Blessed Decatur

Introduction


David Rotenstein, well known in the blogosphere as “Historian for Hire,” was in town the other day and asked me to look at and comment on the final report of a “Historic Resource Survey” of the City of Decatur, Georgia (a suburb of Atlanta).  David has worked in and around Decatur for the last few years and coincidentally, I was born there (fleeing to the west at age four months). The report was pretty sorry, but, I fear, not atypical of what’s being churned out as ostensibly professional products all over the country. So with David’s permission, I want to share the review letter I sent him on January 31.

Dear David,

You’ve asked me to comment on the “Historic Resource Survey Final Report” for the City of Decatur, Georgia, dated September 1, 2009.

My qualifications for preparing such comments are outlined in the attached resumé; I should stipulate that most of my recent experience, and most of my writings, have to do with historic preservation and the broader field of cultural resource management (CRM) at the federal level, not in the context of local planning. However, I was involved in the development of federal standards and guidelines for local surveys imposed on State Historic Preservation Officers and local governments by the National Park Service, and have reviewed scores if not hundreds of survey reports over the course of my career. I should also stipulate that while I was born in Decatur in 1942, I left town with my family in 1943 and have not recently resided or worked there.

I should also say that over the last twenty years or so, I have come to be alarmed at what historic preservation and CRM have become in this country – particularly in terms of their growing disconnection from the living communities that they must serve if they are to make any sense as aspects of public policy. I’ve also been dismayed at the quality of scholarship (if it can be called that) represented by their typical products. My concerns are outlined in the attached chapter from my 2011 reader, A Companion to Cultural Resource Management (Wiley-Blackwell 2011).

The Decatur “Final Report” does nothing to encourage me; it is as classic an example as I have recently seen of what has made historic preservation in this country a pointless, overly costly, elitist, and socially irresponsible activity.

On page 2, the “Final Report” says that it was prepared following state and federal guidelines, and specifically cites the National Park Service’s “Guidelines for Local Surveys.” I helped develop those guidelines, and one thing we tried to emphasize was that local surveys must engage and involve the local community – for whom they are presumably done and whose interests they ought to serve. Nowhere in the “Final Report” do I see any evidence whatever of an effort to involve the community, or even to contact and consult with its members. It appears that the “Final Report” represents the work of presumed professionals in architectural history who came into Decatur and decided what they thought was important – never mind what the “locals” might think. I hasten to say that this sort of professional conceit is – sadly – increasingly common in historic preservation practice in this country, but that makes it no less irresponsible.

On page 5, we are told that the surveyors carried out historical research. If they did, it is very thinly reflected in the pages that follow. The focus of the work is overwhelmingly on architecture (itself not discussed in much detail); the social and cultural history of Decatur is scarcely touched upon, unless that history has been bland beyond belief. The “historical context” that begins on page 11 provides no context at all. It merely defines time periods and says the city grew as these periods progressed. Note, for instance, that:

(a) Apparently no Indians ever came close to Decatur; the place has no history prior to the “first European settlers.” One wonders, too, if all these settlers were “European;” I seem to recall that a lot of such settlers were accompanied (willingly or otherwise) by settlers of African origin.

(b) We are given no notion of why Decatur ever came to be; the “Final Report” just accepts that it came into existence and developed quietly thereafter. We are told that it “promoted itself as a quiet, prosperous small town” in the mid-1800s, which “offered a peaceful, healthful, and beautiful place to live.” Was there some economic basis for its prosperity? Some social or cultural basis for its perceived beauty? Some environmental reason for its healthfulness?

(c) Apparently no African-Americans have ever lived in Decatur, or if they have, they are invisible in its history. My family’s lore tells of much-respected African-American women who took care of my elder siblings and me; I wonder where they came from.

(d) Somehow Decatur seems to have escaped the Civil War untouched. I had the impression that Sherman’s army had some effect on the place, but I suppose I (and Wikipedia, for what that is worth) must be mistaken. Sherman’s depredations apparently had nothing to do with the fact that “none of these original historic structures (around the Square) remain.”

(e) Similarly, the difficulties surrounding Reconstruction seem to have had no impact on Decatur. What a blessed town it must be!

(f) Decatur’s growth has apparently been a sort of organic thing, perhaps fueled by photosynthesis. Neighborhoods simply “develop” or sometimes “are developed.” What motivated their development, and hence might have influenced their character, was apparently of no interest to the authors of the “Final Report.”

(g) Nothing seems to have happened in Decatur after the period 1940-60. This may reflect the author’s decision not to consider buildings unless they were at least fifty years old – a decision that may be justified in a mindless sort of way by the National Register of Historic Places’ general exclusion of properties achieving significance in the last fifty years. In most parts of the world, however – at least to the best of my knowledge – history did not stop fifty years ago, and in some places recent historical events have had profound impacts on both historic properties and the communities in which they exist. Apparently not in Decatur, however.

The bulk of the “Final Report” comprises “Neighborhood Summaries” made up of maps and very thin descriptions of Decatur’s neighborhoods, through which are woven largely unsubstantiated statements like “a good example,” “has kept its historic character,” and “not proposed as a historic district.” Presumably these are statements of opinion and intent by the authors – who I find nowhere identified by name, and whose qualifications, as far as I can tell, are nowhere presented.

Nor can I even determine from the “Final Report” how neighborhoods or specific properties were defined and selected for evaluation. For instance, my older sister, who actually remembers Decatur in the late 1930s/early 1940s, tells me of a neighborhood in which African-American families were concentrated. I imagine this neighborhood lost its distinctive character – for better or worse – during the social changes of the mid-late 20th century, but I have to wonder where it was, what surviving properties might be associated with it, and what cultural significance they may retain for Decatur’s African-American residents – who I cannot believe do not exist, despite their total invisibility in the “Final Report.”

In summary, the “Final Report” seems to be to be a deeply deficient product, notably in the following ways:

1. No evidence that the community was involved in any way in its production;

2. A remarkably vague, uncritical, bit of happy-talk about Decatur’s development instead of a useful discussion of the town’s history.

3. No representation of history as a basis for judging historical significance; evaluations were apparently done solely on the basis of perceived architectural merit.

4. Narrowly limited and usually unspecified bases for characterization and evaluation. The perceptions upon which evaluations were based were apparently only those of the anonymous outside professionals who performed the survey, and whose qualifications to make such evaluations are not even shared with those who, we are assured on pages 4-5, will benefit from them. The reader is expected, apparently, to accept these perceptions as gospel truth.

Again, I am sorry to say that in my experience these sorts of deficiencies are not uncommon among survey reports done for local governments, states, federal agencies and non-governmental organizations throughout the country, but in my opinion they are no less deficient for being common. Historic preservation has sunk very low when this sort of report passes for a professional planning document.

I hope this admittedly critical review is of some use to you.

EPA: a Highly Principled Agency

Many thanks to John Parker for alerting me to the U.S. Environmental Protection Agency's (EPA's) request for comments on its published draft principles for advancing environmental justice among Indian tribes and other indigenous groups.  Below are my comments, just sent to EPA, along with the URLs by which you, too, can access the principles for review.

I am writing to comment on the Indigenous Peoples Environmental Justice Principles and Sub-Principles you recently published on the Worldwide Web, per the instructions in your "outreach letter" (http://www.epa.gov/tribal/consultation/pdf/policy-on-ej-for-tribes-and-ips-working-draft.pdf and http://epa.gov/environmentaljustice/resources/policy/indigenous/2013-01-08-stakeholder-outreach-letter.pdf).

You asked that we respond to five questions, arrayed below with my responses.

Question 1: Do the introduction and background sections clearly explain the rationale (etc.)?

Answer: More or less, but they convey no evidence of appreciation for the urgent needs that exist for actually addressing the concerns of indigenous people about impacts on their environments, which are being effectively ignored by most if not all agencies of the U.S. government (presidential, secretarial, and other official rhetoric to the contrary notwithstanding).

Question 2: Are the draft principles and sub-principles the appropriate approach….?

Answer: No. The principles and sub-principles are so vague and abstract that they provide no basis upon which anyone can develop expectations about actual EPA actions. They strike me as a smoke-screen, designed to avoid and deflect criticism rather than actually to accomplish anything.

Question 3: What, if any, changes … should be considered?

Answer: Cut the self-congratulatory gobbledigook and give us some assurance that EPA will actually use its authorities to do something. Particularly in its role vis-à-vis federal agency compliance with NEPA, EPA could do a great deal of good for indigenous people and their environments by vigorously promoting EJ principles and the principles of the United Nations Declaration on the Rights of Indigenous Peoples (neither of which need further definition, thank you). You ought to develop the staff and other resources to do this, and get on with it, rather than wasting your time and the taxpayers' money formulating and reformulating abstractions.

Question 4: What recommendations do you have on how to best implement these principles…?

Answer: Stop splitting infinitives, but beyond that, see above.

Question 5: How should progress and success be measured?

Answer: They can’t be, because the principles and sub-principles are too vague and abstract. You could do almost anything short of flooding Indian Country with toxic wastes and still be “successful” under these principles.

Thank you for the opportunity to comment.

Thomas F. King

The Mob Revisited

2013 Introduction

The Explorers Club, of which I'm a member, is considering denying support to underwater archaeological projects that include a commercial ("treasure salvage") component.  Expressing a saddening herd mentality, the Club's committee on the subject assures the Club's members that "archaeologists" as some kind of unified body oppose such work.  In gathering together documents to support a doubtless futile effort to demonstrate that a few of us have the capacity for independent thought on the subject -- in which the mainstream profession and the world's governments firmly avoid participating -- I came upon the following posting from 2007, either from this blog or from ACRA-L, which I thought might be worth revisiting.

The Mob

November 1, 2007

Well, the mob is out in full cry, brandishing its pitchforks and cudgels, howling for the blood of heretics.

Or to be a bit less picturesque, the archaeological societies of the nation are joining together to expunge from the discipline all those who might be tempted to work with "traffickers" in artifacts. The latest convert, to judge from the Society for American Archaeology’s latest Archaeological Record (September 2007, p. 10), is the Register of Professional Archaeologists. I suppose RPA can't really help itself, since it's the creature of such mob leaders as the Archaeological Institute of America and the SAA. And the RPA's leader, Jeff Altschul, told me in a recent email that there is "overwhelming support" in his organization for a change in the RPA code of conduct to prohibit registrants from participating in commercial ventures. The new language goes like this:

An archaeologist shall not be involved in the recovery, buying or selling of archaeological artifacts for sale or other commercial activity, or be employed by or contract with a company whose stated purpose is to recover archaeological artifacts for sale or other commercial purposes.

No doubt RPA will join its constituent organizations in thundering against commercialism, and then pat itself on its corporate head for its ethical superiority. Maybe this is a good thing; it is at least consistent with the Register's primary purpose of making its registrants feel good about themselves. The fact that it will almost undoubtedly accelerate the destruction of archaeological sites is probably beside the point.

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 the puffing of marijuana.

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.

So the RPA will doubtless join its fellow acronymous archaeo-organizations --SAA, AIA, SHA, et al -- in prohibiting its members from dealing with commercial interests, and things will go on as they are. Except every now and then some poor dope who thinks he or she can relate to the real world and still be called an archaeologist will get pilloried. The rest of us, I suppose, will just have to call ourselves something else. Or maybe we can just drop the second “a.”

CRM, EIA, and the NRA

I'm working on a new book -- co-authored with Claudia Nissley -- on consultation in cultural resource management (CRM) and environmental impact assessment (EIA).  The final chapter, as currently configured, comprises tongue-in-cheek guidelines for people who want to avoid meaningful consultation.  By sheer coincidence I was working on a piece of this chapter today, and was inspired to write the following:

Expand Alternatives


On the other hand, it’s sometimes helpful to expand the range of alternatives thrown on the table – not for extensive, expensive consideration, but just for discussion – so those that might actually work get lost in the noise generated by impossibilities.

Outside the cultural resources and environmental arenas, the National Rifle Association in the United States is, as we write this (early 2013), giving us a fine example of alternative expansion. Faced by massive popular revulsion at gun violence in the wake of the massacre at Newtown, Connecticut, the NRA is proposing improved mental health as the solution. It’s hardly debatable that improved mental health would reduce the number of nutcases with guns, but fixing the nation’s mental health is a big, complicated job. By shifting the focus from the relatively easy task of banning assault weapons and high-capacity magazines to the near-impossible job of curing the mentally ill, the NRA is skillfully muddying the water and, in all probability, once again preserving its members’ ostensible right to own whatever kinds of weaponry suit their fancy.

Now if I could just figure out a way to apply this principle to CRM and EIA.....

No More &^%$# TCPs!

Guest post by George A. Cluster

The National Park Service (NPS), thank goodness, is finally re-thinking its “National Register Bulletin 38,” and inviting people to comment on “traditional cultural properties” and their eligibility for the National Register of Historic Places. Well, here’s my comment, NPS: get rid of them! Jettison the whole idea!

The idea of recognizing TCPs is wrong, inconsistent with the basic principles on which the National Register is based. Forcing federal agencies to think about such places, and worse yet to consider PROTECTING them, just confuses government employees and distracts them from their real work – writing incomprehensible guidelines, enforcing obscure standards, patting each other on the back, winning awards, preparing for retirement.

The trouble with TCPs is that they’re important only to PEOPLE. Just plain people, with no special social status or government position whatever. Oh sure, some of them are important to a LOT of people, but in most cases they’re still just ORDINARY people, in ordinary communities. And Bulletin 38 doesn't even demand that a lot of people care about a place, or that the people be parts of any elite.  Indian tribes and Native Hawaiians have especially beaten their drums about TCPs, which just shows you how far outside mainstream American thinking the whole idea is.

Look, it should be obvious that the National Register is not designed to recognize places important to ordinary people. The whole idea of the Register is to recognize places important to the SECRETARY OF THE INTERIOR, based on the judgment of his PROFESSIONAL STAFF – archaeologists, historians, and architectural historians, and of the PROFESSIONALS in the State Historic Preservation Offices (SHPOs). That’s why it’s the SECRETARY who maintains the Register, and sets standards for listing places on it. That’s why you have to hire PROFESSIONALS to prepare the paperwork to nominate places to it. This is important: the Register makes WORK for these professionals, who might otherwise go unemployed, living under (historic) bridges! Keeping elites and professionals comfortable is the PURPOSE of the Register!

Come on, people, this isn’t rocket science. NPS shouldn’t have to concern itself with the “cultural” interests of ordinary people, in ordinary communities – who probably don’t really have any culture anyhow. NPS and the SHPOs and the preservation professionals in the federal agencies and consulting firms ought to get back to their real work – writing great thick historic context studies, discussing how many pony truss bridges belong on the National Register or how deep an archaeological site needs to be to reach eligibility under Criterion D, and carefully crafting Memoranda of Agreement to file and forget.

Let’s start the new year right by getting back to first principles: historic preservation is about the values of the ELITE, the EDUCATED, the CREDENTIALED, and most especially those residing in NPS and the SHPOs. And it’s about making sure that we elite, educated, credentialed professionals – in government and in the consulting firms -- stay employed and make it safely into secure, untroubled retirement when our times come.

This shouldn’t be a hard call for NPS at all. What to do with TCPs? Forget about them!

One More Time: Archaeological Survey Does Not Equal a Reasonable and Good Faith Effort to Identify Historic Properties

On October 16, 2012 I posted the following on ACRA-L, a listserv subscribed to by a lot of Cultural Resource Management (CRM) practitioners:

Based on collective experience, does the following seem like common practice?

1.    Non-governmental project sponsor wants to use a big chunk of federal land.

2.    Responsible agency has not yet initiated Section 106 (of the National Historic Preservation Act) review -- i.e., it has not initiated consultation with SHPO (State Historic Preservation Officer), tribes, others; it may or may not have defined some kind of APE (area of potential effects), but has not consulted to establish a scope of its identification needs.

3.    Nevertheless, it directs the project sponsor to conduct an archaeological survey of something -- presumably an APE as someone has defined it.

It seems to me that this practice puts the cart at least partially before the horse.  At some point in the future, presumably the agency will initiate 106 review, but it seems inevitable that it will rely on the prior-conducted archaeological survey to define the universe of things to be consulted about.  If anyone suggests that the survey was ill-scoped or ill-conducted, that the APE was ill-defined, that there are properties or types of property that were missed or not sought, or that there are cultural phenomena other than putative historic properties to be considered, I'd expect that they'll have an uphill battle getting these concerns recognized.  At the very least, there will be a conflict situation, which might have been avoided had the work been planned as the Section 106 regulations require.

Does anyone else have a thought about this practice, and about how widespread it is?

I got only about half a dozen responses – most CRM practitioners are sick of my nattering, I suppose, and don’t read my stuff.  Those who did respond were about evenly divided between east and west, and almost evenly divided in their responses along the same geographic lines.  Those in the east said that what I described doesn’t happen or happens only rarely.  Those in the west said it happens all the time.

This was pretty predictable, since most federal land is in the west, so the condition I’d set out as #1 – applicant wants to use big chunk of federal land – is pretty foreign to conditions in the east.

But I think it also reflects the confusion that land managing agencies in the west seem to experience between “cultural resources” and “archaeological sites,” and between “archaeological survey” and making a reasonable and good faith effort to identify historic properties.

The Section 106 regulations (36 CFR 800) prescribe that the first thing a federal agency must do if its project requires review, besides figuring out who to consult in the course of such review, is to determine what the scope of its “reasonable and good faith effort” to identify affected historic places will be.  It’s to do this in consultation with State and Tribal Historic Preservation Officers, tribes, and other interested parties.  It is not to rush out and have an archaeological survey done (or an architectural survey, an engineering survey, a historical survey, or a survey of toenail fungus). 

Why not? For the same reason you don’t go out shopping for your family’s holiday gifts without first making some effort to determine what they might like to get and what you can afford.  You don’t want to wind up being a Stupid Santa. 

Consultative scoping under Section 106 (and NEPA, except NEPA doesn’t really require it) is done to determine what sorts of things different groups are concerned about, and what the nature of the area is – its history, its environment, its architecture, its culture.  Based on this information you can figure out what sorts of expertise you need, and what sorts of methods to employ, so that when you get farther along in the process you don’t have to say “oops,” and backtrack to look for things you didn’t initially consider.  Or – as is more commonly the case – not say “oops,” but just try to cover up your mistakes and ignore the people who are railing at you for missing the places and things that they think are significant, or the effects that they think are unacceptable.

But particularly in the west, and particularly among land management agencies, it’s just assumed that what you need to do to find “cultural resources” subject to effect by a project is to hire some archaeologists and have them walk the ground.  Exactly what ground they walk is another whole question, but it’s become unquestioned gospel among the land management agencies that the first and usually only thing you need to do to identify “cultural resources” is to send in the archaeologists.

The agencies usually also recognize, more or less, that they have to do “tribal consultation,” whatever they think that is.  Usually, though, they take this to mean sending a more or less incomprehensible letter to each tribe in the area, asking them if they have any “cultural resources” about which they want to volunteer information.  Maybe the agency will propose an “ethnographic study,” but they usually look on that as a form of impact mitigation, not as part of their identification work.  Agencies sometimes recognize that they ought to be on the lookout for historic buildings and structures; if the archaeologists say they can’t evaluate such things, then maybe they’ll bring in an architectural historian.  What they almost never, ever do is what the regulations say they’re required to do: sit down up-front with those interested in their project’s likely effects and find out what sorts of studies, if any, they think need to be done.  Instead, ninety-nine times out of a hundred, they simply have an archaeological survey done and distribute the resulting jargon-laden report for review – first excising most of the relevant data from it for fear that the untrustworthy public will go out and rip off all the discovered “sites.”

All this, on the whole, is fine with the “cultural resource” consulting firms and environmental impact assessment outfits that ostensibly provide expert advice to the agencies and to those seeking to use federal lands.  It’s a very cozy arrangement; the agencies prescribe an archaeological survey and the consulting firms go do it – all according to standard procedures so nobody needs to strain their brains too much.  The companies that want to use federal land pay for it, the whole operation is kept out of the public eye, and everybody’s happy.  The boat gets rocked only when some scurrilous outsider – an Indian tribe, a local organization, an environmental group with a lawyer – makes a fuss, but if that happens, well, then, the consulting firm just gets more paying work from its client, so it’s still happy.  The land management agency may be disgruntled, but it’s most likely just mad at whoever’s rocking the boat.  The company that’s paying the tab doesn’t like the costs and delays, but all it knows is that some NIMBYs are making trouble with which its hired experts need to be paid to deal.  It’s just a cost of doing business.  If the companies knew that the agencies to which they’re applying and the consultants advising them were ignoring a simple, sensible scoping requirement that if attended to could keep them from having such problems, or at least let them anticipate them, they’d probably be more upset.  But they probably couldn’t do much about the matter, and most times they don’t know

In theory, the State and Tribal Historic Preservation Officers (SHPOs/THPOs) are supposed to ride herd on the agencies and consultants, to insist that they follow the regulations.  But a lot of SHPOs, at least, don’t seem to know what the regulations say, or they have their own exotic notions about the regulations’ content.  Scoping as an explicit regulatory requirement has been in the 106 regulations only since 2000; a lot of SHPOs don’t seem to have caught up with the lightning pace of regulatory change.  And of course, SHPOs are congenitally underfunded, understaffed, underqualified, and required (and/or prefer) to spend their time doing things other than project review – like compiling paper for the National Park Service (NPS) to ponder, and nominating things to the National Register.  They ride herd astride spavined, hobbled ponies, wielding popguns loaded with nit-picks.  THPOs have many of the same problems, and a lot less money with which to address them.  And both SHPOs and THPOs are beholden to NPS for what federal money they do have, and NPS – to judge from the records it makes SHPOs keep – hasn’t read the Section 106 regulations since approximately 1986.

Some SHPO staff members do get frustrated with their roles; here’s a quote from one who wrote me just a couple of days ago – her email text altered slightly to protect her identity:

My pet peeve here is "archaeo-business."  It’s a million dollar industry and it has gotten to a point where five pieces of pottery found in a bulldozed site can be justification for getting an archaeologist to conduct tests and reconnaissance for the developer at a very hefty cost. And yet when the project they're working on is doing major damage to an important historic structure in plain view from where they’re monitoring excavations, they look the other way and claim that it is not in their scope of work to be concerned with structures.  It just disappoints me, demoralizes me, and erodes my belief that historic places are priceless.

Why doesn’t such an aggrieved employee do something about it?  Usually because they can’t.  Their supervisors don’t want to rock boats.  And they often don’t know what to do about it, because they haven’t read the regulations either.  Or because they know that even if they get their supervisors to blow the whistle, they’re unlikely to get any help from what jokingly passes for federal historic preservation leadership at the ACHP and NPS.

We’ve had the current version of the Section 106 regulations for a dozen years now.  The regulations are far from perfect, but they’re pretty clear about scoping.  At 36 CFR § 800.4(a) they say:

Determine scope of identification efforts. In consultation with the SHPO/THPO, the agency official shall:

(1)  Determine and document the area of potential effects, as defined in § 800.16(d);

(2)  Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified;

(3)  Seek information, as appropriate, from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking's potential effects on historic properties; and

(4)  Gather information from any Indian tribe or Native Hawaiian organization identified pursuant to § 800.3(f) to assist in identifying properties, including those located off tribal lands, which may be of religious and cultural significance to them and may be eligible for the National Register, recognizing that an Indian tribe or Native Hawaiian organization may be reluctant to divulge specific information regarding the location, nature, and activities associated with such sites.

I added emphasis to that “shall” to emphasize that scoping is a legal requirement, not just something the agency oughta do.  And you’ll note, I hope, that the term “archaeological survey” appears nowhere in that regulatory prescription.

Buy Mushgigamongsebe: Benefit a Tribe

I got my royalty statement the other day from Amazon Kindle ($14.50, YAY!) and saw that once again all the sales were of Thirteen Bones, not Mushgigamongsebe (http://www.amazon.com/The-Mushgigamongsebe-District-Traditional-ebook/dp/B008AK7AJQ).  Not meaning to discourage sales of my gripping, exciting novel (perfect for holiday giving), but anyone interested in traditional cultural properties (TCPs) or what the National Park Service (eyes fixed firmly on its lint-filled navel) calls "ethnographic landscapes" ought to get Mushgigamongsebe, all royalties from which I pass on to the Mole Lake Sokaogon Band of Great Lakes Chippewa, whose landscape Mushgagamongsebe is, and who have rescued it from the depradations of a multinational mining firm.  The Kindle book is the report that Anna Willow, Larry Nesper and I prepared for the Mole Lake Band when they were fighting the mine via Section 106 review -- one step toward its eventual preservation.

NEW EVIDENCE OF JUST HOW STUPID A STATE HISTORIC PRESERVATION OFFICER CAN BE

I’m reliably advised – with authoritative supporting documentation provided – that a State Historic Preservation Officer (SHPO) in a state that will remain nameless uses an “SHPO Clearance Form” to expedite “compliance” (sic) with Section 106 of the National Historic Preservation Act (NHPA) by federal agencies and, apparently, applicants for federal assistance and permits. 

The form is two pages long; the “applicant” fills in blanks identifying the project and saying what county it’s in, then offers his or her own determinations as to the eligibility of affected properties for the National Register of Historic Places and as to the nature of the project’s effects on them (“No effect,” “ No adverse effect” or “Adverse effect”).  He or she then sends the form in to the SHPO, who signs either to concur or not concur in the applicant’s determinations.  And hey presto!  You’ve finished Section 106!

Very efficient, SHPO; great work.  Except, of course, that you’ve systematically directed the applicant into non-compliance with Section 106 and its regulations (36 CFR Part 800).

How?  Let me count the ways:

1.       Nowhere in NHPA or in 36 CFR Part 800 is there any provision for SHPO “clearance.”  The Advisory Council on Historic Preservation (ACHP) has made this clear not only in the regulations but in various guideline documents; I’ve tried to make it clear in every relevant textbook I’ve written since 1998; the ACHP and others (Claudia Nissley, myself) have tried to make it clear in our training.  

2.       This is not merely a technical quibble.  Section 106 review is fundamentally about multi-party consultation.  Reducing it to an exchange of “clearance” documents between an “applicant” and the SHPO cuts everybody but the “applicant” and the SHPO out of the loop.  That’s contrary to the core principles upon which Section 106 review is based.

3.       It also encourages federal agencies and others to break the law by ignoring:

a.       36 CFR § 800.3(e), which directs agencies, when they initiate Section 106 review, to plan how to involve the public (“clearance” effectively cuts the public out).

b.      36 CFR § 800.3(f), which directs agencies initiating review to “identify other consulting parties” – that is, parties other than the SHPO, including Indian tribes or Native Hawaiian groups, local governments, and anyone else who’s “entitled” to consult – “entitlement” being based on interest in the project or its effects on historic properties (36 CFR § 800.2(c)(5)).  “Clearance” cuts out all these consulting parties.

4.       The “clearance” process in this case goes farther by encouraging “applicants” to ignore:

a.       36 CFR § 800.4(a), which requires agencies to consult with SHPOs (and Tribal Historic Preservation Officers or THPOs, also ignored in this form), in establishing the scope of their historic property identification work, including:

                                                               i.      Establishing what the Area(s) of Potential Effect (APE) are;

                                                             ii.      Reviewing background data, and

                                                            iii.      Gathering and considering information held by other parties, notably Indian tribes and Native Hawaiian groups regarding places of religious and cultural significance to them;

b.      36 CFR § 800.4(b), which requires agencies to consult with SHPOs, THPOs, and others in conducting a reasonable and good faith effort to identify potentially affected historic properties, based on the scope of work developed per § 800.4(a); the “clearance” form doesn’t even ask the “applicant” what he or she has done to identify historic properties;

c.       36 CFR § 800.4(c), which requires agencies to consult with SHPOs, THPOs, and others in determining which potentially affected properties are eligible for the National Register; the “clearance” form reduces this to a check-box interaction between the “applicant” and the SHPO;

d.      36 CFR § 800.4(d), which requires agencies to consult with the various parties in determining whether eligible properties will be affected (again reduced by the “clearance” form to the applicant’s box-check and the SHPO’s concurrence); and

e.      36 CFR § 800.5, which requires consultation in determining whether such effects will be adverse (another check-box on the form)

OK, by now your eyes are glazing over, so let’s get down to the nitty-gritty.  By using this “clearance” form, the SHPO is screwing up in two large ways.

1.       He or she is setting things up so the taxpayers who pay his or her salary can have no influence on federal agency decision making under Section 106.  This seems like a pretty strange thing for an ostensible public servant to do – and just to throw another regulatory cite at you, it’s inconsistent with 36 CFR § 800.2(c)(1), which says that the SHPO is supposed to “reflect the interests of the state and its citizens in the preservation of their cultural heritage.”  Though maybe this SHPO can somehow magically reflect such interests while keeping those interested in the dark.

2.       By encouraging agencies not to do what the regulations quite explicitly require them to do, the SHPO is setting agencies and other “applicants” up for litigation and other challenges to their project planning, which can have serious fiscal implications for all concerned.

And I suppose it’s worth noting that he or she is probably facilitating the destruction of a lot of historic properties, but maybe I’m just picking nits.

Bottom line: the regulations have never provided for SHPO clearance, and the revisions of 1999-2001 (with which it looks like this SHPO is unfamiliar) considerably clarified the fact that SHPO clearance is not the name of the 106 game.  Ignoring the regulations, and setting up one’s own happy little process that keeps the public in the dark while the SHPO and agencies pass paper back and forth to one another, is both reprehensible and, I’d say, stupid.  Reprehensible because it encourages illegality, ignoring project impacts, and keeping those who pay one’s salary in the dark about things that are important to them; stupid because one will eventually get caught, and the results of doing so are likely to be very uncomfortable.