Petition is Over the Fence

I tossed my petition over the White House fence today.  Actually not; I sent it by Priority Mail – the only likely difference being that it cost me six bucks but I didn’t have to go downtown.

The petition, faithful readers may recall, asks the president to:

“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.”

578 people signed the petition, and I’m very grateful to each and every one of you.  I imagine that all our signatures are wasted, but one has to try.  Thanks very much to all.

I covered the petition with the following letter:

Dear President Obama:

I supported your 2008 presidential campaign, and continue to support you on most issues, but am deeply disappointed with your handling of environmental matters. 

My specific concern is with environmental impact assessment (EIA) under the National Environmental Policy Act (NEPA) and related legal authorities.  EIA in my experience has become largely an exercise in whitewashing plans for projects that often have serious potential for damage to our natural and cultural heritage.  I published a book on this subject in 2009 (Our Unprotected Heritage; Left Coast Press), and hoped that your administration would recognize the problem and do something about it.  There has been no evidence of recognition, and you have made the problem worse with your simple-minded direction to agencies to “fast-track” ostensibly “clean” energy development in the west.  This has had particularly devastating impacts on the environments of Indian tribes, whose interests you suggested you would attend to when you endorsed the United Nations Declaration on the Rights of Indigenous Peoples.

To see if I was utterly alone in my concern about this issue, I sponsored a petition via Sign-on.org – something I had never done before and in which I admit to no expertise.  I can’t say the petition exactly went viral, but it did attract over 500 signatures, many of them from people who are deeply involved in EIA and related fields.  This petition and its list of signatories are enclosed for your reference.

The petition asks you to do something about the core problem with EIA – that it is bought and paid for by the proponents of the projects whose impacts it is supposed to assess.  Addressing this problem would, I recognize, be in diametric opposition to the irresponsible “improvements” currently proposed to NEPA in the House of Representatives in H.R. 4377.

My sad experience with your administration to date does not give me cause for hope, but enclosed is my petition for what it is worth.

Sincerely,

 I don't have the least expectation that this will accomplish anything, but I still appreciate the initiative and responsibility of all who joined me in the effort.

Tom

Indian Tribes Are Insane!

Albert Einstein is said – by some – to have defined insanity as doing the same thing over and over again and expecting different results. By this definition, the Indian tribes of North America are certifiably nuts.


In 1492 and for a couple of centuries thereafter, Europeans landed on these shores in relatively small numbers, relatively lightly armed (though admittedly and usually unconsciously possessing wicked agents of germ warfare), and took over swaths of territory, establishing a toehold from which they would explode out across the continent. Did the tribes organize to oppose this invasion? They did not. Some accepted the foreigners as potential friends and trading partners, some actively assisted them in whomping on other tribes, settling their own scores in the process. Some doubtless just scratched their heads and wondered what the hell was going on. It’s safe to guess that most appealed to the Spirit World for succor and direction.

Bad mistake, obviously, but understandable – the Europeans were a new phenomenon; who WERE these guys? No one could be expected to know how to deal with them.

Fast forward to the late 18th century. The thirteen English colonies along the east coast are getting organized, and the Spanish colonies in the southwest are stabilizing (in advance of their early 19th century radical reorganization) and expanding. But there are powerful tribes in their way, who by now have had almost three hundred years to learn the ways of the wily white-eyes. Do the tribes organize to oppose the expansion of what would become the United States and, for awhile north of the Rio Grande, the Republics of Texas and Mexico? Nope. Despite the efforts of a few visionary leaders, once again it’s every tribe for itself. Some fight but almost always lose, being by now massively outgunned. Some help the Whites, and most cut deals – each largely uninformed by knowledge of what others are doing. Many sign treaties put in front of them by the Whites, in languages they don’t understand, translated by people with vested interests in their acquiescence. Many speeches are made, most appealing to the Spirit World, and often now to the great White father in Washington for relief from sufferings. Whatever happens in the Spirit World it doesn’t have much obvious consequence on earth, and the GWF gravely nods his metaphorical head and authorizes more oppression.

This sort of thing goes on throughout the 19th century, so that by the early 20th, most tribes are confined to reservations, often far from their ancestral homelands, severely restricted in their freedom, and oppressed socially and economically.

In the mid-20th century, some tribal leaders struggle mightily to put their centripetal tendencies behind them, with a rather surprising degree of success. We see the organization of intertribal groups like the National Congress of American Indians (NCAI), and later such effective action organizations as the American Indian Movement (AIM). We have the Trail of Broken Treaties march on Washington, the occupation of Alcatraz and the Bureau of Indian Affairs offices, and enactment of a string of laws to improve the lot of tribes, provide greater opportunities and protections, give a semblance of respect to tribal cultures, religions, languages, values. But by the early 21st century…..

Well, now the GW(sic)F continues, as GWFs always have, to mouth platitudes about respect for tribes, properly consulting them about their concerns, respecting their religions, cultures, values, and environments, while his agents ignore those selfsame variables and the tribes’ loud protests in their rush to – for instance – industrialize the southwestern deserts in the interests of ostensibly “clean” energy production. See for example http://www.blm.gov/ca/st/en/fo/palmsprings/Solar_Projects/Genesis_Ford_Dry_Lake.html and http://www.blm.gov/ca/st/en/fo/elcentro/nepa/ocotillo_express_wind.html.

And do the tribes organize, take collective action to resist this exercise in the arrogance of power? Nope. One or two file suit, but don’t put the resources into the effort to be successful – and certainly don’t cooperate with others to mobilize and deploy such resources. Others sign memoranda of agreement with the GWF’s agents – noir treaties – that acquiesce in the projects’ moving forward based on vague promises to do things better in future. Most just make moving appeals to the Spirit World, the “public,” and the GWF himself; see for example http://eastcountymagazine.org/taxonomy/term/14759, http://eastcountymagazine.org/node/9104. And the beat goes on.

There is, I suppose, virtue in consistency, but on the other hand – for pity’s sake, people, over the last 520 years this sort of strategy has effectively lost you the continent; why on earth (or anyplace else) do you think it will be effective now? Whether Einstein ever said it or not, you must be nuts.

Idiotic Interpretations II: Vitare, Magna, Mitigare

(One in a series highlighting common but counterproductive interpretations of regulations and procedures in historic preservation and environmental impact assessment)

No, Caesar didn’t say it, and it’s a bit less sonorous than vini, vidi, vici, but it’s a catch-phrase that’s very attractive to inexperienced nit-pickers on the staffs of State Historic Preservation Officers (SHPOs) and the Advisory Council on Historic Preservation (ACHP). Their idiotic interpretation of the National Historic Preservation Act (NHPA) Section 106 regulations (36 CFR 800) is that by requiring consulting parties to consider and consult about actions to “avoid, minimize, or mitigate” adverse effects on historic properties, the regulations create a reality in which “avoidance,” “minimization” and “mitigation” are mutually exclusive outcomes, and that measures to achieve them must be considered in rigid sequence. We cannot consider “mitigation measures,” the “thinking” goes, until we have considered measures to “minimize” adverse effects, and we cannot consider “minimization” measures until we have considered ways to “avoid” adverse effects altogether.

Which doubtless seems very reasonable to people who value preservation of historic places above all else – surely our first priority should be to protect stuff unchanged; only if we can’t achieve that should we consider ways to reduce impacts, and only if these efforts fail should we turn to “mitigation” – which means…..

Uh, well, what does it mean? Dictionary.com defines the word to mean “lessening the force or intensity of something unpleasant,” or “the act of making a condition or consequence less severe.” So “mitigation” seems to include “minimization.” And the regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA), at 40 CFR 1508.20, say that:

"Mitigation" includes:
(a) Avoiding the impact altogether by not taking a certain action or parts of an action.

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.

(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.

(e) Compensating for the impact by replacing or providing substitute resources or environments.

So under NEPA, both “avoidance” and “minimization” are forms of mitigation, while under NHPA, if one adopts the sequential model, they’re not. Since we characteristically try to do Section 106 and NEPA compliance concurrently – as encouraged by the regulations under both laws – this creates grounds for considerable confusion.

But the idiocy of the sequential model lies not only in creating confusion, but in driving us to do stupid and narrowminded things. For instance: I’ve recently been involved with a project to build a modest new clinical facility for the treatment of veterans suffering from post-traumatic stress disorder (PTSD) in the National Register-listed designed landscape of an existing medical campus. The facility has to be built on the campus in order to allow patients to use other facilities that exist there, and to make it readily accessible to the campus’ medical staff. Moreover, the beauty and tranquility of the landscape are thought to have potential therapeutic value, so locating the facility elsewhere would defeat its very purpose. And it’s worth noting that the whole campus was designed, back in its period of “historic significance,” for therapeutic purposes, so arguably locating the new facility elsewhere would be inconsistent with the historic significance of the landscape itself.

But according to the logic of the sequential model – which, I hasten to say, we managed to bury in ridicule early in the process of negotiating a memorandum of agreement (MOA) – the agency responsible for the project should have first demonstrated to the other consulting parties that it wasn’t feasible to build the facility someplace else, and then demonstrated that there weren’t ways to “minimize” its impacts, before negotiating about “mitigation” measures. And we could have argued at great, meaningless length about whether jiggering the parking lot around so as to reduce modification of a landscaped berm was “minimization” or “mitigation,” and hence, about in what sequence we should consider parking lot rejiggering vis-à-vis, say, window treatment and roof design.

I submit that most Section 106 cases are more or less like my PTSD example. What we end up negotiating in an MOA is some suite of measures that create a more or less positive outcome from the standpoints of the various parties involved in the consultation. We only complicate the negotiation, and tempt ourselves to engage in pointless semantic arguments, when we try to apply a rigid sequential model.

True, the Section 106 regulations do routinely direct us to negotiate ways to “avoid, minimize, or mitigate” adverse effects, implying that the three verbs refer to distinguishable phenomena. But even if this were true – and I’d argue that in the real world it’s not, despite the regulations’ inartful use of language – the regulations do not require that the phenomena be considered in sequence. I can walk to the grocery store or drive my pickup; while it is true that I can’t do both simultaneously, I certainly can, and do, consider both simultaneously when I realize that I’m low on food. In the same way, even if we hold that “avoidance,” “minimization,” and “mitigation” are separate things, we are not logically – or, I would argue, legally – required to consider them in sequence.

In a 106 consultation we should consider and negotiate flexibly and creatively about ways to accommodate the purposes of a proposed project with the interests of historic preservation, with an eye to other relevant public interests and values. Imposing a rigid structure on the consultation process – especially one based on questionable semantic distinctions – restricts our flexibility, diminishes our creativity, and is not helpful to anyone.

Demolishing Memory Palaces

In connection with some Earhart research, I’ve been reading Joshua Foer’s entertaining bestseller Moonwalking with Einstein – about “memory athletes” and the methods they use to train their brains to perform remarkable feats of memorization.  A central – and very ancient – system turns out to be what Foer calls the “loci method” – associating things-to-be-remembered with vivid images placed in familiar places.  Memory athletes construct imaginary (though grounded in reality) “memory palaces” in which to stash things they need to retrieve, but such “palaces” don’t have to be buildings.  In one striking paragraph Foer throws some inadvertent light on why the loss of what we call “traditional cultural properties” is so damaging to a society’s cultural integrity – regardless of whether the “TCP” is technically “sacred” or meets the National Register criteria.  His reference below to the Apache is of course the result of reading Keith Basso’s spectacular work, but the same observation applies, I think, to indigenous people (and indeed people, period) everywhere.

“In Australia and the American Southwest, Aborigines and Apache Indians independently invented forms of the loci method.  But instead of using buildings, they relied on the local topography to plot their narratives, and sang them across the landscape.  Each hillock, boulder, and stream held part of the story.  ‘Myth and map became coincident,’ says John Foley, a linguistic anthropologist at the University of Missouri who studies memory and oral traditions.  One of the tragic consequences of embedding narrative into the landscape is that when Native Americans had land taken from them by the USA government, they lost not only their home but their mythology as well” (Foer 2011:97).

Of course, losing legal possession of a landscape (not always a well-developed concept among indigenous societies anyway) doesn’t necessarily sever one’s memory-links with it, as long as one continues to have access to it, and as long as the landscape isn’t too desperately transformed.  So members of Indian tribes in the western U.S., for instance, have been able to maintain their associations with traditional landscapes that have gone into federal ownership, and hence to maintain the integrity of their place-linked cultural traditions.

This is what makes the federal government’s rush to develop wind and solar energy projects all over those “unused” federal lands in the west so sad – and so reprehensible in view of the Obama administration’s pious platitudes about environmental protection and tribal consultation.  Those aren’t just chunks of land being torn up for wind turbines and solar arrays – they’re the memory palaces of tribal story-tellers, whose demolition strikes at the heart of tribal identity.

IDIOTIC INTERPRETATIONS: A SERIES (I)

Being a series of ill-natured comments on commonplace but (a) inaccurate and (b) counterproductive interpretations of various federal laws and regulations.

Idiotic Interpretation #1:  

Section 304 of the National Historic Preservation Act (NHPA), which directs that Federal agencies and certain other parties keep information on historic properties confidential if specified conditions are met, does not apply unless a property has been determined to be eligible for the National Register.

How it’s inaccurate: 

Section 304 does not refer to properties that have been determined to be eligible for the National Register; it refers to properties that are eligible for it.  Section 304 (a) says:

The head of a Federal agency or other public official receiving grant assistance pursuant to this Act, after consultation with the Secretary, shall withhold from disclosure to the public, information about the location, character, or ownership of a historic resource if the Secretary and the agency determine that disclosure may —

(1)       cause a significant invasion of privacy;

(2)       risk harm to the historic resources; or

(3)       impede the use of a traditional religious site by practitioners.

“Historic resource” is defined at Section 301(5) as:

any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion on the National Register, including artifacts, records, and material remains related to such a property or resource.

Before somebody hits me in the face with a dead (or not dead) Schrödinger’s cat, I realize that in the quantum universe it’s said to be the case that a thing doesn’t assume a particular state until it’s observed to do so, but most of us go about our lives in a Newtonian world, and government operations tend to do the same.  In this everyday universe, as I’ve argued more often than I care to remember, a thing is a thing if it exhibits the characteristics of a thing, regardless of whether anybody happens to have determined it to be a thing.  Granite is granite even if it is fifty miles down in the ground and has never been observed.  It’s granite if it meets granite’s criteria – being a very hard, granular, crystalline, intrusive igneous rock consisting mainly of quartz, mica, and feldspar.  A geologist’s inspection of the rock doesn’t make it granite; it just tells us whether it does or does not meet those criteria.  A wetland does not become wet upon being thus delineated following Corps of Engineers standards; it’s a wetland because it is wet, or exhibits other wetland qualities.  Delineation is the process by which we decide whether it’s wet enough to be treated as such under the Corps’ regulatory regime.  A rock is granite if it meets granite’s criteria – being a very hard, granular, crystalline, intrusive igneous rock consisting mainly of quartz, mica, and feldspar; a geologist’s inspection of the rock doesn’t make it granite; it just tells us whether it does or does not meet those criteria.  In exactly the same way, a place is an historic resource if it meets the National Register criteria, whether anybody has detected that fact or not.  Determining eligibility is how we decide (if we must) whether it meets those criteria.

Why it’s counterproductive: 

In a general sense, if we define “eligible” as “determined eligible,” then the whole structure of Section 106 review collapses, because under Section 106 agencies are responsible for taking into account only effects on properties included in or eligible for the Register.  If “eligible” means “determined eligible,” then agencies don’t have to consider effects on a place until somebody, somehow, has found, described, and found that place to be eligible; it’s certainly not the agency’s responsibility to do the finding, describing, and determining.  Yet the Section 106 regulations – following Executive Order 11593 – say that determining eligibility is the agency’s responsibility, so the equation of “eligible” with “determined eligible” undercuts the rationale for much of the regulatory system.

Specific to Section 304, saying that an agency can’t keep information on a place confidential until it’s been determined eligible means that agencies have to collect information and share it with others before they can decide not to share it with others.  That defeats the whole purpose of Section 304, which of course is to keep information on historic places out of the hands of those who would misuse it. 

But, you protest, Section 304 says an agency has to make its decision about withholding information in consultation with the Secretary of the Interior, and can we imagine the Secretary not insisting that eligibility be formally determined in the process of deciding about confidentiality?  Well, probably not, which is one reason I tried hard in drafting the 1992 revision of Section 304 to make it the Advisory Council that had to be consulted, rather than the Secretary.  The logical context in which Section 304 questions would arise, I knew, would be mostly that of Section 106 review, and the Council might be a little more cognizant of the real world and a little less hung up on minutiae than the Secretary.  But the Secretary – i.e. the National Park Service (NPS) – insisted that this was its turf, and even though it hadn’t and still hasn’t the least interest in implementing Section 304, or the brains to do so constructively, NPS prevailed.  And since determining eligibility creates a form of job security for underqualified and otherwise unemployable NPS preservo-bureaucrats, it’s expectable that NPS would insist on the interpretation it has apparently imposed on the statute. 

But it is not a necessary interpretation; it does not follow from the statutory language, and it’s inconsistent with the way “eligible” is interpreted everywhere else in the statute.  While I have no expectation whatever that the Secretary, or the ever-pliable Advisory Council, will make any moves to rethink the interpretation that seems to have become embedded in what passes for their thinking, I suggest that the rest of us explore less idiotic ways to interpret the statutory language.

Commenting on the need for NPS Traditional Cultural Property Update

The U.S. National Park Service (NPS), National Register of Historic Places, has asked its “preservation partners” and others to advise it about the need for new guidance on “traditional cultural properties” and “Native American landscapes.”  If you want to comment, address nr_info@nps.gov, and be sure to put “TCP/NAL Comment” in the subject line.  Below are my comments:

I see that you have requested “comments on identifying, evaluating, and documenting traditional cultural properties and Native American landscapes” from “tribal, national, state, and local historic preservation partners, National Park Service regional offices and parks, other Federal agencies, and the public at large.”  Presumably because I fall into none of the above categories, you have not requested such comments from me, but I will provide them anyway, below.

You say:

With the 1990 release of National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties, NPS clarified a broader scope of properties that could be considered eligible for listing in the National Register of Historic Places (NR) for their significance as Traditional Cultural Properties, and provided written guidance on working with these properties. 

Comment:  This is a misleading introduction, to the extent it is comprehensible as an English language sentence.  It implies that Bulletin 38 expanded the range of property types that could be considered eligible for the Register, and it did no such thing.  The Bulletin simply provided a name for such properties, examples of which had been determined eligible and listed on the Register since the very beginning of the Register’s existence, and provided some guidelines for identifying and evaluating them.

You say: 

This policy direction was followed by the provision in the 1992 amendment to the National Historic Preservation Act stating:  “Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion in the National Register.” 

Comment:  It might be worth noting that this amendment did not appear out of thin air.  It was a tribally encouraged congressional reaction to the flat refusal by the Bureau of Land Management (BLM), Forest Service, and Bureau of Indian Affairs (BIA) to pay any attention to Bulletin 38.

You say:

While Bulletin 38 remains an essential, basic resource for identifying, evaluating, and documenting TCPs, in recent years the number of requests for additional assistance in this regard from State and Tribal Historic Preservation Offices, Federal agencies, and preservation professionals has increased significantly. 

Comment:  It may be revealing that such requests have apparently not come from tribes or members of the public.  Does this tell you anything?

You then list a series of topics on which you are considering publication of more “guidance.”  Let me first suggest that you take a good hard look at the guidance you already have, and consider ways to resolve inconsistencies that exist among the voluminous piles of paper you have generated in the past.  This should certainly be done before you burden the world with MORE of the stuff.  Let me also suggest that if you’re going to issue guidance, you get help from people who know something about the subject, and that you pay some attention to the literature that has been produced in the last 22 years dealing with it.  I realize that these suggestions may run counter to long-standing NPS policy.

Below are comments on each of the points on which you say guidance is in order:

·         What constitutes a “traditional” community

Comment:  A traditional community is a community that values its traditions, including but not limited to communities of American citizens.

·             “Continuity of use” by a traditional community

Comment:  I am at a loss to understand where and how you have come up with this “continuity of use” nonsense.  It is not in the Bulletin, but NPS keeps coughing it up as an excuse for not recognizing a place as eligible.  It is particularly galling when applied to a tribal property.  “Well, sure, we ran all over you militarily, killed most of you with our diseases, marched your survivors off to a reservation 500 miles away from this place you say you value, and imprisoned you there – so gee, we’re sorry, but you haven’t continued your use of the place, so it’s not eligible.”  You really should be ashamed of yourselves for even murmuring this sort of insulting drivel.

·         Evolving uses of resources by a traditional community

Comment:  Yes, they evolve, as do communities.  So what?  What business is it of yours whether and how they do?

·         Multiple lines of documentary evidence

Comment:  Multiple lines of evidence happen.  Sometimes they accord with one another, sometimes they conflict.  That’s life.  So what?

·         Broad ethnographic landscapes

      Comment:  Broad or narrow, the term “ethnographic landscape” is insulting to those who value cultural landscapes; it implies that a landscape is important because of its role in ethnographic research.  It may be, but that’s usually beside the point.  Traditional cultural landscapes (including but not limited to many "Native American landscapes") are simply that – traditional cultural properties that happen to be landscapes, landscapes that have traditional cultural value.  Ethnography has nothing to do with it.  Please discard the term.

·         Property boundaries

      Comment:  As Bulletin 38 says, boundaries are often difficult if not impossible to define.  They are usually arbitrary, and usually irrelevant to the way a community (notably a tribe) defines the place.  They comprise an artifact of the National Register’s roots in local planning and zoning.  They are often irrelevant to determining effects under NHPA Section 106 – the real world context in which traditional cultural properties are most often considered.  Any guidance should stress that they need be defined only to the extent there is a practical reason for doing so.

·         Resource integrity

      Comment:  If the people who value a place say it has integrity, it has integrity.  It is that simple.  The place is significant in people’s minds, so if in their minds it has integrity, it obviously has integrity.  This is not rocket science. 

You go on to say that you are willing to consider other “user-identified” TCP-related issues.  I doubt if you would define me as a “user,” and I do not intend to cater to the Register’s intellectual lassitude by re-stating what I have written in the past.  Rather, I request that you consider the issues discussed in at least the following of my publications:

·     Places that Count: Traditional Cultural Properties in Cultural Resource Management.  AltaMira Press 2003

·      “Rethinking Traditional Cultural Properties?”  George Wright Forum 26:1:28-36, 2009, George Wright Society, Washington DC.

·     “A Listless Approach to Resource Management.”  Heritage Management 3:1:97-100, 2010.

·     Chapters relevant to traditional cultural properties in CRMudgeoneity, .  Kindle Books, Amazon.com, 2011

Thank you for the opportunity to comment.  I trust you will not find my comments "inappropriate ..... or misleading or discriminartory" (sic)

Thomas F. King

Kick the Can: Do a Preservation Plan

Another segment for my forthcoming book, How to Destroy Historic Landmarks, wherein practical advice is offered to proponents of projects whose effects will include the destruction of historic buildings, archaeological sites, indigenous spiritual places, cultural landscapes, and other such impediments to economic development.


The Delights of Delay

Since you’re anxious to get your project under construction, when confronted with some sort of “cultural heritage” that has slimed its way into the path of your project, your tendency may be to seek the quickest way possible to get rid of it. In some cases, however, it may serve your interests – no, it definitely serves your interests – to opt for a strategy of delay.

Provided, of course, that what’s delayed is doing anything about that “heritage” – not your project.

The HPP by Whatever Name

The idea is to maneuver the NIMBYs or tribes or preservation nuts who are opposing your project into kicking the can of preservation down the road, without impeding decision making about your project. In the United States this is most often done by promising to develop an “Historic Preservation Plan” – or maybe an “Historic Resources Management Plan” or a “Cultural Resources Management Plan.” The name isn’t important, so let’s call it an HPP for short.

The Deal

Here’s how it works. You’ve had all the necessary surveys and studies done, and something’s been found. Let’s say it’s a landscape dotted with places where an indigenous group’s ancestors lived, buried their dead, hunted, gathered, reaped and sowed, and where that group’s descendants carries out religious practices to this day. Your project needs to go right in the middle of it.

Are you screwed? Not if you play the HPP card skillfully. It may well be that you can get everyone – or at least the federal agency responsible for your project, the State Historic Preservation Officer (SHPO), and the Advisory Council on Historic Preservation (ACHP), and under U.S. law they’re the only ones who really count – to agree that it will be OK for your project to go forward, provided an HPP is prepared and implemented. They may not even require that it be implemented, as long as it’s written up. Agency people and SHPOs have gotten very used to this sort of thing; they'll very likely jump at the chance to develop an elaborate, many-paged, multi-claused memorandum of agreement that lays out, in more or less incomprehensible language, how the HPP will be put together, what it will contain, and how it will be reviewed and approved by all the necessary parties down the road. Everybody solemnly signs the agreement, and the law has been complied with; your overseeing agency has “taken into account” the effects of the project, and set up a plan for addressing them, supposedly, to everyone’s satisfaction. Now it can approve your project, and you’re good to go.

What You'll Have to Do

 You’ll probably have to task your “CRM” contractor to write up the HPP, and that will cost you a few bucks, but that’s a small price to pay for getting your project over the “historic preservation” review hurdle. Your contractor can spend the next year or more writing the plan, earnestly discussing it with whoever’s interested, going through draft after draft after draft – and all the while you’re acquiring land, mobilizing your construction crews, and getting it on to build your project. By the time it dawns on anybody in a position to do anything about it (if any such body cares) that no plan on earth can “preserve” the place while your project goes forward, your project is a fait accompli, or at least so far advanced that there’s no realistic way to stop it any more.

Can People Really Be This Dumb?

Yes.  You may well ask why anybody would be stupid enough to accept this kind of “solution” to a conflict between heritage and development – but for heaven's sake, don't! Accept it, and try not to grin until you’re out of the room having a drink someplace where you won’t be noticed. Major agencies of the U.S. government have adopted the HPP strategy as their major approach to dealing with heritage/development conflicts. SHPOs and the ACHP have recognized it as a way to create the impression that sticky cases have been resolved, getting them off their desks and making them – the SHPOs and ACHP – look like they’re accomplishing things. Even some tribes and historic preservation advocates have been bamboozled into joining the kick-the-can game, because the proposal for a “plan” is couched in high-sounding language and promises lots of good stuff – though this usually really amounts only to more (and more and more) studies and meetings and discussions and consultations.  And besides, they’re assured by the responsible agencies, SHPOs and ACHP that this is the way things are done; this is the way the law’s complied with.

Kick That Can!

So when your consultant starts talking HPP – or CRMP or HRMP or whatever – listen carefully and make sure that what he’s talking about is something that will be done after the project is approved, so it can have no influence on the go-no go decision. If that’s what he’s proposing (and it almost always is), then going for it may be a very effective way to move your project forward and leave the NIMBYs, tribes, and old-place huggers choking in the dust.

Try the Avoidance Angle

Another segment of my book-in-progress: How to Destroy Historic Landmarks. The first piece was posted May 1, 2011, and manuscripts to date appear in Chapter 16 of CRMudgeneity (http://www.amazon.com/CRMudgeoneity-Readings-Kings-2005-2011-ebook/dp/B006G25BB4)

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One of the amusing ironies of cultural resource management (CRM) is that often the cheapest and most efficient way to destroy a historic place is to avoid it.

Here’s how it works. You’re planning a project that has some flex to its design – maybe a road, or a fiber-optic line, or an array of wind-power turbines. You have your CRM contractor do a survey and he finds something of putative historic or cultural significance – let’s say a place where somebody lived a century or a millennium ago and left artifacts lying around. You have enough flex in your project that you can shift it a bit to miss whatever your contractor has defined as the “site,” or “resource,” or “historic property,” or whatever he calls it. You then propose to whoever’s regulating your project that you’ve “avoided” the place.

Under U.S. law, this can have several kinds of felicitous result, depending on how friendly and/or inattentive your regulators are.

They may agree that by “avoiding” the place, you’ve taken it out of the game altogether; it may wind up in a sort of regulatory never-never land. If the “avoided” place is the only putative historic property you’re dealing with, you may get agreement that there are “no historic properties subject to effect” by your project, and you’re good to go.

If there are other properties that you can’t avoid, then your contractor or your regulator can usually write up an agreement focusing only on those places, with a dismissive introductory clause saying that “those sites (or resources, or whatever) that cannot be avoided will be….” (excavated by archaeologists, painted puce, etc.), and saying nothing further about the “avoided” places. And since “avoidance” seems like such a good, positive thing to do, the regulators often won’t even ask by how far you’re avoiding the things – half a mile? Three feet? – or how you’re going to make sure the “avoidance” occurs.

Since archaeologists in particular tend toward quivering paranoia about releasing information on the locations of sites they find, for fear they’ll be ravaged by the hordes of slavering looters they think are lurking behind every rock and cactus, the chances are pretty good that you won’t even be expected to document where the places are that you’re avoiding, or to mark them in any way to promote their avoidance. Then once the regulatory process is done and your project’s underway, you can have your way with them. “Accidentally” grade them out of existence, or just ignore them and let time, traffic, and maybe even those awful looters take care of them for you.

If your regulators are a bit more alert, they may insist on some kind of plan or program to ensure that “avoidance” happens – perhaps through the erection of fences and/or hiring “monitors” to watch the construction and (supposedly) make sure it doesn’t damage the “avoided” place. This can cost a little money and sometimes be a bit of a pain in the behind, but it’s pretty cheap and it usually doesn’t last long. Once your project’s in, the monitors go away and you can carry on. And there’s a lot of variability among monitors; some won’t notice much if they’re properly engaged doing something else – if you catch my drift.

One quibble that almost no one raises is that the pertinent laws and regulations in the U.S. – NHPA and NEPA – aren’t really about places and things, but about effects on places and things. So if you’re physically avoiding, say, a place where Indian tribal practitioners pray to the spirit world, you may still have a considerable effect on the way the tribe uses the place, and under the law you and the regulators ought to be considering such effects. But as I say, this is a quibble that’s seldom raised, and is particularly easy to avoid if you keep the tribe – or whoever else might use the place or value it for cultural reasons – in the dark. This is usually pretty easy to do (See my forthcoming chapter on writing letters to elicit no response)

The Knee-Jerk Anti-Liberal

There is a great hue and cry echoing around American archaeology these days over two new TV shows – “American Digger” on Spike TV and “Diggers” on the National Geographic Channel. Both supposedly glorify and encourage metal detecting and digging up antiquities, so we are encouraged, vigorously, by our various professional and semi-professional societies to rise up in righteous wrath and smite their producers and sponsors with petitions, nasty letters, and other expressions of our fury.

I have demurred, suggesting that perhaps people are going a bit overboard. I’ve also expressed some bemusement with the fact that some of the people taking the greatest umbrage at the “Digger” shows are the very contract archaeologists who make their livings helping clients use archaeology to run roughshod over the interests of descendant communities.

One response I’ve received to my objections is from a much-respected Canadian colleague, who writes:

C'mon, Tom --kneejerk anti-liberal-kneejerk can get silly. The issue is that the U.S., in contrast to almost every other nation, does not protect its patrimony except on public domain, AND THE REASON IS THAT IT ISN'T "OUR" PATRIMONY, it's the patrimony of the conquered race. Granted, the outcries haven't recognized this, because it is far out of mainstream American archaeology. So how about raising the issue that racism has kept our land's heritage (not really PATRImony since only a few million citizens have paternal lineages including First Nations) largely in the possession of private persons with funds to purchase and maintain title to land.

So now I am anti-liberal; oh well, at other times I've been counter-conservative and even proto-progressive. If I work hard and apply myself, can I become the AntiChrist? The possibilities are endless. Seriously, is there no possibility of rising above labels here?

I also have to question my critic’s analysis of “the issue.” I really don’t think that the issue in the case of the Diggers shows has much to do with whether the U.S. or any other nation “protects” its patrimony on public domain lands or elsewhere. For one thing, the notion that others in fact “protect” their patrimony by imposing draconian prohibitions on its disturbance by unlicensed individuals is a pretty funny one, especially when lobbed southward by a Canadian. Archaeological sites (to consider only one kind of “patrimony”) overlying Alberta’s tar sands may be well “protected” from artifact collectors – I don’t know – but I’d be very surprised if they’re being spared the attentions of the fossil fuel industry. Here in the Lower 48, Canadian mining companies are among the most rapacious with which Indian Tribes (“First Nations,” I know, to you oh so respectful northerners) have to deal in trying to protect their cultural heritage. The whole equation of “protection” with reserving artifact ownership to the crown, or whatever a government is called, is questionable at best. Our neighbors to the south are famous for this: no messing with el patrimonio nacional, amigo, unless you happen to be the government or an industry with the government in your pocket.
And as Raimund Karl has shown in his fascinating article, “On the Highway to Hell” (See my review at http://crmplus.blogspot.com/2012/01/highway-to-hell-worth-reading.html), even in countries that ascribe ownership of antiquities to the government, people collect them, and keep them, and attempts to prohibit such collection and keeping tend to fail.

Turning to my critic’s broader argument, is it true that we in these Benighted States refrain from “protecting” our patrimony because it’s not that of the conquerors but of the conquered? Being Canadian, I suppose my critic can be forgiven for not knowing that the folks we call the Founding Fathers had more than a few reasons for writing a constitution that carefully protected rights to private ownership of property, and carefully circumscribed the powers of government. But they did. They’d just shaken off what they believed to be an oppressively controlling monarchy, and they were products of Enlightenment thinking with its emphasis on the rights and genius of the unfettered individual. I really doubt if the likes of Adams and Madison and Jefferson gave much if any thought to whether antiquities ought to be preserved. Private ownership of antiquities from lands other than the public domain was a minor and little-considered byproduct of the care with which the framers of the constitution sought to constrain the powers of government over the governed. So, no, I won’t “raise the issue that racism has kept our land's heritage… largely in the possession of private persons,” because I think that “issue” is a gross oversimplification.

But my main objection to the brandishing of firebrands and torches in which my colleagues are engaging is the same one I offered here back on November 1, 2007 in my post entitled “The Mob” – now available in Chapter 6 of CRMudgeoneity (http://www.amazon.com/CRMudgeoneity-Readings-Kings-2005-2011-ebook/dp/B006G25BB4), from which, with the reader’s indulgence, I’ll here insert an extended quote. “The Mob” was about a prohibition on what it called “commercial activity” that the Register of Professional Archaeologists (RPA) was at the time preparing to insert into its Code of Ethics. In other words – Registered Professional Archaeologists are to have no truck with the buying and selling of antiquities. Happily the RPA Code does not apply to me, but I still thought such prohibition a dumb idea, and said:

Prohibition is a blunt instrument, particularly when wielded by those with no power to enforce it. We all know what happened when the U.S. tried to prohibit the consumption of alcohol. Many of us have had first hand experience flaunting the continuing prohibition on the use of recreational drugs. These prohibitions have had the full force of the state behind them. I wonder what makes archaeologists think they -- with no power whatsoever -- can prohibit the commercial traffic in antiquities.

If forced to answer this question, I imagine an honest supporter of the RPA prohibition would say that it is not meant to prohibit commercial traffic, only to prohibit archaeologists from participating in it. But if that is so -- if it isn't designed to stop the practice that is actually destroying archaeological sites and data, but only to keep archaeologists from documenting those sites and data as they are destroyed, does this not suggest a degree of counterproductivity?

Nations and international organizations -- no more immune to hysteria than professional bodies -- have of course enacted laws and issued declarations against artifact trafficking, and based on their own statistics may be able to report a measure of success. A collection is intercepted in transit here; an artifact is repatriated there; a dealer or digger is prosecuted someplace else. But are these actions making a dent in the international antiquities market? Since we have no real data on that market, we cannot know, but to judge from what we see in the popular media, it appears not. We're told that antiquities looting is rife in Iraq and Afghanistan, in Peru and Chile; it certainly continues throughout North America. Those looters are not looting just for the fun of it; they have people to whom they sell the stuff, and there is -- must be -- a voracious cadre of collectors who make it worthwhile for such dealers to deal. Prohibition of antiquities trafficking, I suggest, has been no more effective than prohibition of alcohol consumption or marijuana puffing.

But who cares, really? What's important to a mob is not whether its cause makes rational sense, but how pursuit of the cause makes its members feel. In generating feelings of propriety, the imposition of ethics like that of the RPA are doubtless highly effective. Everyone can feel so good about themselves, so professional, and that's really far more important than the condition of the archaeological record, isn’t it?

When prohibition of alcohol consumption didn't work, governments re-legalized it and sought to control it through various forms of regulation. Some regulatory measures work pretty well; others don't; there's room for productive argument about how to tweak the rules and systems. The U.S. is gradually shuffling its way toward some kind of similar accommodation with regard to recreational drugs. Debate continues about how best to control access to firearms and regulate abortions. Why, I wonder, can't we try something similar with regard to the private ownership of and commerce in antiquities?


I have no way of verifying it, but I suspect that a substantial percentage of the people who collect antiquities would prefer to do so legally, and would more highly value an object with documented provenience than one without. If this is so -- and again I stress that neither I nor anyone else knows whether it is so -- then it ought to be possible, to some extent at least, to co-opt the commercial market, to dry up the market for illicit artifacts by creating one for those gathered using archaeological methods. But such a market could be created, of course, only if we actively engaged with the traffickers, rather than prohibiting such engagement.


Would engagement be a perfect or complete solution to the problem of looting? Of course not -- any more than engagement with those who traffic in booze is a perfect solution to alcohol abuse. But however shocking and saddening it may be to the moralists at the head of the mob, that's the way the world works. Even with things on whose prohibition there is broad popular agreement -- murder, rape, incest -- we find ourselves having to make nuanced distinctions in order to accommodate the shades of gray with which the real world presents us. Is it all right to kill in self-defense? In war? When is sex consensual and when is it not? How closely related can a given couple be, in a given society, and still be acceptable sexual partners? As ostensible social scientists, we ought to be able to work within such imperfect human systems to achieve our goals. But we are not; we are just as simple-minded as any other mob.

Others and I will be discussing the Diggers shows with Joe Schuldrenrein on his VoiceAmerica show this coming Wednesday, March 7 at 6 pm Eastern.  You can tune in at http://www.voiceamerica.com/show/1975/indiana-jones-myth-reality-and-21st-century-archaeology

"Historic Properties" and "Cultural Resources" -- Take 17

I would’ve thought this issue would have been long since resolved, but just the other day I got the following from a much-respected colleague in the west:


I keep running into situations where NEPA documents are produced that deal with cultural and historic resources as synonymous with “Historic property.” I can’t find anywhere that says cultural and historic resources under NEPA are or should be confined to places that qualify for the National Register. Yet, time after time, EAs/EISs include chapters on “Cultural Resources” that only talk about identification and evaluation efforts in terms of looking for National Register eligible places. And everything that doesn’t qualify gets dropped from any further consideration.

Have I misinterpreted the scope and breadth of what NEPA should be concerned with? Shouldn’t cultural and historic resources under NEPA include not just eligible places, but practices, and other intangible qualities and values that are considered culturally important to and by folks and groups who may be affected by a project? If there’s a plant gathering location out there in a project area that’s been used for a couple years to gather materials for important medicinal or ceremonial purposes, shouldn’t that qualify as a cultural resource worthy of consideration under NEPA regardless of that place’s historicity? Is NEPA really constrained by the National Register, or has the rest of the world just chosen to overlook the distinction?

I was able to give my interlocutor copies of several publications in which I’ve written about this problem, and point him toward such things as 40 CFR 1508.27, where “historic” and “cultural” resources are laid out as two separate things to consider under NEPA, but I doubt if it will do much good. Anybody who’s so bone-stupid as to use “cultural resource” as a synonym for “historic property” is probably beyond being educated.

But just in case there’s somebody out there who does “CRM” and “EIA” and who’s both willing and able to think about the matter, here we go again – VERY briefly:

1. “Historic property” or “historic resource” is defined in the National Historic Preservation Act as a place that’s included in or eligible for the National Register.

2. “Cultural resource” is not defined in statute or in government-wide regulation, so we’re left with dictionary definitions:

a. “Cultural,” says the free online dictionary, means “of or relating to a culture or civilization.”

b. “Resource,” says the same source, means “something that can be used for support or help.

3. So a “cultural resource” is something relating to a culture or civilization that can be used for support or help, presumably by someone wishing to participate in that culture or civilization.

4. Such “resources” might include languages, modes of discourse, story telling, songs and dances. They might include ways of using plants, animals, water, and other aspects of the environment. They might include oral and written history.

5. They might, in short, include one hell of a lot more than places included in or eligible for the National Register

6. NEPA analyses are supposed to address impacts on the “quality of the human environment.” That environment obviously includes “cultural resources” as defined above.

7. If you equate “cultural resources” with “historic properties” – or even with places that might be historic properties but haven’t yet been evaluated, as some self-defined “experts” do – you’re very systematically not addressing most of the cultural resources actually affected by whatever it is whose impacts you’re analyzing. That’s not consistent with the requirements of NEPA.

8. So you’re breaking the law, and you ought to stop it. Or others ought to sue you silly.

I’m well aware that some federal agencies have put language in their own regulations and guidelines that define “cultural resource” in some more narrow way than as “resource pertaining to culture,” but I’m not persuaded that this gives the practice any legitimacy. Saying something stupid in official jargon, or in chorus, does not make it smart, or right.

That Petition Again

Faithful readers will recall that I've petitioned the president to seek amendments to NEPA, or issue an executive order, requiring honest, objective impact assessment that respectfully involves and is responsive to the public, and that happens before decisions are made to promote projects, rather than afterwards (as seems to be current White House policy).  We've still got under 400 signatures, and I'm currently scheduled to deliver the petition on March 1st.  So if you agree that reform is needed in the way environmental impact assessment (including real consultation with tribes and other affected parties, and decent attention to the cultural environment) and you haven't signed yet, please go to http://signon.org/sign/president-obama-reform.fb1?r_by=2072799&source=s.fb and sign up -- and encourage others to do the same.  The topic is sufficiently esoteric that I didn't expect the petition to exactly go viral, but it would be nice to have at least 500 signatures by the time I toss it over the White House Fence.

"Features"

Congratulations to the Pechanga Band of Luiseño Indians (Riverside County, California) on their victory over Granite Construction Company, which proposed the gigantic Liberty Quarry in the midst of the Luiseño Ancestral Origin landscape. The County Planning Commission denied a permit for the quarry some time ago, based on its likely adverse effects on the environment, health, tourism, the economy, the transportation system and the cultural values of the Luiseño.  Granite appealed the denial to the Riverside County Board of Supervisors, which upheld the denial last week.


During his presentations to the Board of Supervisors, Granite’s legal counsel, Mark Harrison, argued that neither Granite nor the County was obligated to consider the cultural significance of the overall landscape because “the law” required only consideration of its constituent physical “features.” My own counter-argument was that Mr. Harrison’s logic would permit one to drop a quarry into Washington DC’s National Mall as long as one didn’t knock down the Washington Monument or demolish the Smithsonian museums. I don’t know if this carried any weight with the Board; there were so many reasons to deny the Liberty Quarry permit that one technical argument probably didn’t make much difference one way or the other. Since Mr. Harrison thought his proposition sensible enough to try to sell it to government decision-makers, however, it seems to me worth responding to in something a bit more public than a hearing record.

Though Mr. Harrison did not say what “law” he was referring to (The project was being considered under the California Environmental Quality Act), the only case law he cited was Te Moak Tribe of Western Nevada et al v. U.S. Department of the Interior et al (07-16336), a federal case decided by the 9th Circuit Court of Appeals in June 2010. Mr. Harrison said:

The 9th Circuit Court of Appeal has recently dealt with a claim very similar that’s being made here where an Indian tribe said large areas in the desert in this case were culturally valuable landscapes that needed to be protected and no disturbance was allowed. And what the 9th Circuit said is, “although it is understandable that the tribe values the landscape of the project as a whole, the Natural Historic Preservation Act requires that the lead agency protect only against adverse affects on those features.”

Setting aside the hyperbole about what “needed to be protected” and where “no disturbance was allowed” – since neither federal nor California environmental or historic preservation law demands “protection” or disallows disturbance – what did the 9th Circuit actually say in the decision from which Mr. Harrison cherry-picked his quote?

The court was dealing with a case in which the Bureau of Land Management (BLM), in considering a mining permit, had sought to comply with Section 106 of the National Historic Preservation Act (NHPA) by, among other things, consulting with the Te Moak about the proposed mine’s potential impacts on historic properties, including National Register-eligible traditional cultural properties (TCPs). The Te Moak asserted that a largish landscape was an eligible TCP. In BLM’s view, only parts of the landscape – a cliff, various rock outcrops, each itself apparently embracing a fairly substantial area – were eligible, and apparently the State Historic Preservation Officer (SHPO) concurred. The court’s decision does not indicate that the tribe availed itself of the opportunity to resolve this disagreement through referral to the Keeper of the National Register, as it could have by asking either the Advisory Council on Historic Preservation (ACHP) or the Keeper herself to request that BLM refer it. My assumption is that it did not. If this is the case, then BLM’s determination, whether appropriate or not, was definitive.

BLM gets institutional stomach cramps when it has to mutter the acronym “TCP” or acknowledge that the National Register Bulletin (#38) in which the term “traditional cultural property” was invented has any application to its responsibilities, so it calls such places “properties of religious and cultural importance” or PRCIs. The court accepted this terminology as equivalent to “TCP” (although it’s really not quite). The section of the court’s decision from which Mr. Harrison extracted his quote reads as follows:

Plaintiffs are correct that the PCRIs designated by the BLM as eligible for the National Register encompass large areas of land. The NHPA, however, does not mandate protection of all parts of an eligible PCRI. Section 106 requires a federal agency “[to] take into account the effect the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” 16 U.S.C. § 470f; see also 36 C.F.R. 800.6(b). The NHPA regulations, however, define an “effect” as an “alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register.” 36 C.F.R. § 800.16; see also id. § 800.5(a)(1) defining an “adverse effect” as the direct or indirect alteration of “any of the characteristics of a historic property that qualify the property for inclusion in the National Register in manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association”). Here, the eligible PCRIs’ characteristics described in the BLM’s April 2004 report are discrete features such as the top of Mt. Tenabo, the “white quartz ledge on the south face Mt. Tenabo” called the White Cliffs, a network of caves within the mountain, and burial locations.

Characteristics that made Horse Canyon eligible included the specific resources available there: perennial surface water and unique medicinal and edible plants. Although it is understandable that the Tribe values the landscape of the project area as a whole, the NHPA requires that the BLM protect only against adverse effects on the features of these areas that make them eligible for the National Register. Plaintiffs have not demonstrated that the exclusion zones will fail to prevent any adverse effects to these features.

The general rule cited by the court here is that found in 36 CFR 800.5(a)(1), that an adverse effect on a historic property occurs when one alters “any of the characteristics……….that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association.” In the Te Moak case, the 2004 BLM report that the Tribe apparently did not contest identified these “characteristics” mostly as “discrete features” like the white quartze ledge, the caves, and so on. But the court also referred to characteristics that are not geographically specific features – such as perennial surface water and unique plants.

The point is that “the law” – in the form of the Section 106 regulations – doesn’t say anything about “features;” it refers to “characteristics.” The characteristics of an historic property that make it significant may be physical features of a site, building or landscape, or they may be other, less tangible things – ambience, a viewshed, the quality of the light, the movement of animals through a landscape, the distribution of its plants, the view of a building from across the street, the uses to which a building, district, or landscape is put. These characteristics may actually all be called “features” in some contexts, but that’s not what the regulations call them, and the regulations certainly do not say that a project has no effect on an historic property unless it physically tears up a physical feature that has been officially defined as contributing to the property’s eligibility. That’s the bill of goods that Mr. Harrison was peddling – that the quarry would have no effect on the landscape despite blasting a mile-long hole in it, because (according to Granite, actually ignoring some of the findings of its own contracted ethnographer) it wouldn’t destroy a specific rock or cliff named in the oral traditions its contractor had consulted.

It would be an adverse effect on the National Mall to build a quarry in the open space between the Washington Monument and the Museum of American History – not because that particular patch of lawn is a “feature” that makes the Mall significant, but because doing so would diminish the integrity of characteristics that contribute to such significance, such as the Mall’s uses by visitors, the views of its monuments, and the feeling the place evokes. Such characteristics can contribute in just the same way to the significance, and hence the Register eligibility, of any other historic property, regardless of whether specific physical features are involved. In the Te Moak case, BLM apparently determined (more or less, but consider the fish and plants) that physical features were the sole contributors to the “PCRI’s” significance, and the Tribe did not seek a clarifying determination from the Keeper of the National Register. This hardly makes it legitimate to apply this “rule” to other historic properties, in other situations, let alone in situations where other laws apply.

This case also illustrates just how esoteric and silly the regulations and their application have become.  In this case (and, I guess, in the Te Moak case) we had a big landscape about which a group of citizens -- in each of these cases, a federally recognized tribe -- was concerned, and the contentious issues were mere technicalities by the use of which project proponents tried -- in the Te Moak case successfully -- to avoid addressing the tribe's concerns.  The regulations are replete with such technicalities, interpretable only by us experts and lawyers; it seems to me that they get in the way of performing the simple function assigned to agencies by Section 106: to take into account the effects of actions on historic properties.