That Petition

I understand that so far I’ve under 100 signatures on my petition to President Obama about reforming environmental impact assessment. Not surprising, I suppose, since it’s a fairly esoteric topic and many of those interested in it are also self-interested in maintaining the status quo. I’ve given the effort till March 1, at which point I’ll decide whether to deliver it or forget it.

So please, if you’re inclined to sign it, do so, and please distribute it to others who may do so. Here again is the text of the petition and the URL where it can be signed.

"Please seek amendments to the National Environmental Policy Act, or issue an Executive Order, to require honest, objective impact assessment that respectfully involves and is responsive to the public, and that happens BEFORE decisions are made to promote projects."

Sign at: http://signon.org/sign/president-obama-reform?source=c.fwd&r_by=408029

One gratifying thing is that a number of Indian tribes and tribal members are signing it, even though it’s not explicitly worded to address tribal concerns. I think tribes recognize that rotten, self-serving EIA is causing unnecessary destruction of environments important to them, and short-circuiting the respectful consultation the President Obama and Secretary Salazar keep promising. I hope more tribes and tribal members will sign on, and I very much hope others will, too. Wasting time and money on EIA that just whitewashes proposed projects, fails to consider feasible alternatives, and shuts the public out of decision-making serves no one.  In the long run it doesn't help even those who do whitewash EIA, because it erodes the value of such work to the public, and thus undercuts support for even bothering to do it.

I’ve heard from a few in the EIA community who think I’m nuts for tilting at this windmill, and some who think I should instead be working quietly behind the scenes to help the Council on Environmental Quality (CEQ) improve things from the inside. I’m all for working quietly behind the scenes, and believe it or not have done so fairly effectively from time to time. But I’ve seen no evidence that CEQ or anyone else in this administration is interested in getting help, or for that matter that they even recognize the existence of the problem. Yet the problem seems so obvious; here’s a reminder:

1. Project proponents prevail upon the political system to support particular projects or programs with little or no consideration for their potential environmental impacts.

2. The proponents are then tasked with finding out what those impacts will be, and reporting them to agencies that often have been (or think they’ve been) given their marching orders to “streamline” review.

3. The proponents hire (and hence can fire) the EIA firms that do the studies.

4. The EIA firms give their clients good report cards (how could they do otherwise?), and carefully avoid considering alternatives to the projects they review.

5. The public, and such very interested parties as Indian tribes, are effectively shut out of the process; there may be public hearings and opportunities to review draft reports, but not to influence decision making through serious, good-faith negotiation. Even with tribes – with whom agencies are required by multiple laws to consult – “consultation” is often only a pro-forma matter that wastes time and patience, accomplishing nothing but to wear people down until they acquiesce in disgust.

What should be done? Well, the following is from a letter I sent on December 18 of last year to the president’s senior policy advisor on Native American Affairs and to the Chair of CEQ. Having outlined the problem, and illustrated it with a specific case, I suggested that action be taken to reform the administration’s approach to EIA and tribal consultation, saying:

“Such an approach might have the following elements:

1. Honestly establish what the environmental impacts of proposed actions – including but not limited to “green” projects – are likely to be before supporting and promoting them, and before telling the federal establishment to fast-track their implementation;

2. In the course of such impact assessment, honestly consider a reasonable range of alternative ways to achieve the public purposes of such actions;

3. Do not allow agencies to rely on data on and analyses of impacts and alternatives prepared by project proponents unless they have been thoroughly vetted to eliminate bias;

4. Actually consult with tribes, as well as with other stakeholders, about whether and how to proceed with projects, which alternatives to pursue, and how to mitigate adverse effects; and

5. Don’t lie.”

Yes, that seems pretty simple. Unsurprisingly, my letter has gone unanswered.

Sign My Petition?

OK, it’s a windmill-tilt if ever there was one, and a mark of my growing frustration, but there it is: I’ve started a petition drive. It’s aimed at President Obama, and it says:


"Please seek amendments to the National Environmental Policy Act, or issue an Executive Order, to require honest, objective impact assessment that respectfully involves and is responsive to the public, and that happens BEFORE decisions are made to promote projects."

Pretty simple, pretty obvious, but something has to be done. Since I published my book about it in 2009 (Our Unprotected Heritage: http://www.lcoastpress.com/book.php?id=219), the situation has if anything gotten worse. Environmental Impact Assessment (EIA) is simply understood to be, and generally accepted as, a whitewash of a project’s environmental impacts, by specialists who view themselves as (and indeed are) members of a project proponent’s planning team. This has two obnoxious effects:

1. It allows environmental impacts of all kinds – notably in my experience those on people, communities, and their cultural values – to be ignored, and

2. It undercuts public support for the conduct of impact assessment; if it’s crooked, what good is it?

The situation is especially odious where “green” projects like wind energy and solar power are involved. Since so many environmentalists have gotten on the bandwagon for such project, there’s almost no one to ride herd on their impacts and try to keep them under control. So agencies like the Bureau of Land Management are cutting corners and signing off on environmental assessments and impact statements whose pro-project biases couldn’t be clearer if they were emblazoned in neon on illuminated billboards, and utterly ignoring those Indian tribes and others who have the guts to object.

Will you sign my petition? Click here to add your name:
http://signon.org/sign/president-obama-reform?source=c.fwd&r_by=408029

Two Years of Studies!

I was browsing a shop at O’Hare Airport today, and the shop’s TV was blaring.

“They’ve had TWO YEARS to study the impacts of that pipeline!” some talking head (Rick Perry, I think; I couldn’t see the screen) was saying with disgust. “That’s ENOUGH! It’s time to APPROVE IT!”

I assume the subject was the Keystone XL Pipeline. The thought that ran through my head was: “does it never occur to this doofus that one might study something for two years and conclude that it was a bad idea?”

Of course I know that it would not – particularly if the doofus was Perry, but quite likely if it was almost any other American citizen. We’ve become used to the idea that studies – particularly things like environmental impact assessments – aren’t really supposed to TEACH us anything or provide a basis for making informed decisions; they’re just things that have to be gone through, part of the price of doing business, on the way to doing what we’ve already decided to do. Sometimes, of course, we don’t bother to do studies at all (case in point: invading Iraq without thinking about what to do afterwards). Other times we waive planning studies or attenuate them into near-nonexistence (case in point: Deepwater Horizon). But even when we do them we don’t take them seriously, and don’t entertain the idea that they might lead us to re-think our initial prejudices.

Unfortunately, it’s not just the Rick Perrys of the world who think and act this way. The Obama administration has been – and continues to be – just as big a bunch of doofuses (doofi?) when it comes to its own pet projects, be they renewable energy development or high-speed rail. And we who do the studies – at least we who do environmental impact analyses – haven’t done a thing to discourage this doofusity. We’ve happily drawn our fees doing bogus studies that make our clients’ projects look benign – maybe stretching them out for quite awhile and sucking as much money out of them as we can, but never, never, never allowing them to suggest that a project is a bad idea.

And after all, how could we? We’d be fired if we did.

I don’t know much about the Keystone XL, but I do know that two years isn’t too long to study the potential impacts of such a project, particularly when it will presumably have the effect of accelerating the despoliation of the Canadian landscape overlying the tar sands, with all its attendant effects on water and air quality, wilderness values, wildlife, First Nations rights, and other natural and cultural resources. And I wouldn’t think it entirely beyond reason for such a study – of whatever duration – to provide a rational basis for concluding that on balance the U.S. government ought not to be a party to the scheme.

Except, of course, that such studies don't provide a rational basis for anything.  They have long since become so unreliable, so biased, so untrustworthy as to be useless.

Which still doesn’t lead reasonably to the conclusion that two years’ study is enough, though; it’s probably way too much.

"Indian Sacred Sites"

There’s a good deal of discussion around Washington DC these days – particularly in the Departments of the Interior and Agriculture, with encouragement from the White House – about “Indian Sacred Sites.” It’s pretty widely recognized that President Clinton’s 1996 Executive Order 13007 on the subject hasn’t accomplished much, so several gaggles of government lawyers and subject matter specialists, together with political appointees who may be either, both, or neither, are pondering what might be done to make it work. After, in some cases, extensive and ponderously documented rounds of “listening sessions” with the tribes. Is there anything more childish, demeaning, and flatly insulting than a government-sponsored “listening session?” But I digress.

Executive Order 13007 was issued in the wake of, and in response to, the Supreme Court’s deeply unfortunate decision in Lyng v. Northwest Indian Cemetery Protective Association (1) . This decision was rendered on a case involving a proposed Forest Service road through what the Karuk, Yurok, Hoopa and Tolowa Tribes of northern California refer to in English simply and respectfully as “the high country” – a craggy ridge on the top of the North Coast Range where tribal people go to gather and make medicine and to communicate with the spirit world. The Supremes found, in essence, that blasting the road through the area would not violate the Free Exercise Clause of the First Amendment to the Constitution – it would not “prohibit” the tribes from practicing their religion. They’d just have to dodge the trucks.

Unable to get Congress to do anything (even back then!) about what the Supremes had decreed, the tribes turned to the White House; President Clinton listened, and Executive Order 13007 was the result. Its laudable intent was to require federal agencies like the Forest Service and Bureau of Land Management to do what they could, within the framework of law and policy, to protect the physical integrity of places that tribes regard as spiritually significant, and to guarantee – again within reason – that tribal religious practitioners could gain access to and use such places. But it employed some unfortunate words, some of whose interpretation produced some unfortunate definitions, that have complicated efforts to implement it. I think that those involved in re-thinking “sacred sites” management today would be well advised to ponder these words and definitions, because without somehow resolving their inherent contradictions, there is little hope for achieving the executive order’s purposes.

“Site”

Though the executive order contains a number of problematical terms, the three that are perhaps most troubling make up its title. Taking the last first: what is a “site?”

“Site” is not always very meaningful as a division of tribal geography. Tribes usually occupied and used fairly large territories with somewhat vaguely defined boundaries; tribal territories could and did often overlap. Within these territories there were – and are – some fairly well-defined geographic features (River valley X; mountain Y), and many others that were not so well defined. Most land was not formally owned by individuals, so there was little or no need for the strict demarcation of boundaries. As a result, even an obvious landscape element like a mountain might have ambiguous boundaries. It’s obvious where the top of Mt. Everest is, but where are its feet?

In this sort of environment, with this sort of spatial ambiguity, what constitutes a “site?” Is a mountain a “site?” A river valley? Or does it have to be something smaller, with clearer boundaries? If so, how small does it have to be, and how clearly defined must its boundaries be? Given that tribes did not usually assign tightly defined boundaries, what is the basis for defining them?

In Section 1(b)(iii), the drafters of the executive order told us that to be a “site” a place must be “specific,” “discrete,” and “narrowly delineated.” “Specific” makes sense: a given site must be this site, and not confused with that site. But what does “discrete” mean? Dictionary.com says the word means “apart or detached from others, separate, distinct.” But this is exactly what many places viewed by tribes as “sacred” are not. The site known as Panther Meadows in northern California, for instance – well known as a place of spiritual power among the Wintu and other local tribes, is on – and therefore clearly not separate, distinct, or detached from – Mt. Shasta, which is also (with very ambiguous boundaries) regarded as a spiritual place. This sort of thing is quite common, and is hardly unique to Indian tribes. Consider the Sea of Galilee, for instance – surely a “sacred site” for Christians, but containing within it the shoreline where the loaves and fishes were multiplied, the rock outcrop on which Jesus told Peter he would be the rock on which his church would be built, the water on which Jesus walked, and so on. If we were applying the executive order in Israel, would we say that the Sea of Galilee is not a Christian sacred site because it is so indiscrete as to contain all those other sites? “Narrowly delineated” raises even more questions. Delineated by whom, on what basis, according to whose criteria?

Presumably the drafters of the executive order were trying to keep tribes from identifying the whole world, or the whole of XYZ National Park or National Forest, as a sacred site, but in pursuing this objective they effectively required that tribes abandon their own ways of viewing the landscape in favor of a Euroamerican system of metes and bounds. How does this square with the principle of respecting tribal religions that surely underlies and justifies the executive order?

“Sacred”

Dictionary.com gives us several pertinent definitions for the word “sacred:”

• devoted or dedicated to a deity or to some religious purpose; consecrated;

• entitled to veneration or religious respect by association with divinity or divine things; holy;

• pertaining to or connected with religion ( opposed to secular or profane), and

• regarded with reverence.

Some 35 years ago I had a brief but spirited debate with my good friend Fr. Francis Hezel, SJ about whether I was right to refer to Mt. Tonaachaw, on Wene Island in Chuuk, as “sacred.” Sure, Fran said, it’s where in Chuukese tradition the semi-supernatural culture-bearer Sowukachaw came in the form of a frigate bird and set up his meetinghouse; sure it’s a major landmark in the supernatural geographic lore of the islands; sure it’s metaphorically referred to as the supernatural octopus kuus, out of whose ear swim equally supernatural barracuda to protect the islands, but it’s not sacred as the term is defined in western theology. As discussed in my 2006 book Places That Count (2) , I dismissed Fran’s argument as Jesuitical hairsplitting until the statements and actions of the people living around the mountain showed me I was wrong. They respected the mountain, yes; they didn’t want other people messing with it, yes, but they were prepared – no doubt after engaging in the proper rituals – to let it be messed with for a price. Why? Because in their cultural traditions, there are ways to compensate for just about anything. So even by Dictionary.com’s rather broadminded definition, Fran was right; it’s hard to see the mountain as “consecrated,” or “devoted or dedicated to a deity” (even if Sowukachaw is deified). And while it’s certainly “connected with religion,” is that really “as opposed to” the secular or profane? This is the crux of the matter, I think. A lot of places that indigenous people regard as spiritually powerful, and entitled to respect and care on that basis, are nevertheless places where “secular” or “profane” activities go on with impunity. But to complicate things further, these “profane” activities – say, fishing, picking berries, or cutting trees – are not always or even often strictly profane; they often can be carried out only by particular kinds of people, at specific times of the day or year or cycle of the moon, accompanied by appropriate prayers or other rituals. So where do we draw the line between the “sacred” and the “profane?” And just as in forcing indigenous people to squeeze their special places into our definition of “site,” is government not forcing such people to violate the tenets of their own religions in order to receive the benefit of protection for such places? Even by the crabbed definition imposed on its language by the 9th Circuit Court of Appeals (3), is this not a violation of the Religious Freedom Restoration Act (RFRA)(4)?

Indian

Finally, there is the first word in the title: “Indian.” Setting aside the distaste for this term that arises periodically on historical and geographic ground, is it entirely fair to apply the Executive Order’s direction only to places valued only by those groups of American citizens that fall into the Order’s definition of “Indian Tribe?” That definition – in concert with those found in many other U.S. laws and regulations – is “an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to Public Law No. 103-454, 108 Stat. 4791.” There are good, practical reasons for that definition in other contexts – notably those involving the governance of reservations and the administration of tribal trust assets. But when it becomes the basis by which the legitimacy of a group’s assertion of a place’s spiritual significance is judged, does the Executive Order not impermissibly entangle the Secretary of the Interior in religious matters? Does it not have the Secretary, in effect, establishing which tribal religious will and will not be accorded respect? Is this quite consistent with the Establishment Clause?

Having pondered these questions ever since Executive Order 13007 was issued, I’ve sadly come to the conclusion that for all its good intentions, the Order is not worth keeping; it ought to be scrapped in favor of something else.

What else? Well, at the time of the Lyng decision, we didn’t have RFRA. Now we do, and it strikes me that a liberal reading of its prohibition on the government’s imposition of burdens on anyone’s religious practice without a compelling government interest would achieve the purposes of Executive Order 13007 without creating the complications that have kept the Order from being effective. As I’ve discussed elsewhere(5), the 10th Circuit has adopted such a reading, while the 9th Circuit has imposed a ridiculously restrictive one. It might be a lot more productive for the administration to look at ways to resolve this contradiction than to fiddle further with the deeply flawed Executive Order 13007.

Endnotes

(1) Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)
(2) King 2006: Places That Count: Traditional Cultural Properties in Cultural Resource Management. Altamira Press: p. 7
(3) In Navajo Nation et al v. United States Forest Service, 535 F 3d 1058 (9th Cir. 2008).
(4) 42 U.S.C. §2000bb (2006)
(5) King: What Burdens Religion? Musings on Two Recent Cases Interpreting the Religious Freedom Restoration Act. 2010; Great Plains Natural Resources Journal 13:1-11

Consultation

The word “consultation” is used in dozens, maybe hundreds or thousands of United States laws, regulations, guidelines, standards , and probably comic books, referring to something that should be done on the way to making decisions. Federal agency officials are regularly directed to consult with other federal officials, with federally recognized Indian tribes, with state and local government agencies, with subject-matter experts, with specific concerned parties, and sometimes even with the general public. These officials are usually told to initiate consultation early in planning, and are occasionally (though not often) told to bring it to some kind of conclusion before actually making a decision. Very occasionally they are told that consultation is supposed to influence their decisions, and there is a good deal of case law indicating that they should keep an administrative record documenting their consultation.

However, there is little official direction about just how an agency ought to consult – that is, about what “consultation” means.

I think that’s a problem that’s likely to render meaningless all the cogitation, head-scratching and paper-production that’s going on in the agencies these days – sometimes with reference to “tribal consultation,” sometimes with respect to “sacred sites” management, sometimes (though rarely, it seems) with respect simply to how the public – the voters and taxpayers – ought to be involved in their government’s decision-making.

So here’s some unsolicited advice for the White House, the Department of the Interior, the Forest Service, and all the others who are worrying about such matters:

(1) Give some thought to what “consultation” ought to mean.

(2) Once you figure it out:

      (a) Try to make sure your administrative procedures let or even make it happen; and

      (b) Give your people some explicit direction and training in how to do it.

I don’t think that item #1 above is all that difficult. It comes down to a simple rule, articulated long ago by a guy whose name a lot of politicians like to invoke these days, which goes like this:

"Therefore all things whatsoever ye would that men should do to you, do ye even so to them"
                                                              (Jesus of Nasareth, according to Matthew 7:12).

Or in its common simplified form: “Do unto others as you would have them do unto you.” Think about how you would want to be consulted if government was going to do something potentially affecting you. Ask yourself:

     • Would you be satisfied getting a letter saying “We’re planning to do XYZ; if you have any comments, please send them in within 30 days?”

     • Would it be OK with you for the government to take your comments, task somebody with writing dismissive responses to them, and ignoring them?

     • Would you think it reasonable for the government to establish in advance, and unilaterally, what could and couldn’t be discussed in the course of consultation?

     • Do you think that it would be helpful for the government to send low-level employees or contractors to chat with you, who couldn’t do a thing to accommodate your concerns?

     • Would you be satisfied with “listening sessions” that collected your concerns but didn’t engage you in trying to do anything about them?

No? I didn’t think so. But all the above (and other things just as ineffective and insulting) are things that government agencies routinely do under the guise of “consultation.”

So how would you like to be consulted? I don’t know about you, but I’d like to be consulted in the following manner:

1. Explain to me, in words I can understand, what it is you’re thinking of doing. Do this before you’ve decided to do it, or invested much time and money in planning to do it.

2. Communicate with me, back and forth, about

     a. Why you want to do what you want to do;

     b. What its purpose is, and why that purpose is justified;

     c. Alternative ways of achieving the purposes that justify doing it;

     d. Any problems I have with your doing it;

     e. Ways to resolve my problems; and

     f. If you don’t think you can resolve my problems, why you can’t.

3. If possible, reach agreement with me about how my problems will be addressed.

4. Do what you’ve agreed to do.

5. If we can’t reach agreement, document how we’ve tried to do so, and do whatever you can do to address my problems.

That, it seems to me, is what consultation ought to entail, and what government officials ought to be directed, instructed, and trained in doing.

Another thing they need to be directed, instructed, and trained about – because it’s critical to effective consultation – is thinking in advance about the intellectual baggage that they, the government officials, and their advisors, contractors, and experts, bring to the consultation table. This advice comes from a source (among others) that’s not quite as hoary as the one cited above, but it’s long enough in the tooth, and popular enough, that it ought not be the mystery it seems to be to some government officials and consultants:

“Your perceptions are likely to be one-sided, and you may not be listening or communicating adequately”
                               (Roger Fisher & William Ury: Getting to Yes: Negotiating Agreement Without Giving In, 2nd edition, Penguin 1991:22).

One of the great frustrations that Indian tribes have in “consulting” with some federal land management agencies about cultural resource issues is that they find themselves consulting with archaeologists, or with managers who are influenced by archaeologists, who expect them to phrase their cultural concerns in archaeological terms – or who at least themselves can’t get beyond archaeological world views. So the tribes are supposed to be happy that you’ve sent out archaeologists to find all the “sites” and designed your project to “avoid” them? That may make sense to your archaeologist, Ms. Manager, but it’s unlikely to carry much weight with a tribe. Citizens seeking to consult about impacts on their neighborhoods are often similarly frustrated by government representatives who think only about the historic or architectural value of buildings, or about the economics of a community’s lifeways.

A critical thing that agency people need to consider going into a consultation is: “How are the people I’m consulting likely to perceive the issues?” And they ought to prepare themselves – through study, through the composition of their consulting team, through simply keeping their minds open and sorting through their own beliefs, assumptions, and biases – to understand those perceptions and deal with them thoughtfully.

These things may seem intuitively obvious; it may seem unnecessary even to mention them. But I think that if they’re not thought about and addressed explicitly, all the direction in the world to “consult” isn’t going to do any good.

Highway to Hell: Worth Reading

On the Highway to Hell: Thoughts on the Unintended Consequences for Portable Antiquities of § 11(1) Austrian Denkmalschultzgesetz. Raimund Karl, The Historic Environment Policy and Practice 2:2:111-133, 2011

Particularly if you’re a government employee and think yourself involved in “heritage management,” or if you’re an archaeological, historic preservation, or environmental activist thinking to promote better laws to protect the cultural environment, you need to read this excellent article. It’s about Austria, but the lessons it embodies are relevant to any country.

As Karl details, Austrian law includes a scheme under which people who find antiquities are required to report them to the National Heritage Agency Bundesdenkmalamt (BDA). The BDA is also responsible for licensing excavations for archaeological material, and under its current procedures (circa 1999) can issue licenses only to formally qualified archaeologists.

Giving a little thought to the matter, one might predict that this policy would drive artifact collecting underground (as it were). Karl rather elegantly demonstrates that this has precisely been the result. Collectors do not stop digging or collecting; they simply stop reporting, because to do so would be to pre-emptively admit to breaking the law. Karl’s paper features a comparison of finds reporting statistics from Austria with equivalent data from England and Wales – where the much more liberal Portable Antiquities Scheme (PAS) is in effect, and from Scotland, whose policies are more like Austria’s. The results are impressive: reported finds have increased dramatically under the PAS, while they have remained flat or declined in Austria and Scotland; moreover the absolute number of reports in England and Wales, adjusted for land area and population – is vastly higher than in Austria since institution of that country’s restrictive policies. Karl also reports his research into the actual behavior and perceptions of metal detector-using collectors in Austria, which indicates that they are extremely active, have substantial collections, do not for the most part sell them, often keep excellent records, and would like to cooperate with archaeologists if they wouldn’t be thrown in the slammer for doing so. He also shows that most metal detectorists do not dig very deeply, instead collecting mostly from the plow zone – which is routinely scraped away by archaeologists as a first step in the conduct of controlled excavations! There seems to be a lot of room for cooperation between archaeologists and collectors in Austria, but as the law is currently construed, it can’t happen legally.

I feel sure that Austria is in no way unique in this regard. Certainly my informal experience with collectors in the U.S. suggests a similar conclusion about the potential for cooperation and its suppression by restrictive regulation.

The Archaeology Channel

If you're looking for a worthy place to send a year-end donation, and are turned off by the major charities, please consider The Archaeology Channel (TAC) -- see message below from its guru, Ric, Pettigrew.  I donate a pittance annually.

Happy new year,
Tom

To our existing and recent supporting TAC Members and friends: In these economically difficult times, our nonprofit organization, Archaeological Legacy Institute, faces some tough challenges in maintaining and growing our programs, including The Archaeology Channel (www.archaeologychannel.org), our very popular visitor-supported streaming-media Web site devoted to telling the human story. This last week of the year is a special time for us, as many people choose this time to make their 2011 tax-deductible contributions.


If you are one of those people or you might consider becoming one, please take this opportunity to follow through with that. We have been sending out regular renewal reminders to supporting Members, so you might have received a message saying your renewal anniversary date is passed or is coming up soon. If that is the case, or if you want to make a supplementary contribution, please go ahead and do that now! See the instructions at http://www.archaeologychannel.org/member/member.htm. By pooling small contributions from many people, we will create a more stable and reliable income stream that is less dependent on the decisions of large sponsors. This is an important key to the success of TAC.

With your help, we are working to achieve some key breakthroughs in 2012. In the coming year, among other things, we plan to complete the make-over of TAC and begin development of a new nationwide cable TV channel to show content that we currently are not showing on TAC. The more financial support we have, the faster and more effective we will be in pursuing these initiatives.

If you have friends or associates who might be willing to support our public mission, please point them in our direction. One way to do that would be to forward this message to them. As you know, our standard Individual Membership is $45 and an Organizational Membership is $250, but we accept any amount, smaller or larger. All the information needed to renew or to become a supporting Member is on our Web site at http://www.archaeologychannel.org/member/member.htm.

Just five days left in 2011! Thanks very much.

Rick Pettigrew
Archaeological Legacy Institute
http://www.archaeologychannel.org/

Good (I think) On-Line Instruction re. Tribal Consultation

For all those who keep asking about training in consultation with American Indian tribes (2 or 3 in the last year or so): the Natural Resources Conservation Service (NRCS) in the U.S. Department of Agriculture has just come out with a nice (I think) on-line class that's available free to the public (You do have to register, but it doesn't cost anything).  It can be accessed at http://www.tribal.golearnportal.org/ .  Lots of good information, and it strikes me as quite a balanced, accurate presentation with plenty of good advice.

The Corps of Engineers Needs an Appendectomy

Introduction:

First a bit of background. Under Section 404 of the Clean Water Act, the U.S. Army Corps of Engineers (Corps) issues (and very occasionally denies) permits for filling wetlands, building piers, and other activities affecting the waters of the United States The Corps has extensive regulations governing its regulatory activities, which can be viewed along with much supporting data at http://www.usace.arm.mil/CECW/Pages/reg_materials.aspx.


Although Corps regulatory decisions require compliance with the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act, back in the 1980s the Corps decided that it was far too much trouble to follow the regular Section 106 regulations (36 CFR 800), so they came up with a sort of alternative, which they embedded in their regulatory program regs (33 CFR 320-232 and 334) as “Appendix C.”

Appendix C set up a strange, intricate system by which the Corps can regularly turn a blind eye to the impacts of any regulated project that occurred outside a Corps-defined “permit area” that is generally restricted to the affected waters, though the system allows for a variety of rather capricious exceptions. Never mind that under NEPA agencies are responsible for addressing the effects of their actions – not just those that occur within specific areas under their jurisdiction and control. Never mind that Section 106 imposes a similar standard. To the Corps – with those various exceptions that the District Engineer can invoke or not, as the spirit moves him – what’s outside the permit area doesn’t exist. Unless it’s something that’s on the National Register; then maybe they’ll consider effects on it. Never mind, here, that Section 106 applies both to properties that are on the Register and those that are eligible for it; it’s just too much trouble for the Corps to do what Congress told them to do.

The Advisory Council on Historic Preservation (ACHP) and the National Park Service (NPS) have regularly advised the Corps that Appendix C’s not worth the paper it’s written on. So have innumerable State Historic Preservation Officers (SHPOs), Indian tribes, and other knowledgeable and authoritative bodies. So, on several occasions, have the courts. But the Corps has persisted, every now and then setting up working groups to “reconsider” Appendix C but never actually doing anything about it.

Now, in response to President Obama’s Executive Order 13563, which directed agencies to undertake “retrospective reviews” of their regulatory systems to see how they could be improved, the Corps has once again sought public comments on its regulations. It will doubtless ignore whatever comments it receives, as it always has in the past, but some of us are moved to tilt at windmills and will file comments. If by chance you are so moved, you can submit your comments to docket number COE-2011-0028 at http://www.regulations.gov, or by email to regulatory.review@usace.army.mil – or by snail mail to HQ, US Army Corps of Engineers, Directorate of Civil Works, ATTN: CECW-CO-R, 441 G. Street NW, Washington DC 2-314-1000. But you need to get them in by January 17, 2012.

Ira Beckerman's Comments

If you’re moved to comment, you could do worse than to use the following as a template; it was prepared by Ira Beckerman of the Pennsylvania Department of Transportation and is published here with his permission. He drafted it for his agency, and stresses that it will not necessarily look precisely as it does now when it’s officially submitted to the Corps.

Thank you for the opportunity to comment on the Corps’ existing regulations. In particular, we respond to question 4: “How can the Regulations be changed to better harmonize with, be consistent with, and coordinate effectively with, other federal regulations and environmental review procedures?” With regard to archaeological and historic resources, our agency has one basic comment: 33 CFR 325, Appendix C - Procedures for the Protection of Historic Properties – should be abolished. In its place, the Corp should adopt the Advisory Council on Historic Preservation’s Regulations, 36 CFR 800. There are a number of reasons for doing so.


1. All of the substantive issues raised in Appendix C are already covered in 36 CFR 800 and in roughly the same way. Appendix C is duplicative regulation.


2. Appendix C has never been approved by the Advisory Council and the Corps has never recognized Advisory Council regulations. Consequently, it has been impossible for a state agency such as PennDOT to develop a programmatic agreement to cover historic resources since the two essential signatories cannot come to agreement on the basic set of regulations supporting the agreement.


3. The Advisory Council has a long-established and lengthy set of guidance for interpretation of 36 CFR 800. Generally, this guidance is well understood by other Federal Agencies and applicants (including PennDOT). The development of a duplicative set of regulations by the Corps without the commensurate history of guidance and the Corps unwillingness to seek assistance from the Advisory Council has resulting in Corps staff offering inconsistent and conflicting interpretations of Section 106 of the National Historic Preservation Act, which has increased PennDOT staff workloads and increased the time it takes to complete the process. The presence of 3 main Corps Districts in Pennsylvania has added to the inconsistency, as each District must interpret Corps regulations independently.


4. In Pennsylvania, the SHPO and most Federal agencies, including FHWA, have worked out protocols for the implementation of 36 CFR 800. The protocols provide predictability in process and outcome, and, in particular establish a useful role for the Advisory Council. Even mundane issues such as who should sign off on an MOA first must be worked out differently. PennDOT now works in largely an electronic document environment, which is supported by the SHPO and FHWA. Corps protocols do not fully support this environment. The Corps utilizing its own protocol adds work to the SHPO and PennDOT in duplicative processes and training.


5. The Corps has expressed concerns that acceptance of the Area of Potential Effect (APE) as defined by the Advisory Council would unduly burden the Corps and require it to regulate more than it should. In lieu of (APE), the Corps has developed the concept of permit area. We do not believe acceptance of the Advisory Council standard of APE will unduly burden the Corps. Council regulations are clear that the undertaking and applicability of Section 106 is constrained by: the Agency Official (Corps) determining whether the action is an undertaking (36 CFR 800.3.a); the Agency Official determining the Area of Potential Effects (36 CFR 800.4.a.1); and the Area of Potential Effect influence by the scale and nature of the undertaking (36 CFR 800.16.d). Other Federal agencies with apparently open-ended Areas of Potential Effect have successfully managed to establish limits, and with the assistance of the Advisory Council.

Quibbles and Conclusions

There are aspects of Ira’s comments with which I could quibble – for instance, agencies are not in fact allowed by the 106 regs to determine whether something is an “undertaking;” that term is defined in the statute itself. And as I’ve explained in these pages and elsewhere, I don’t think the ACHP regs are such great shakes; it would be nice if the ACHP's own retrospective review resulted in some fixes (I am, however, not holding my breath). But it is ridiculous for the Corps to follow its own manifestly extra-legal procedures rather than the existing or some future revised standard 106 process; it complicates life for applicants, the affected public, oversight bodies like SHPOs, and probably Corps staff themselves. It’s a waste of time, money, and everyone’s patience.

The Corps probably needs ways to simplify review of little dinky routine projects, but so do most other agencies, and the 106 regulations provide lots of ways to do this. What they do not provide is the authority for agencies to just waltz off and do their own 106 regs without the ACHP’s by-your-leave. The author of Appendix C, who was pathologically fixated on their perpetuation, has long since retired; it’s time for the Corps to join the rest of the world, and reduce the federal regulatory portfolio a little by excising its silly appendix.

Blog 2005-2011 is on Kindle

In response to no popular requests at all, but to reports that pieces from this blog are becoming assigned readings in a few academic CRM (or CRMesque) classes -- and just in time for holiday giving -- I've organized, indexed, and published most of the posts that have appeared here so far as an Amazon Kindle book, which just went live on the Kindle Store at http://www.amazon.com/CRMudgeoneity-Readings-Kings-2005-2011-ebook/dp/B006G25BB4/ref=sr_1_1?s=books&ie=UTF8&qid=1322650842&sr=1-1 .  Assuming it will be a supplementary text, I've set a low, low price of $5.00.  It's called CRMundgeoneity: Readings from Tom King's CRM Plus Blog, 2005-2011.  The experience of publishing on Kindle was an interesting one, and suggests ways to get a lot of our infamous "grey literature" into accessible form.

The ACHP on Reason and Good Faith: an Annotated Version

Introduction:  One of the core requirements of the regulations (36 CFR 800) implementing Section 106 of the National Historic Preservation Act (NHPA) is that agencies make a "reasonable and good faith effort" to identify historic properties subject to effect by their undertakings.  The Advisory Council on Historic Preservation (ACHP) has just issued guidelines for making such efforts, and they're to be congratulated for doing so.  The guidelines should be helpful, though they also contain some perhaps risky ambiguities, and they are not by any means all they could be. 

The squeaky-clean version of the guidance will presumably soon be posted at http://www.achp.gov/.  Below is the complete text with my annotations interspersed.

MEETING THE "REASONABLE AND GOOD FAITH" IDENTIFICATION STANDARD

IN SECTION 106 REVIEW

The regulations implementing Section 106 of the National Historic Preservation Act ("Protection of Historic Properties," 36 CFR Part 800) require federal agencies to identify historic properties within the Area of Potential Effects (APE) that may be affected by their undertakings. Section 800.4(b)(1) of these regulations states that federal agency officials shall make a "reasonable and good faith effort" to identify historic properties.

The ACHP is regularly asked how to determine when an adequate identification effort has been made— that is, at what point a federal agency has made a reasonable and good faith effort to determine whether historic properties are located within an undertaking's APE, which is the "geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist." Answering this question requires an understanding of what the ACHP's regulations say regarding the identification of historic properties.

Prior to beginning the identification stage in the Section 106 process, the regulations (at 36 CFR § 800.4) require the federal agency to do the following:

• Determine and document the APE in order to define where the agency will look for historic properties that may be directly or indirectly affected by the undertaking;

• Review existing information on known and potential historic properties within the APE, so the agency will have current data on what can be expected, or may be encountered, within the APE;

• Seek information from others who may have knowledge of historic properties in the area. This includes the State Historic Preservation Officer (SHPO)/Tribal Historic Preservation Officer (THPO) and, as appropriate, Indian tribes or Native Hawaiian organizations who may have concerns about historic properties of religious and cultural significance to them within the APE.


Annotation:  The regulations actually require something else even earlier. At 36 CFR §§ 800.3(e) and (f) they require the federal agency to:


• Plan to involve the public, and


• Identify other consulting parties


The fact that these activities are supposed to be carried out BEFORE the agency undertakes the scoping actions listed at 36 CFR § 800.4 surely suggests that consulting parties should be involved in those scoping activities – otherwise why do them first? And of course, how can one “seek information from others” if one has not figured out who those “others” – quite likely consulting parties and/or members of the public – are?

This is not just a matter of word play. One of the continuing problems we face in Section 106 review is that agencies make unilateral decisions about APEs and identification methods without talking to anybody – except maybe the overburdened SHPO staff, who often have an understandable tendency to say “oh yeah, sure, whatever,” or “Follow our Handbook 1999-X57b.” Then by the time those publics and consulting parties who were supposed to be roped in back at 800.3(e) and (f) find out what’s happening, the agency’s set on its course and the SHPO, having gone along with it, may be disinclined to say “oops.”

Following these initial steps, the regulations (36 CFR § 800.4(b)(1)) set out several factors the agency must consider in determining what is a "reasonable and good faith effort" to identify historic properties. They call for the agency official to "take into account past planning, research and studies; the magnitude and nature of the undertaking and the degree of federal involvement; the nature and extent of potential effects on historic properties; and the likely nature and location of historic properties within the APE. The Secretary of the Interior's standards and guidelines for identification provide guidance on this subject. The agency official should also consider other applicable professional, state, tribal, and local laws, standards, and guidelines. The regulations note that a reasonable and good faith effort may consist of or include "background research, consultation, oral history interviews, sample field investigation, and field survey."

Annotation: And I feel sure – or at least hope – that the ACHP would agree that the list given in the regulations is not an exhaustive one. It doesn’t preclude the use of LIDAR or other remote sensing methods, targeted studies to address particular questions (Is it REALLY likely that Jimmy Hoffa is entombed in the concrete pillars of this otherwise undistinguished parking garage?), ethnographic research, and even experimental techniques like the application of remote viewing. But deciding what to do requires consulting knowledgeable and thoughtful people about what the scope of the identification work should be. This is one reason that broad, multi-party consultation is so important to the scoping effort.

When asked to provide its advisory opinion (pursuant to 36 CFR § 800.2(b)(2)) on the adequacy of a specific identification effort, the ACHP will evaluate the agency's efforts in light of these factors and the following criteria.

1. The identification effort is reasonable when it is logically designed to identify eligible properties that may be affected by the undertaking, without being excessive or inadequate in light of the factors cited above. While it may be appropriate in some circumstances to identify all historic properties in the APE, it is important to note that the regulations do not require identification of all properties.

Annotation:  This is an extraordinarily important point that needs to be carefully noted, and that will probably be widely misinterpreted. First, it’s a recognition of reality. Nobody can ever be sure that they’ve identified all the historic properties in an area. There’s no telling what’s lurking under the playground pavement or inside the walls of the warehouse. Second, there’s often no need to identify all the properties. Suppose you’re looking at the visual impacts of a project, at some distance from the project site. There may be thousands of individual structures and landscapes subject to visual impact. Do you have to go out and evaluate each one? The National Register will probably pat you on the head if you do, but it’s really not necessary. What’s needed is to determine that you do or don’t probably have a bunch of historic buildings, landscapes, viewpoints, etc. up there on which – or rather, on the human use of which – the project may have visual effects. Maybe you need to document a sample of them; maybe you don’t. Maybe generalities will suffice.


Thinking that you’ve got to identify “all” the historic properties I an APE is one thing that drives agencies to define APEs too narrowly, to ignore whole ranges of effects. So it’s important to understand that this isn’t necessary. On the other hand, what the ACHP is NOT saying is that just identifying, say, what’s already on the Register is OK. You have to make a reasonable and good faith effort to identify not only registered places but eligible ones as well. Exactly how much identification you need to do is something to be worked out – with the consulting parties – during scoping.

A reasonable identification plan is one that includes the following:

• Documentation of the horizontal and vertical extent of the APE that accounts for direct and indirect effects;

• An explanation of how the factors cited above inform the content and intensity of the identification plan. This could include information on past work in the area, scope of federal involvement in the undertaking, and the undertaking's magnitude and anticipated effects on any historic properties that might exist in the APE;

• A review of existing information on historic properties within the APE, including information about possible historic properties not yet identified;

• A cognizance of applicable professional, state, tribal, and local laws, standards, and guidelines;

• A familiarity with methodologies used in other historic property surveys in the area that have been effective in terms of time and cost;

• A clear description of the steps that will be taken during field investigations, during the analysis of field results, and in the subsequent reporting and consultation, to determine the presence or absence of historic properties within the APE.

Annotation:  I think it’s unfortunate that the ACHP didn’t add that the plan should clearly reflect the results of consultation with those folks identified back in 800.3, and whose data were elicited under 800.4. I think it’s obvious that it should. What was all that identification and elicitation for if not to gain the benefit of their wisdom?


2. The identification effort is carried out in good faith when it is fully implemented by or on behalf of the federal agency.

Annotation:  I trust this direction will not be taken out of context, since it implies that any ID effort is ipso facto done in good faith if it’s done by or for a federal agency. The ACHP’s seeming faith in the reason and honor of its sister agencies may be touching and generous, but it is not, I think, very well advised. The ACHP would have been well advised to consider the rule set down by the Tenth Circuit Court of Appeals in Pueblo of Sandia v. United States, 50 F.3d 856, 1995 -- essentially, that lying to and withholding data from the SHPO (and implicitly from other consulting parties) is a clear indication of bad faith.

3. An identification plan that is appropriate to the nature and scale of the undertaking is carried out in good faith when it meets the following criteria:

• The plan is carried out in consultation with, as appropriate, the SHPO, THPO, and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to historic properties within the APE;

Annotation:  Here the ACHP seems to forget that there are other American citizens, and maybe even non-citizens, who ought to be consulted if an agency is to say it has made a reasonable or good faith effort that is appropriate to the nature of the undertaking. If the nature of the undertaking is, say, that it will demolish an ethnic Turkish-American neighborhood, would it be reasonable or in good faith just to consult with the SHPO and the Indian Tribe that once occupied the area?

• Is initiated in a timely manner that allows for appropriate analysis and reporting, with adequate time for review by the consulting parties;

• Is carried out by a qualified individual or individuals who meet the Secretary of the Interior's qualification standards and have a demonstrated familiarity with the range of potentially historic properties that may be encountered, and their characteristics;

Annotation:  I question the easy (dare I say simpleminded?) reliance on the SOI’s qualifications standards here. NHPA Section 112 (added in 1992) says that agencies must use people who meet such standards, but it also directed the SOI and the Office of Personnel Management to get together, in consultation with a wide range of interested parties, to develop the pertinent standards, and that has never happened. The existing qualifications standards were cooked up ad hoc by a bunch of wet-behind-the-ears NPS “professionals” (myself included) back in the early 1970s, and to treat them as mandatory today is ridiculous. Agencies, SHPOs, tribes and other consulting parties need the flexibility to experiment with different kinds of expertise, and to effect cross-fertilization between disciplines and areas. Demanding that an SOI-qualified person “carry out” each identification operation is a formula for intellectual stultification and rote performance.

• Acknowledges the special expertise possessed by Indian tribes and Native Hawaiian organizations in assessing the eligibility of historic properties that may possess religious and cultural significance to them (regardless of whether or not such tribes and organizations meet the Secretary's qualification standards);

• Is fully supported by adequate funding and other necessary resources, and

• Is not compromised by lack of integrity or omission, such as manipulating or ignoring evidence.

Note that the regulations require that a reasonable and good faith effort to identify historic properties include some level of effort—at a minimum, a review of existing information on historic properties that are located or may be located within the APE (36 CFR § 800.4(a)(2)). Such an effort may consist of one or more methodologies and should be designed so that the federal agency can ensure that it produces enough information, in enough detail, to determine what the undertaking's effects will likely be on historic properties.

Annotation:  That, I think, is the key rule: has the agency collected enough information, of the right kinds, to permit it to determine effects (and move toward resolving them)? That, after all, is what the exercise is all about.


It is also important to keep in mind what a reasonable and good faith identification effort does not require:

• The "approval" of a SHPO/THiP0 or other consulting party. The ACHP, SHPO/THPO and other consulting parties advise and assist the federal agency official in developing its identification efforts, but do not dictate its scope or intensity.

Annotation:  Very true, and very important. Conversely, though, an identification effort that ignores what the ACHP, SHPO, THPO, and other acronyms (or real people) recommend could be taken to be arbitrary and capricious.

• Identification of every historic property within the APE. One of the reasons the ACHP's regulations contain a post-review discovery provision (36 CFR § 800.13) is that a reasonable and good faith effort to identify historic properties may well not be exhaustive and, therefore, some properties might be identified as the project is implemented.

Annotation:  Yes, but that’s not an excuse for saying “oh, we’ll skip identification now and just monitor construction.” Section 106 is a planning law, not a post-hoc pick-up-the-pieces law. The agency needs to identify enough to make reasonable judgments about effects, and the wise agency will try to do a good enough job to minimize the potential for expensive late discoveries.

• Investigations outside of, or below, a properly documented APE. The Section 106 process does not require that the agency search for all historic properties in a given area. Because the APE defines the geographic limits of federal agency responsibility for purposes of Section 106 review, identification efforts are carried out within its boundaries.

Annotation:  First, note the term “properly documented,” which I presume means justified in some manner other than “duh, it’s the construction boundary,” or “duh, it’s were we drew the line.” Second, it needs to be remembered that there can be multiple APEs, their boundaries may be quite justifiably softly defined, and they may evolve as the project plans evolve. Third, some kinds of historic properties may extend far beyond an APE’s boundaries, and even entirely embrace the APE and its surroundings. This doesn’t justify doing detailed studies to characterize such properties, but it doesn’t justify ignoring them either, just because they extend beyond the APE. I invented the term APE back in 1984-85, and it seemed like a good idea at the time. Now I regret it. Often the APE can’t be defined very well, and it may be unnecessary.


• Ground verification of the entire APE. In many cases, areas can be considered to have a certain probability of containing historic properties based on current knowledge. This or similar characterizations can be used to justify where within the APE most identification efforts will or should be targeted. Predictive models that have been tested and found to be reasonably efficient can also assist federal agencies to meet the "reasonable and good faith" identification standard.

Annotation: "Ground verification,” I presume, means walking or driving or crawling over the whole APE. This is a very good point; you don’t need to do this if you can adequately characterize what’s out there, and what may be affected, without doing so. If the ground’s covered with asphalt, for heaven’s sake don’t have archaeologists walk across it at 5 meter intervals scratching the macadam with their Marshalltowns. Think creatively – consider predictions based on history, oral history, and/or environmental reconstructions (even if they HAVEN’T been tested; maybe this is an opportunity to test them. Consider LIDAR and other forms of remote sensing. Bring in a well-qualified geoarchaeologist. Talk to collectors about what artifacts they’ve found there. And generally, talk to the people.

In sum, the Section 106 regulations require federal agencies to make a "reasonable and good faith effort" to identify historic properties that may be affected by their undertakings. The regulations set out several factors that need to be considered in making the effort both reasonable in terms of intensity and scale, and carried out in good faith through its development and execution. The ACHP's online archaeology guidance provides further detailed discussion on how these factors can be applied to archaeological sites to ensure Section 106 identification plans are adequate and appropriate to a given situation (http://www.achp.gov/archguide/). The ACHP's professional staff is also available to assist agencies, SHPOs/THPOs, consultants, and contractors in interpreting the reasonable and good faith standard when questions or disputes arise.

What Constitutes a “Project” Subject to Review under Section 106? Some Useful Guidance from the ACHP

Introduction
 Under Section 106 of the National Historic Preservation Act (NHPA), federal “undertakings” are reviewed for their effects on historic properties, which are then (we hope) resolved through consultation. “Undertaking” can mean lots of things, but “projects” – specific developments, construction operations, land-use activities addressing more or less particular pieces of land – are unequivocally included if there’s some kind of federal involvement in them.


But when you have a project that involves a federal agency but also extends into geographic or other areas where the agency has no jurisdiction, where does the “project” stop for purposes of Section 106? For instance, if the Forest Service or Bureau of Land Management is considering a road across federal land to permit Oliver Oilrig to access the private land on which he wants to drill a well, is the “project” just the right-of-way across Federal land, or the right-of-way plus Oliver’s property?


I was recently asked about this, and – my files and memory failing me when I searched for the antique examples of cases where the matter had been more or less worked out with agencies like the Forest Service, Bureau of Land Management, and Corps of Engineers – I suggested that my interlocutor contact Javier Marquez, Associate General Counsel for the Advisory Council on Historic Preservation. Javier responded with admirable promptness, sharing a memo he had prepared some time ago that had never gotten distributed outside the ACHP and extending the invitation to share it more widely. Here’s what it says:


ACHP Memo

An important series of cases in the Fourth Circuit provide on point caselaw regarding the scope of “undertakings” whose effects must be considered under Section 106. The Fourth Circuit and judges in the district courts in Virginia have been particularly adamant in their opposition to the concept of agencies putting blinders on when defining the scope of the "project" subject to environmental review under Section 106. This is evident in cases dealing with segmentation. While the issue at hand is not technically a "segmentation" issue, the analysis attempts to solve the same problem: how to define the scope of the "project" whose effects must be considered.
 For example, in Crutchfield v. U.S. Army Corps of Engineers, 154 F.Supp.2d 878 (E.D.Va. 2001), the court held that the Corps could not issue a Clean Water Act permit for a wastewater treatment plant without first considering under Section 106 the effects of an associated sewer interceptor, even though the interceptor was not part of the permit application submitted by the County applicant. In determining whether the interceptor was part of the "project" subject to environmental review, the court saw the issue as boiling down to whether the specifically permitted plant had independent utility without the interceptor. Id. at 889. It held that it did not, since it served no rational need in its own right without the interceptor. Id. at 902. Accordingly, the court ruled that for Section 106 purposes "... the determination of the 'effect of the undertaking on any [historic property]' could not be properly made because the TC Interceptor was not considered part of the 'undertaking.'" Id. at 905. Accordingly, under Section 106, agencies must consider the effects of an entire, proposed development on historic properties. The entire development is the "project" for Section 106 purposes because the specific works permitted by the agency serve no rational need in their own right without the proposed, overall development they will serve.

 In a separate case cited by the Crutchfield court, the Eastern District of Virginia grappled with whether the Federal Highway Administration's funding of one expressway in Richmond, Virginia would require its consideration of the effects of a separate expressway that, while also in Richmond, did not have such Federal funding. River v. Richmond Metropolitan Authority, 359 F.Supp. 611 (E.D.Va. 1973) , aff’d, 481 F.2d 1280 (4th Cir. 1973). In declining to look at the two expressways as one "project" for Section 106 purposes, the court explained that "... if the Court concludes that the two highways each have such little value in their own right that their separate construction could be considered arbitrary or irrational, the Court will find them to be a single project." Id. at 635. The Fourth Circuit affirmed the court's opinion in a short, per curiam decision. Again, as explained above, if the separate construction of the specific works permitted by an agency have very little (if any) value in their own right separate from the overall development project they serve, the overall development project must be considered under Section 106. Without the overall development project, those specifically permitted works would serve no useful purpose.

Applying this rule to the case of Oliver Oilrig, it appears that if the proposed road serves no plausible purpose other than serving Oliver’s drill site, then the federal land managing agency (probably BLM or the Forest Service) must review the whole project, including Oli’s property and the effects of his drilling, under Section 106. If on the other hand the road will go on to provide access to a public campground or Sasquatch-watching site, then maybe Oli’s property can be excluded. How the courts (or agencies) would feel about made-up cases designed to demonstrate “independent utility” will doubtless be revealed in time.

The cases cited by Marquez are, of course, in the Fourth Circuit, covering Maryland, Virginia, West Virginia, and the Carolinas; they aren’t precedential in other circuits, but they can certainly be cited, and any judge will want to consider them. Federal agencies and applicants for federal assistance, permits, licenses and rights-of-way would be well advised to do the same.

Thanks, Javier; I think this will be helpful to a lot of people in understanding the scope and limitations of Section 106.

A Good Historic Preservation Plan (I think)

Thanks to Sherman Banker of the Wisconsin SHPO, via Claudia Nissley, for making me aware of the Historic Preservation Plan for the University of Minnesota, Morris -- http://www.morris.umn.edu/preservation/UMM_Historic_Preservation_Plan.pdf. It looks to me like an excellent model for institutions and agencies with historic (or partly historic or maybe historic, or just nice) campuses (or similar facilities) to manage (e.g. military bases, veterans hospitals, colleges, fairgrounds, parks). Very much worth taking a look at by anyone who needs or wants to put together a plan for such a facility.


I was initially a bit put off by its inclusion of an “historic context” section, but it turned out actually to be useful – relating directly to what remains of the campus’ buildings and landscaping relating to different periods of development, functions, and pedagological philosophy. The plan goes on to quite systematically identify what it is that makes the campus special in general, and then to break it down by area and building, identifying key elements and laying out treatment recommendations for each. 

I suppose I would have liked to have seen a little more evidence of participation in plan development by those affected – in this case, students and faculty – but that aside, I think it’s a fine model. Of course, the authors had a very good complex of buildings and grounds with which to work.

The only criticism I’ve heard is from someone who said “It doesn’t follow NPS guidelines.” Well, gee. The key thing to remember about NPS guidelines is that – like the Pirate Code – they are ONLY guidelines.

Being a Veteran on Veterans' Day

I’m a bit embarrassed by this year’s Veterans’ Day effusions – not because a lot of veterans don’t deserve recognition and support, in fact far more support than many get from our society – but because for the first time some of the effusions have been aimed at ME; people have been thanking ME for my military service. I was particularly taken aback when my son Josh posted a message on Facebook doing so.


Let me set the record straight. Yes, I’m a veteran, having served on active duty in the Navy from 1961 through 63. But…..

1. There was a draft in those days; I had the choice of joining the Navy or risking getting drafted into the Army. I was too stupid to give this much thought, but my father, thank goodness, saw what was coming in Southeast Asia and insisted that I join the Naval Reserve. When my draft notice actually came in, I was safely at sea, and my father delighted in so advising the draft board. So my “service” at sea arguably saved me from service in Viet Nam, which would quite possibly have gotten me killed, maimed, or even more messed up psychologically than I am. Incidentally, my father pressured my brother into Naval service just before the Korean war got underway, quite likely saving him from a similar fate. We both owe him (a World War II veteran) a considerable debt.

2. I served my country by helping operate a Landing Ship, Tank (LST) that hauled cargo and people – guns, tanks, trucks, bombs, Marines – around east Asia. I managed not to sink or blow up the ship when I was in positions to do so, and didn’t make too terrible a spectacle of myself on liberty in port, but that was about all I did.

3. In the course of those two years I learned a tremendous amount and spent time in some fabulous places – Tokyo, Hong Kong, Manila, Bangkok, and many, many points between.

4. I got home in time to take part in the anti-war movement with no fear of being drafted and shipped off to ‘Nam.

5. My veteran’s status made me eligible for loan guarantees without which I wouldn’t have been able to go to college. It also got me a mortgage guarantee that allowed me to purchase a home. It gave me preferred access to jobs in the federal government. Even now, fifty years after the Navy, with some relief, gave me my discharge, I have preferred access to certain federal contracts. It’s safe to say that my military “service” made my whole career possible. For better or for worse.

This nation, in short, owes me no thanks; rather, I’m thankful for what it’s allowed me to leverage with my modicum of military service. And my respect goes to those who’ve really served, really been shot at, wounded, traumatized, and killed – whether the wars they were sent to fight made much sense or not.

Speaking of whom: it was great to see Sonny Trimble and his Veterans’ Curation Project (VCP -- http://www.mvs.usace.army.mil/engr/curation/ARRA%20VCP/VCPHome.html --) featured on the PBS News Hour this evening. My colleagues in cultural resource management (or not) can show their gratitude to the nation’s veterans by hiring graduates of the VCP, or of the similarly motivated Veterans’ Preservation Corps (http://www.preservationarts.net/index.php/veterans_preservation_corps.html).

Traditional Cultural Properties, “Long-Term Use,” and “Sustained Awareness”

I’m reviewing a report on an area’s “cultural resources” (by which the authors seem to mean archaeological stuff, with an occasional bow to old buildings), prepared in connection with an environmental impact assessment of a proposed land use project. Toward its end, as something of an afterthought, the report talks a little about whether the landscape within which lie the hundreds of “archaeological sites” it’s described might be a “traditional cultural property” (TCP) that’s eligible for the National Register of Historic Places.

The report was prepared by contractors working for the private company that proposes to build stuff all over the subject landscape, so predictably (given sad current practice) its authors do everything they can to downplay the area’s cultural significance – except to some extent the research significance of the “archaeological sites,” which they can be paid to dig up as “mitigation.” So, despite pretty vehement representations by tribes that value the landscape (and without consulting the tribes, the SHPO, or apparently anybody else), they say nope, it’s not a TCP.

Why? Because, they say:

TCPs … must exhibit long term use or sustained awareness by the community.

In other words, if the relevant community hasn’t “used” the property over the “long term,” and/or maintained some kind of unspecified “awareness” of it, the property is not a TCP.

Now, in this particular case it’s notable that nobody seems to have asked the tribes whether and how they “use” the landscape in question, or what “awareness” they have of its cultural significance (Archaeologists, after all, are experts, so they must just know this stuff through osmosis or something).  In fact there are good reasons to think that tribal members are well aware of the landscape and its cultural character, and use it for both spiritual purposes and the education of youth. But never mind the particulars: does it make sense to say, in principle, that a community must continue to “use” a place, or be “aware” of specifics about it, in order for it to be a TCP, and eligible for the National Register as such?

Continuing Use

National Register Bulletin 38 (http://www.nps.gov/nr/publications/bulletins/pdfs/nrb38.pdf ), which (like it or not) is the National Register’s official word on the subject, says:

The fact that a property may have gone unused for a lengthy period of time, with use beginning again only recently, does not make the property ineligible for the (National) Register.


The Bulletin goes on to posit a situation in which a group revered a particular mountain in the past, but then was forcibly relocated to someplace where it could not readily access the mountain, and coerced into a religious conversion that caused them to ignore the mountain’s spiritual significance. It goes on to imagine the group now undergoing a cultural revival in which it seeks to reconstruct its relationship with the mountain, and concludes:

The fact that the contemporary use of the peak has little continuous time depth does not make the peak ineligible; the peak’s association with the traditional activity reflected in its contemporary use is what must be considered in determining eligibility.

So you don’t have to have “continuing use,” and let me add that it would be especially ironic (to put it mildly) for the federal government – which for many decades pursued policies of disconnecting tribes from their traditional religions and lands – to insist on “continuing use” as a prerequisite to recognizing a place’s cultural significance.

Sustained Awareness

But does the tribe or other group not at least have to be aware of the place in order for it to be significant? We didn’t think about this one in writing Bulletin 38, but it soon came up in practice, and I discussed it on pages 256-7 of Places That Count, my 2006 book on TCPs (http://www.amazon.com/Traditional-Cultural-Properties-Resource-Management/dp/0759100713) . As an example I looked briefly at Hopi and Zuni beliefs that their ancestors traveled all over the Southwest after their emergence into this world, guided, facilitated, and impeded by supernatural forces. The Hopi and Zuni have said that wherever their ancestors left evidence of their passing, that’s a TCP. They don’t know where all those places are, but they know them when they see them. Similarly, I quoted from an Australian case in which an aboriginal expert from one part of the country was able to recognize a place in an area he had never before visited, because of the way it is described in a traditional story, and thus know that (a) it was associated with a moiety not his own and (b) it was to be respected as such.

Clearly, a Hopi or Zuni elder cannot be said to have had “sustained awareness” of, say, archaeological site AZ-CIB-666P5 (if there is such a place), which he or she has never seen.  But he or she knows that such places – with particular kinds of potsherds and masonry – are associated with the ancestors, and he or she knows that if he or she does visit it, there are things to be done to show respect – prayers, maybe an offering – and that one ought not mess the place up if one can help it. The aboriginal expert in the Australian case knew that there were things to do – maybe recite from a song, maybe refrain from picking things up – to respect the ancestral spirits of the moiety associated with the hitherto unvisited place. Are these associations sufficient to make such a place eligible for the National Register? I think so, though perhaps reasonable people can disagree. But surely it is clear that the mere fact that the Hopi don’t know precisely where each site associated with the ancestors is and what it looks like does not automatically make such sites ineligible for the Register; still less does it render them “not-TCPs.”

Unfortunately, the “continuing use” and “sustained awareness” criteria seem to be slipping into the practice of identifying (or trying hard not to identify) TCPs – spurred by the desire to avoid recognizing and dealing with such properties and to facilitate the projects of those who pay us CRM practitioners to make ostensibly objective and authoritative studies. If you want to use these criteria to help your client run roughshod over the cultural environment, that’s up to you, but please don’t pretend that you’re reflecting some widespread best practice or government guideline.

Thinking, and What to Do About It

One of my publishers is considering a new edition of one of my books, and sent out requests for recommendations from folks who've used it as a textbook. One of the responses went like this:


"(King) is getting more crotchety in his old age, but he makes you (the teacher) and the students think. I don’t always, or even 50% agree with him, but he always stimulates debate in my classes."

and...

"(I tell people): 'You need to read Tom King’s stuff. You laugh, you cry, you cringe, you yell at the book, but it always makes you think.'"

I appreciate those comments; I naturally like to think that my writings stimulate thinking. But I can't help but be a bit frustrated, too. "Hey, Reviewer," I think, "if you don't agree with half of what I write, and if you find yourself yelling at my books, why in the world don't you write something about the subject yourself? A book, a journal article, something on my (or someone else's) blog? Why don't we have a dialogue? That's how we both -- all -- can learn."

I expect the National Park Service, the Bureau of Land Management, and other bastions of the lightly-considered status quo to ignore my existence, and my expectations have never been disappointed.  But I do wonder about academics, who theoretically engage in scholarly discourse and encourage students to do the same. If you don't like or agree with what you read, sheesh, there are things to do about that. Question it!  Challenge it!  Argue about it!  Isn't that what scholars are supposed to do?
 
Only the most stultified of bureaucrats simply ignores what doesn't comport with what he thinks (or has been taught to think) and waits for it to be forgotten. But -- maybe I'm missing the real point.  Maybe life in a stultified bureaucracy is the kind of career for which you think you ought to prepare your students.

The Lihir Islands: a Cultural Heritage/Resource Planning Model?

The latest issue (18:1, 2011) of the International Journal of Cultural Property (Cambridge University Press) contains a number of thought-provoking papers. One that should be of special interest to those involved in environmental impact assessment (EIA) and cultural resource management (CRM) is "Stepping Stones Across the Lihir Islands: Developing Cultural Heritage Management in the Context of a Gold-Mining Operation," by Nicholas Bainton, Chris Ballard, Kirsty Gillespie, and Nicholas Hall (pp. 81-110].


The Lihir Islands are in Papua New Guinea (PNG). Bainton and his colleagues provide a concise summary of how cultural heritage/resource management law and practice have developed in PNG in the post-colonial period, including their hopeful if rather tenuous relationship to national development schemes and the interests of extractive industries like gold mining. They then discuss their own experience with a particularly tricky relationship -- that between the traditional people of the gold-rich Lihir Islands and the mining company Lihir Gold Ltd. (LGL) At the center of this uneasy relationship is Ailaya, a cultural landscape of considerable spiritual significance to the Lihirians, around which mining has taken place and within which there are economic incentives to mine (i.e. there's gold in that thar landscape). The evident conflict between mining and preservation of the landscape has not been resolved, but the Lihirians and Stepwise Heritage and Tourism, the Australian company that engaged Bainton and his colleagues and drew financial backing from LGL, have taken significant-seeming steps toward creating a context in which to address this and other development/culture conflicts by developing the Lihir Cultural Heritage Plan, whose pidgin name translates as “A Plan for Social Stability and Harmony on Lihir.” The authors' discussion of how this plan was developed in active collaboration with (really BY) Lihirian communities is fascinating, and may provide something of a model that – with much adaptation – could be useful elsewhere. It was interesting to me that the Lihir initiative employed the popular Australian "footsteps" approach to planning, which I've seen referred to and described but never until now could quite get into my head. Bainton and his colleagues show how "footsteps" works, and it seems very sensible. It will be interesting to see how successful the Plan is at resolving the seemingly inevitable conflict between mining and the sanctity of Ailaya, but one of the Plan's heartening aspects is that it does not (apparently) focus on the sacred landscape in its own right, for its own sake, as we would tend to do if it were in the U.S. and treated as eligible for the National Register of Historic Places.  Rather, as I understand it from this article, the Plan truly focuses on social stability and harmony on Lihir.  In this broad context, management of Ailaya will inevitably play an important role, but not necessarily a determinative one, and not in isolation from the rest of what Lihirians value in their culture.

Public Hearings, Public Participation, and Consultation

From Basin and Range Watch at http://basinandrangewatch.org/Stateline.html

September 3, 2011 - The Moreno Valley office of Bureau of Land Management (not the local Needles BLM office) held what was thought to be a scoping meeting at the Primm golf course for First Solar's Stateline Solar Farm application for a Right-of-Way for about 2,200 acres of public land next to the Ivanpah Solar Electric Generating System. Members of the public drove hours from as far as Palm Springs, Needles, and Las Vegas and beyond to the meeting thinking that they would be able to give voice to comments concerning the project. Union members, environmentalists, members of the Chemehuevi Tribe, and other concerned citizens attended the meeting hoping to have a chance to give comments in a public venue to the federal agency responsible for permitting the project.

They were denied this chance.

The meeting turned out to be a chance for First Solar to tell the public a few items about the proposed project, and then a "crowd-management" session of tables with various contractors available to answer questions privately. This is not what the public wanted. Quite often, in well-run BLM offices, scoping meetings will give people a chance to vocally enter comments into the record, and even have a recorder present to do this. Often an audience wants to hear other's concerns and learn about different issues and opinions. This is democracy after all.

But lately a new style of scoping has emerged, where the public is handed a sheet of paper and in 75 words or less asked to write comments to be handed in to BLM. No oral comments allowed. Jeffery Childers, BLM Project Manager for the application out of Moreno Valley, California, denied the public any chance to give public comments at this meeting after First Solar gave a brief review of the project. In addition, a county sheriff squad car was parked outside the building, and three BLM Law Enforcement Rangers armed with handguns and tasers were present in the room.

A colleague sent me the above link, asking if I was aware of similar forms of “consultation” or “scoping” used on other projects around the nation. My answer was sort of “a pox on both your houses.”


I’ve seen the basic format described above – presentation followed by breakouts – used quite responsibly in a lot of public participation efforts; it can be a lot more effective than the traditional “public hearing” as a means of sharing information and helping people understand a project and its potential impacts. Public hearings, in my experience, too often devolve into what a tribal colleague once defined for me as “Three-I” sessions: “Inform, get Input, and Ignore.” The proponent makes its pitch, the public officials blather, then each member of the benighted public gets 3 or 5 or 7.2 minutes to speak, and does so with greater or less coherence and vitriol, whereupon the “responsible” agency thanks everyone and checks off “public hearing” on its list of things to do.


It’s sad that people concerned about project impacts, like Basin and Range Watch in this case, put so much stress on public hearings. Such a hearing is a chance to vent, but that’s about all it is.


On the other hand, a “present the project and have breakouts,” by itself, may not accomplish much, and certainly lacks the synergy of a public hearing. It may be particularly ineffective – even counterproductive as seems to have been the case with the First Solar “hearing,” particularly when people have to drive in from considerable distances with the expectation of being heard.


It ought to be noted that neither the traditional hearing nor the “present and breakout” approach constitutes “consultation” as defined in the regulations implementing Section 106 of the National Historic Preservation Act. Nor, of course, does it have anything to do with an agency’s responsibility to consult with Indian tribes on a government-to-government basis. Section 106 consultation is defined as:


the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them (36 CFR § 800.16(f), emphasis added).


Tribal consultation, and, I think, all consultation, ought to be similarly understood – you try to find out what people’s concerns are (which may be aided by hearings and presentation/breakout sessions), you discuss them – which means a back and forth conversation, whether face-to-face or via phone, letter, internet or smoke signal – and consider them, and most importantly, unless for some reason it’s not feasible to do so, you seek agreement about how those concerns will be addressed. You may not achieve it, but you try. Which means negotiation, and documenting its results before you make your decision.


That’s how an agency or project proponent actually respects somebody’s concerns. Hearings and presentation/breakout sessions may contribute to this sort of consultation, but they don’t substitute for it.

Reflections on a Visit to China II: The Hegemony of Archaeology

I’m old enough to remember when the government of the People’s Republic of China (PRC) used to fulminate about “hegemonism.” It was a kind of post-colonial version of rants on colonialism, and referred to how, in the PRC’s view, the U.S., sometimes the Soviet Union, and various European powers tried to push their values and points of view on the rest of the world – to exercise hegemony over everyone else.

The term kept running through my mind in Beijing while listening to papers at the World Archaeological Congress’s Intercongress on Cultural Heritage Management in East and Southeast Asia. It did so because the hegemony exercised by archaeology seemed so manifest in – it seemed – everyone’s understanding of cultural heritage management. There seemed to be a widespread shared assumption that “archaeology” and “cultural heritage” were essentially synonymous. Or rather, that there was academic research archaeology, and then there was cultural heritage, which was essentially applied archaeology and the care and interpretation of archaeological sites and historic architecture (itself not much represented in the WAC’s gathering of archaeologists, co-sponsored by the Institute of Archaeology in the Chinese Academy of Social Science).

I know, I know, this is my usual complaint, expressed in the U.S. context as “cultural resource management isn’t just archaeology and old buildings, dammit!” But it was kind of discouraging to find myself lodging the same mental criticism against what my Asian and European colleagues were doing, and how they were thinking.

It seems so painfully obvious: “cultural heritage” means the heritage of a community, group, tribe, nation, or planet that is cultural in character, and that heritage includes customary ways of doing things, systems of belief, values, practices of all kinds – as well as, rather incidentally, the sites, buildings, building complexes, landscapes, and artifacts with which all those things are associated. When we implicitly, virtually without thinking about it, redefine the term to mean only the sites, buildings, artifacts and other physical leavings of culture, we’re ignoring most of our – everyone’s – heritage. And since most people aren’t interested only in culture’s physical leavings, since most people value their cultures as whole things that include but aren’t limited to stuff on and in the ground, we risk losing, or never gaining, the support of most of the population. Both things strike me as sad, and unwise.

Before someone protests – yes, UNESCO has fairly recently begun promoting the care and feeding of “intangible” cultural heritage, but it’s done so by putting together a convention that reflects the intellectual traditions of site/structure/artifact management. Signatory nations are to put together lists of nifty intangible stuff (Manchurian throat singing is a hot issue in China), and then – uh – do something about it. Exactly what they’re to do besides listing stuff isn’t clear, and of course there are already the inevitable arguments about what ought to be listed, by whom, and how it ought to be described. None of this strikes me as a very useful exercise in cultural heritage management. It does, though, illustrate the hegemony of archaeology (and architectural history) over the cultural heritage game. If something like throat singing is going to be recognized as cultural heritage, it seems, it’s got to be officially vetted, given a professional, official, governmental stamp of approval, and put on an official list. That’s the way we’ve always done it with archaeological sites and old buildings, so that’s obviously what we’d better do with anything else we’re going to call cultural heritage.

Of course, my own paper was about doing it another way – eschewing official lists and professional vettery and simply respecting what people and communities view as their cultural heritage. Leaving them alone to practice it except when some sort of conflict arises, and then consulting respectfully about how to deal with it. I beat the drum as usual for my favorite (sort of official) guidelines on the subject, the Akwe:kon guidelines of the Secretariat of the Convention on Biological Diversity. The paper went over like the proverbial pregnant pole-vaulter; people clapped politely and that was that.

Still, though, there were quite a few discussions at the Intercongress about how to engage communities in “cultural heritage” work, and about the effects of things like World Heritage Listing on living communities. It’s not that academic and governmental cultural heritage managers don’t realize that cultural heritage exists in people’s minds and influences people’s behavior, and that it extends beyond the boundaries of sites and the walls of buildings, or that we don’t care about it; it’s that we don’t have a model for dealing with it.

We cultural resource management (CRM) types in the United States sometimes talk like we do have a model, because we, after all, are anthropologists first, archaeologists only second. Unlike those benighted Brits and other old-worlders who define archaeology as a discipline in its own right. But in fact it’s rare that we do much with our anthropology, and particularly rare that we pay much attention to the fundamental anthropological ethic of trying, first of all, to understand, respect, and help the people we “study” in maintaining their own lives, lifeways, and traditions. It’s much easier to focus on the buildings and sites in their own right, for their own sake.

Back in the days when the PRC was beating the drum about hegemonism, we hegemonists pretty much ignored them. Not (I think) that people like Henry Kissinger and George Schultz didn’t see some merit in what they said, but that no one could figure out anything to do about it that didn’t compromise our essential national interests. Similarly in archaeology/CRM/cultural heritage, some of us can recognize that our centralized, bureaucratized, place and thing-dominated models are faulty, but we don’t know what to do about it.

But times change, and things happen, whether we’re ready for them or not. And those once hegemonized can become hegemonists themselves. There’s something to be said for the idea that this is what’s happening today with the PRC vis-à-vis the rest of the world. I wonder what would happen if the people whose sites and buildings we seek to “preserve” in accordance with our own notions of propriety and professionalism ever found a way to exercise real hegemony over us. I wonder how this could happen, and what its outcomes might be.