes in the statute (see below).

3. How can the process set forth in the Section 106 regulations better achieve positive preservation outcomes?

The question implies that the process is SUPPOSED to result in "positive preservation outcomes," and that strikes me as not necessarily true. It's also very ambiguous: "positive" in whose eyes? Have you forgotten that the ACHP is ON Historic Preservation, not FOR it? The process should be aimed at achieving outcomes that are broadly accepted as being in the public interest; it should NOT be aimed at achieving some abstract measure of historic preservation goodness. This being (I think) the case, the process should be revised to make broad, early, systematic consultation much easier to do, with truly meaningful participation by all parties, aimed at reaching agreed-upon results. In other words, it should emphasize what makes Section 106 review nearly unique in the federal system -- consultation -- and de-emphasize a lot of the fol-de-rol that inevitably comes into play when one insists on seeking "positive preservation outcomes."

4. How can the regulations be better harmonized with other federal environmental review procedures, such as the National Environmental Policy Act?

By actually relating to them. Presumably CEQ is going through an exercise similar to the ACHPs, so there may perhaps be opportunities for mutual revisions of regulations to make them more compatible. The ACHP ought to work on CEQ to get it to adopt a consultation-based approach to NEPA review, and then embed 106 review within it.

5. How can the ACHP ensure that the Section 106 regulations are consistent with and coordinated effectively with other regulations promulgated by the National Park Service pursuant to the National Historic Preservation Act?

Like what? I'm afraid there is a subtext here: "NPS good; cannot be questioned; ACHP must be consistent with good NPS, otherwise ACHP bad." BS. NPS regulations need fixing just as much as the ACHP's do, and NPS has shown brilliantly over the last several decades that its only coordinative capacity lies in its anatomically impressive ability to pat itself on the back. Your review should include review of all NPS regulations that relate in any way to Section 106 review, and you should make recommendations as to how THEY can be made less burdensome and more effective. NPS can then happily spend the next decade or so ignoring them.

6. How can the ACHP ensure that information developed to support findings under the regulations is guided by objective scientific evidence?

OK, I know that's in the Executive Order so you've got to address it, but it's really only marginally relevant. Trying to find "objective scientific evidence" as the basis for findings about, say, visual effects on the ambience of a historic district is like trying to catch a will-o'-the-wisp in a jar. It's a waste of time and will just frustrate everyone -- AND tend to make the process inaccessible to the public, which mostly is not made up of scientists, is not objective, and doesn't necessarily judge "evidence" the way scientists do. What the ACHP COULD do is look to the SOCIAL sciences -- anthropology, cultural geography, sociology, and the hybrid disciplines that study decision making and public engagement, both within and across cultural, social, and economic groups, and try really hard to make the 106 process reflect the best that these sciences have to offer.

7. Should performance metrics that demonstrate agency compliance and document Section 106 outcomes be developed? Please cite specific areas where metrics are needed.

Not just no, but hell no. "Performance metrics" applied to historic preservation have already resulted in agencies wasting time trying to calculate what percentage of historic properties under their control have been preserved, and by how much. Utter nonsense, and even more nonsensical when applied to something as necessarily flexible as Section 106 review. The only meaningful metric is the answer to the question: "did we or did we not, in this case, reach a conclusion that was broadly accepted as being in the public interest?" If you can count up the times you did and the times you didn't, I guess that would be of some interest.

8. Are there better ways to encourage public participation and an open exchange of views as part of Section 106 review? Please cite specific areas where improvements could be made and indicate what tools or mechanisms might be made available to achieve this goal.

"Better" ways? Better than what? Never mind; are there ways? Certainly. To start with, rigorously expunge the jargon and nit-pickery from the regulations. Specifically, do away with abstractions like "adverse effect" and "no adverse effect." When an agency wants to do something, the process ought to seek to find out whether anybody has a problem with it that's somehow related to historic preservation (broadly understood); if not, the agency ought to be good to go, but if there are problems, the process should be aimed at resolving them through consultation. It is outrageous to spend time and money arguing about whether something is or is not an adverse effect when nobody really gives a hoot whether the adverse effect occurs or not. It is equally outrageous to have an effect that people think is terrible treated as "not adverse" because it's possible to make a lawyerly argument that it doesn't "diminish the integrity of the property's location, design, setting, etc. etc. etc." The regulations are awash in such abstractions, and the related NPS regulations are even worse. Secondly, train your people to engage the public, and insist that SHPOs do likewise (Ridiculous as it is, they are, according to the regs, supposed to represent the people of the state). And restructure the regs to force such engagement. There is a lot of literature and expertise out in the world about how to engage people in defining and resolving disputes; the ACHP staff should become expert in it, and promote its use by others.

9. How else might the ACHP modify, clarify, or improve the regulations to reduce burdens and increase efficiency?

Oh, let me count the ways! To start with, think about restructuring the regs to address different project or program types in different ways. A project conducted directly by a federal agency is different from a project an agency assists, and both are different from projects that agencies permit. Procedures tailored to each type might be helpful. And/or try to build systems for determining the extent to which a given project outrages public sensitivities, and give projects that do a lot more rigorous review than is given those that don't. Whatever is done should be done in concert with CEQ, so that reforms are reflected both in 106 and NEPA, with EPA so they're reflected in the implementation of CERCLA, RCRA, and their toxic kin, and with the land managing agencies so they're reflected in planning under laws like FLPMA.

Seek ways -- and I realize that it would be hard and tricky -- to do away with the noxious practice of letting project proponents hire and fire those who analyze the impacts of their projects. Proponents doubtless need expert advice and advocacy, but it's ridiculous to pretend that a self-understood member of a proponent's planning team, who can be canned if he or she doesn't give the proponent's preferred answers, can objectively analyze impacts or reflect public concerns.

Ideally -- and this, I know, would require legislation -- uncouple the consultation process from the National Register and let it address WHATEVER is of concern to people about the cultural environment. Let the Register go off and be its happy, irrelevant self, while Section 106-type consultation (or rather, an improved version thereof) is applied to resolving concerns about impacts on "cultural resources" broadly defined, or on whatever people value in the environment

Thanks for the opportunity to comment.

Tom King

ACHP Seeks Advice

The Advisory Council on Historic Preservation (ACHP) has just published a notice requesting advice from interested parties about how its National Historic Preservation Act Section 106 regulatory process (outlined at 36 CFR 800) might be improved to make it more effective and less burdensome.  This is in response to President Obama's Executive Order 13563, which directed all rulemaking agencies to undertake such a review.

The ACHP's request, which includes specific questions to which it solicits responses, can be accessed at http://www.achp.gov/EO_13563.pdf .  I'd certainly encourage everyone interested in how the Section 106 process does and doesn't work to take a close look at the request, and respond to it. 

On Sweating the Small Stuff

I’m helping an agency client plod along toward the end (I hope) of a long and complicated consultation regarding a new construction project. The other consulting parties have quite justly criticized the responsible agency for tardiness in initiating review, too late for the parties to influence key siting decisions. But now the same parties are wringing their hands over minor issues that can be resolved only in the process of final design. “Oh dear oh dear,” they say, “maybe we shouldn’t conclude a Memorandum of Agreement (MOA) until we’ve reviewed much more detailed plans and specifications.”

People, you can’t have it both ways. If you’re going to insist (as you should, and as the law requires), that agencies initiate and pursue Section 106 review early in planning, you cannot simultaneously say that they have to deliver to their consulting partners fully developed plans and specifications addressing every imaginable jot and twiddle.

Sure, the small stuff needs to be resolved, and the devil does lie in the details. But the way to handle this – or at least A way to handle it – is to include “process” stipulations in the MOA calling out what you think the issues might be and prescribing ways to resolve any problems they present. Usually this will involve review of plans and specifications by all or some of the consulting parties (or by others) and a process for addressing any concerns raised.

Such provisions are almost automatically included in a lot of MOAs (including the one I’m working on), but perhaps because their inclusion has become so automatic, people seem to have forgotten what they’re for. What they’re for is to allow us to address projects under Section 106 early in planning, establish agreement about generally how a project will be carried out, and then make adjustments as necessary to resolve relatively minor design issues as detailed plans and specifications are developed.

And no, inclusion of “process” stipulations does not automatically force an agency to negotiate a Programmatic Agreement (PA). It’s perfectly OK to include such stips in an MOA. If your agreement begins to become composed only of “process” stips, then you probably do need to think about a PA, but there are innumerable perfectly good MOAs that include “process” stips, and the regulations provide no bar to their inclusion.

Knock It Down Quick or Let It Rot: The Choice is Yours

Continuing with my book-in-progress on “How to Destroy Historic Landmarks” –

Here are a couple of tips that apply mostly to the demolition of old buildings and structures, particularly those owned or controlled by federal agencies in the United States.

Knock it Down Quick

In the United States, most places regarded as “historic” have been around for at least fifty years, and other countries tend to demand even greater antiquity. The U.S. rule is that a place can’t be eligible for the National Register of Historic Places if it has “achieved significance” only within the last fifty years – unless it is of “exceptional” significance.

This rule presents you with an obvious opportunity if you have a building you want to get rid of that is, say, forty-five years old. If you plan to knock it down before it turns fifty, you’re relatively unlikely to run into problems with laws like the National Historic Preservation Act.

I say “relatively unlikely” because there is that pesky language in the National Register regulations (36 CFR 60) about “exceptional significance.” The language is there to handle things like the 9/11/01 crash site of United Airlines Flight 93, which went into the history books the moment it hit the ground (or before), and to keep the Register open to truly astounding pieces of modern (or postmodern) architecture. But the language is open to a lot of interpretation, and if someone really doesn’t like your project they may find ways to argue – and convince authorities like the Keeper of the Register – that your 40-year-old dairy barn really IS exceptionally significant in the history of milking-machine development.

If your 40- or 45-year-old building doesn’t seem to have anything super-special about it, though, and if opposition to your project hasn’t yet risen to a fever pitch, you’re probably well advised to knock the building down as fast as you can.

Let it Rot

There’s also a strategy that often works quite well at the other end of the spectrum, so to speak. If you’re confronted with a building that’s pretty old – not so ancient that its antiquity alone makes people treasure it, but pretty venerable – and you can neglect it long enough, and badly enough, it can “lose integrity,” in National Register-speak, and no longer be eligible for the Register. Or even if it doesn’t technically lose integrity, it may just become so obviously beyond repair that no one will object too loudly to your proposal to take it down.

Note, though, that if you’re a federal agency official, you’re not supposed to let old buildings you control go to hell. This practice – politely called “demolition by neglect” by preservation people – is pretty clearly forbidden by Section 110(a)(1) of NHPA, which says:

The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency. … Each agency shall undertake, consistent with the preservation of such properties and the mission of the agency and the professional standards established pursuant to section 10 1(g) of this Act, any preservation, as may be necessary to carry out this section.

In other words, you’re supposed to – hell, you’re required by law to – take care of your historic properties, including old buildings that may be eligible for the Register. But there are ways to get around this troublesome legality.

Neglecting the building may not have started on your watch; it may have been going on for years, or decades. So who’s to blame? Gee, it’s too bad, but now the roof’s caved in, or the pilings have rotted, and it just wouldn’t be cost-effective to try to fix it up. The preservation authorities may scold you, bemoan the situation, or even insist that you give lip service to considering alternatives or doing better next time, but in the end they’ll probably sigh and sign off on your demolition.

Or maybe you didn’t know the building was historic. Nobody had come along and put a brass plaque on it. It’s not on the National Register (or if it is, nobody told you it was). You thought it was just a rotten old building. In this case you’ll probably get beaten up a bit for failing to consider the building’s possible historicity or architectural merit, and you may have to agree to something like an installation-wide survey to establish what else under your control is eligible for the Register. But again, you’ll probably get agreement in the end; there’s a strong bias among SHPOs and at the ACHP toward reaching agreement, so ignorance of the law is pretty regularly taken as an excuse for non-compliance.

Or maybe retaining the building is inconsistent with your agency’s mission. You have to defend the country, or take care of the sick, or clean up the environment; you can’t be troubled to take care of an old building you don’t need, and whose maintenance is costing you money. This one’s actually pretty weak, because even if it’s true, it’s sort of irrelevant. If you really can’t perform your mission with that stupid old building standing around, then NHPA Section 106 gives you a way to deal with it – you propose to demolish it, and consult with the SHPO and other interested parties about whether and how to do it. And in the end, you get to make the call. There's also a provision at NHPA Section 111 directing that you make unused historic properties available for use by others. But historic preservation people, for all their pomposity and pretensions, tend to cave when confronted with agency missions that have a lot of public (or modestly high-level political) support. Or if they don’t exactly cave, they fall into chest-thumping about historical and architectural significance and how it transcends all other considerations, or into pettifogging proceduralism, which makes them look like irresponsible fools and when all is said and done helps you get your way.

So if you’re a federal official, and you’re responsible for an old building that you can’t use and don’t want to keep, it may be an effective strategy to avert your eyes, defer maintenance, and let the thing deteriorate for a few years before proposing to knock it down. You may even hasten its deterioration by making sure it’s open to infestation by animals, that it’s deprived of climate controls, exposed to the elements, left unprotected from flooding or rising damp, and simply that nothing is done to maintain it. You probably ought not to document decisions about such actions and inactions; such documents could be embarrassing if they come to light when you propose to demolish the sad old eyesore.

The Nomination Noose

The following is another segment for my book-in-progress, “How to Destroy Historic Landmarks.” Matt Bandy has suggested that I title it something more innocuous, like “A Project Manager’s Guide to Historic Preservation,” but I don’t think that title would sell as well, and besides would involve taking my tongue out of my cheek – an anatomical impossibility.

The Nomination Noose


One device you can sometimes employ to trip up NIMBYs or Tribes (NOTs) in their efforts to get in the way of your project is to encourage them to nominate the place they’re concerned about to the National Register of Historic Places. This may seem counterintuitive, but I’ve seen it work on several occasions.

The Nomination Noose is a strategy that’s specific to the United States, where Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to take into account the effects of their actions (like approving your project) on places “included in or eligible for” the National Register. Until the mid-1970s, the law required only consideration of places “included in” the Register, which meant federal agencies could ignore impacts on historic places until somebody (like a NOT) got around to doing the studies and paperwork to nominate them to the Register. This really didn’t make for very sensible planning, so President Nixon issued an executive order (#11593) in 1971 directing agencies to treat “eligible” properties – that is, places that meet the criteria for inclusion in the Register – just as though they were listed. This provision was subsequently adopted by Congress as an amendment to the NHPA. So under current law, it’s up to the federal agency whose funding or permits you seek to figure out what’s eligible for the Register, and if it’s eligible, to consider how it will be affected and what to do about it, all in consultation with the State Historic Preservation Officer (SHPO) and other interested parties.

But not every NOT knows that, and a lot of federal agencies are pretty foggy on the concept themselves. And the National Park Service (NPS), which maintains the National Register and holds quite religiously to a belief that everybody should nominate whatever they possibly can, can be counted upon to encourage nomination and express a degree of scorn for places that are only found eligible for the Register.

So, sometimes you can con the NOTs into nominating the places they’re concerned about to the Register, instead of just insisting that they’re eligible.

How can this help you? Well, it may not; they may succeed, and then you’re in roughly the same place you’d be if your overseeing federal agency and SHPO just agreed to treat the place as eligible. But there’s a pretty good chance that they won’t succeed (regardless of their place's actual significance), and by initiating the nomination process they effectively take the pressure off you to worry about the matter, unless and until they succeed in getting it on the Register.

How is this? Recall that it’s the federal agency’s responsibility to consider impacts on eligible, as well as listed, properties. If a property’s not listed, the federal agency has to figure out whether it’s eligible, and the agency will most likely require you to give it the information it needs in order to do so – which usually means doing surveys, studies, and consultations of various kinds. And if you have a NOT out there jumping up and down insisting that its place is eligible, the path of least resistance for the agency and SHPO is usually to say “OK, it’s eligible,” and start looking at what damage your project will do to it. The burden of proof falls on you to show that it’s not eligible – though, as I’ve argued above, it’s usually wiser simply to accept eligibility and get on with it. But when the NOT (or anyone else) sets out to nominate a property, they take upon themselves the burden of proving it to be historically, archaeologically, architecturally, or culturally significant. They are now under the gun, not you.

And while an agency and SHPO can agree to treat a place as eligible for the Register based on whatever data they decide are sufficient, the nomination process is a highly structured, complicated paperwork exercise, that routinely costs thousands of dollars to complete. Nomination forms must be filled out just so, with appended maps and photographs and supporting documentation. Boundaries must be precisely delineated, sources cited in proper bibliographic fashion, and so on. Once complete, the forms must be reviewed, usually by the SHPO’s State Review Board, and then – if they pass muster – sent on to the Keeper of the National Register in NPS for a final blessing. The Review Board – made up of professional historians, architectural historians and archaeologists, for the most part, who may know and care nothing about the planning processes to which their decisions relate, but who tend to be pretty jealous of their own expert credentials, can be counted on to look on each nomination with a degree of skepticism, as can the SHPO staff members who organize the material for the Board's consideration.

So the NOT winds up spending a lot of time and treasure fighting its way through the nomination process, while you get on with planning your project. The time and treasure the NOT’s spending on nomination is, of course, time and treasure it’s not (sic) spending fighting your project. The NOT’s guns are directed at the SHPO and maybe NPS, not at you or the responsible federal agency; you can both essentially wash your hands of the matter until NPS awards the nomination its thumbs up or thumbs down.

Just to put frosting on the cake, while a place can be determined eligible for the Register regardless of how its owner feels about it (because the determination is simply a finding of fact, like noting that the ground is wet or the tree is a maple), under NHPA a property cannot be placed on the Register if its owner, or a majority of owners where the property has more than one, formally objects to its placement. So if you own the property, or if you can line up a majority of its owners and prevail on them to object (This doesn’t usually cost much), you can block the NOT’s nomination. The place can still be determined eligible, which puts you back into Section 106 review, but you will have caused the NOT to waste a lot of time and money getting back to where things were before the nomination process ever began.  Frustration is likely to set in – to say nothing of confusion – and the NOT may simply give up. Moreover, since the average member of the public has, to say the least, a rather thin understanding of Section 106 review, a failed nomination is widely taken to mean that the place is not significant, so it can turn public and official opinion against the NOT.

So to summarize: if you can get a NOT to stick its head in the nomination noose, the NOT may very well hang itself. Or if not that, it will at least tangle itself up and waste time and money that it might otherwise spend fighting your project. BUT the NOT’s flailing about in the nomination process does introduce an element of uncertainty into your own planning – it’s not impossible that at the eleventh hour the place will get included in the Register, and then you’re back to square one. On balance I don’t think it’s a good strategy, but it’s one you can use if you’re so inclined.

On the Efficient Destruction of Historic Places: Don’t Question Significance

Preface:

In the interstices of my somewhat fragmented writing life, I’m working on a book that no publisher has agreed to touch, called something like “How To Destroy Historic Landmarks.” I figure that since I’ve written books for people who want to SAVE such places, it’s only fair that I offer something to the other side. This is how the manuscript begins:

You have a plan. Maybe for a new industrial complex, a wind farm, a solar plant. Maybe a prison, or a nuclear waste processing facility, a residential development, a pig farm. Maybe a logging operation, an apartment building, a natural gas pipeline, a railroad.

You start assembling the land for your project, and the financing. Maybe some of the land is owned, or controlled somehow, by the United States government. Or maybe you need some federal financing, or federally-guaranteed financing. Or maybe you need a federal permit of some kind. Or a permit from a local or state government. Or maybe you don’t, or maybe you don’t know. Or maybe your plan involves operations in a country other than the U.S., in which case – well, we’ll get to that.

You engage an architect-engineer firm to help you develop your plan. When you negotiate the A/E’s scope of work, one thing they say is that they’ll need to do an environmental impact assessment (EIA) – though they may call it an “environmental study,” or an “environmental assessment.” They may say you’ll need an “environmental site assessment,” and that’s a whole different thing; we’ll get to that, too.


But what’s this EIA thing? It’s a study, they tell you, designed to make sure your project won’t have any significant impacts on the environment. It’s required by law.


“Oh,” you say, looking at your lawyer, and she nods.


“So what’s to study?”


“Oh,” the A/E says, “endangered species, wetlands, floodplains, cultural resources.”


“What resources?”


“Cultural resources – that means historic landmarks, archaeological sites, things like that.”

You look at your lawyer and she shrugs her shoulders. You’re both thinking Mount Vernon, or the Taj Mahal, or Olduvai Gorge. There’s nothing like that on your property.


“It’s required,” the A/E says. “Got to get clearance. It’s usually just a formality.”


And thus you find yourself paying for a “cultural resources study” (though it may be called something else), the purpose of and need for which are not clear to you. And this study may lead you into some very strange worlds.

OK, skipping ahead because this issue has just come up in a project on which I’m consulting, I want today to compose something about how unwise it usually is for a project proponent to argue about the significance of a historic place – in standard US practice, its eligibility for the National Register of Historic Places – and solicit reader reaction. So…

Is It REALLY Historic?

Your consultants have found some places that you’ll have to dig up or knock down to build your project, that they say are “historically significant,” or “eligible for the National Register,” or maybe “potentially eligible.” Or maybe your consultants haven’t found these places but others – the local Indian tribe, the historical society, landowners, the Sierra Club – have drawn attention to them. These places may not look like anything to you: maybe a few piles of rocks, some sharp pieces of stone your consulting archaeologist gets all wet in the pants about and starts mumbling about “bulbs of percussion.” Maybe squiggles on an old map showing that there was once a homestead or a house of prostitution on the site; maybe a scruffy old building in which you wouldn’t house your ne’er-do-well son-in-law. Maybe some broken up fragments of pottery, or some bones. Maybe nothing at all but plants and trees, a rock outcrop and a slow-moving stream, but the tribe says it’s a “traditional cultural place” associated with some old story about weird mythological doings in some ancient dream time. “This place,” they say solemnly, “is eligible for inclusion in the National Register of Historic Places under Criterion A” – or B, C, or D.

Your inclination may be to say “this is a bunch of hooie; my consultant is trying to enrich himself by getting me to fund more studies” – or “these NIMBYs are making up something to encumber my project.” You may be right. You may also not be right, but let’s assume that you are. What happens if you say “Hell no, that place can’t be eligible for the National Register under any criteria; it’s all BS?” Politely, of course.

Well, as you may imagine, there’s a process for that, and quite a few permutations on the process. In essence you have to show why the place is not historic, to the satisfaction of the State Historic Preservation Officer (SHPO), maybe a Tribal Historic Preservation Officer (THPO), and if push comes to shove, to the Keeper of the National Register in the National Park Service. All this takes time, and probably more studies, so your consultant makes out like a bandit; he gets to dig around – in the ground or in archives or in the minds of old folks who remember what’s happened at the place – and all the time you’re paying him. And of course, he – the specialist – is the expert; you’re not, and he’s the guy who knows the SHPO, and maybe the tribes and the local preservation people; you don’t.

Of course, you can hire a new consultant to challenge your original consultant’s arguments, but then you’re likely to find yourself with two consultants arguing about something you don’t understand at all, and there’s no telling how long it will take to reach a decision – if one is ever reached. There’s not much you can do to control this process, other than to keep firing consultants and hiring new ones, and/or calling up your good buddy the governor to put pressure on the SHPO, or your Congressman to lean on the National Park Service – all of which strategies have their own downsides, at the very least requiring ratcheting up your campaign contributions.

If it’s a tribe or NIMBYs pushing the eligibility of the place, you can task your consultants to show that they’re wrong, but this tends to be a real loser. Think about it. The tribe or NIMBY is saying “This place is important because it’s associated with OUR cultural traditions or beliefs.” Your consultant is going to say “no it’s not?” On what grounds? Sure, the consultant may be able to show that there’s no scientific evidence that the cosmic snake Xbuttlesquirm emerged from the ground at the beginning of time and created Crooked Creek, but scientific evidence is irrelevant to the belief system of the tribe, and it’s in their belief system that the creek is (said to be) significant. And the NIMBYs, if they’re smart, will not hang their case on some historical fact that can be disproved (“Jesse James hid in this cave") but on a long-standing belief that has taken on cultural significance of its own (“We’ve all believed, for generations and generations, that Jesse James hid in this cave; it’s become an important part of our identity; it doesn’t matter whether he ever hid there; it’s been “Jesse’s Hideout” since my grandpa was a little sprout.”)

It is possible to get the SHPO to agree with you that the place isn’t eligible, but if the opposition knows what it’s doing there are ways for them to appeal the SHPO’s decision to the Keeper of the National Register in the National Park Service, and you have another delay. The Keeper almost always wants more information, more studies, hence more delay. And the Keeper, living in Washington DC, often asks questions that leave everyone scratching their heads. “What’s the boundary of the place,” for example, whether that makes any practical difference or not. Finally, the Keeper most times comes down on the side of eligibility.

And even if the Keeper goes along with you and says the place is not eligible, there are other laws the opponents can drag in that have nothing to do with Register eligibility; depending on the circumstances, they may have cases to make under NEPA, RFRA, AIRFA, NAGPRA, and maybe state or local law.

So, what to do? Smile, choke back your skepticism, and say “OK, we respect your point of view; we’ll treat everything as eligible.”

Why? Because, remember, the law doesn’t say you can’t destroy eligible, or listed, places; it simply says that you, and the federal agency involved, have to take the effects of doing so into account, following a specific set of procedures laid out in the ACHP’s regulations. So if you accept eligibility, accept the significance of the place, you next go to figuring out what effects you may have on it, and how adverse effects can be resolved. This may turn out not to be too hard. Maybe the effects will really be pretty mild, and you can find pretty easy ways to mitigate them.

True story: I was once involved in mediating a dispute between the U.S. Air Force and the Alaska SHPO over the proposed abandonment of a bunch of Nike Missile batteries and DEW-Line sites. The SHPO said they were historic; the Air Force said they weren’t; the parties were at loggerheads. My colleague and I (she was from the ACHP) asked the SHPO what she wanted done with the places. “Oh, she said, there’s one battery we’d like to make available to a city government to interpret, and we’d like some sort of encouragement to Native Communities to reuse the Dew-Line buildings.”

We turned to the Air Force: “Any problem with that?”

“No,” the Air Force responded, “but we still don’t think they’re eligible.”

In another case I’ve heard about, involving a pipeline over the shoulder of a mountain regarded as sacred by a tribe, after years of wrangling about the mountain’s eligibility for the Register, the effects of the project were resolved by holding a ceremony blessing the pipe, putting it into spiritual synchronicity with the mountain.

It’s not always that easy, but at least when you get to arguing about effects and how to resolve them, you’re on your turf, not the opposition’s. You control information on what’s feasible and what’s not; you can do studies to show what the visual or auditory or atmospheric impacts will be. And in the end, if push comes to shove, you can argue with the federal decisionmakers that there aren’t any feasible options and the public benefits of your project outweighs the damage it will cause. We’ll get to how you do that in the next chapter.

The bottom line here is: fighting over the significance of a place is usually a losing proposition for you. Yes, acknowledging its significance means you’re probably going to have to do SOMETHING to mitigate impacts on it, but the chances are that if you object to its significance you’ll STILL end up doing something; you’ll just take a lot longer to get to the decision about what to do, and spend a lot more money getting there. Plus you’ll so piss off the opposition – because you’re basically calling them liars and cheats, and/or denigrating their cultural values – that they’ll be less willing to deal with you than they’d be if you were more respectful, and more likely to try to stick you for outrageous mitigation measures.

One more point: there's a myth abroad in some parts of the world that if a place is eligible "only" under National Register Criterion "D" -- for containing significant data -- it can be readily dug up and gotten out of the way, while if it's aligible under Criterion "A" for association with significant events, it can't.  This is flatly not true.  The Criteria of eligibility don't define treatment; Criterion "D" sites aren't any more excavation-fodder than are Criterion "A" properties, and Criterion "A" places are no more inviolate than those given a "D" grade.  What has to be preserved, as opposed to moved, dug up, knocked down or blown away, depends on what's negotiated among consulting parties, and ultimately on what the federal agencies involved decide is in the public interest.  Your job is showing them that your project is more in the public interest than would be keeping the historic places inviolate.  You'll do a better job of showing this, and get to the point of doing so quicker and at less cost, by accepting what people tell you about the eligibility of affected properties.