Blowing Wind on Capitol Hill

I know I’m in a minority, but my guess is that when he makes his decision this week or next on the Cape Wind project, the Secretary of the Interior will say no. If this happens, it will almost certainly generate a great flurry of snorting, trumpeting and braying on Capitol Hill, with proposals to:

• Exempt wind (and probably solar and nuclear) projects from the requirements of NHPA (and maybe NEPA);

• Rein in the renegade Advisory Council on Historic Preservation by somehow constraining the range of things it can say in comments;

• Resurrect the tired old notion of having Section 106 apply only to formally registered properties; and even

• Undo Section 106 altogether.

The historic preservation community will predictably close ranks and defend the status quo.

Ho-hum. Business as usual. But is there any alternative? Any more creative way to react to the rhetorical gusts?

How about this? The real problem with Cape Wind, from the standpoint of Section 106 review, was that the Minerals Management Service (MMS), and hence the Cape Wind proponents, got lulled into thinking there was no big preservation issue involved; hence they ignored the real issues until it was too late to consult effectively and (perhaps) reach an agreeable compromise. This lulling resulted from two pieces of bad analysis:

1. The premise that the visual effects of the project on shore-side historic properties, being “only” visual, were “only” indirect impacts, and hence not that big a deal; and

2. The premise that the Sound, not being a “site” as ordinarily understood under National Register guidance, couldn’t be eligible for the National Register, and hence (disregarding all laws besides NHPA), didn’t have to be further considered as a cultural resource subject to impact.

Why did MMS get and pay attention to such dippy analyses? Well, there are probably lots of reasons having to do with the political situation at the time, the intelligence of the individuals involved, and so on, but I’d argue that a lot of it came about because we’ve all become so narrow-minded and compartmentalized in our thinking about environmental impacts. The CRM firm is hired to analyze impacts on “historic properties” or “cultural resources,” understood to mean archaeological sites, old buildings, and maybe landscapes. The environmental impact firm is hired to consider biological and social and maybe visual effects. One maybe provides input to the other’s report, or maybe the environmental guys just read the CRM report and put their own spin on it. Even if they are not subject to political or economic pressure to go light on the project’s impacts (and they probably are), they have neither the organizational structure nor much incentive to look at things in broad, interdisciplinary terms, to ferret out public concerns, and to explore alternatives as anything but window-dressing to make their reports look objective. So they don’t warn of impending train wrecks, and of course most of the time they get away with it, but every now and then, as in the Cape Wind case, the train really does go off the track.

The problem, in short, is that our system (sic) for environmental impact analysis has become unworkable and ineffective, especially where the cultural aspects of the environment are involved. That system needs a thorough overhaul. And it needs it not only to accommodate accelerated clean energy development, or homeland security, or whatever other development schemes float a particular congressperson’s boat, but to make the system work more efficiently, more effectively, less stupidly, and more in tune with the general public interest – including the interests of cultural resource management, broadly construed.

So I’d say to the historic preservation community (if it were listening; I don’t kid myself into thinking it is), don’t circle the wagons when the rampaging hordes come storming down the Hill. Welcome them, encourage them to sit down and reason together. Let’s have a study, let’s have a commission, let’s have hearings to examine not just how to get historic preservation out of the way of this year’s development fad, but how to make the whole environmental impact assessment process more sensible and responsible. I’m not so naïve as to think that this would necessarily have useful results – if just the usual suspects are involved (Interior, the ACHP, the National Trust, the Council on Environmental Quality), it probably won’t. But there’s just a chance that it would produce something useful, and it would beat spending another year or two at the barricades defending a status quo that probably, truth be told, isn’t worth the effort.

A Tribal Resolution

I've been seeing more and more cases in which agencies are unnecessarily complicating their compliance with Section 106 of the National Historic Preservation Act, and disrespecting Indian tribes in the process, by getting all wrapped up in largely irrelevant nitpickery about the application of standards and procedures in whose development the tribes have had no part. And with all due respect for the tribes, I wonder why they're being so good-natured about this disrespect. If I were a tribe, I know I'd be sick to death of having federal and state officials decide whether and how places significant to me were (and were not) eligible for the National Register, and what kinds of data I'd be required to cough up in order to get the agencies to consider impacts on them. So I thought to myself, "OK, Self, if you were a tribe, what would you do?" And myself responded: "Assuming I'm a tribal government, I'd pass a resolution to send to all federal agencies and State Historic Preservation Officers, saying in essence: 'look, you arrogant dummies; WE are the only ones who can decide what's significant to us, and if you're going to pretend to respect our cultural values you'd bloody well better respect that.'"

So I tried to draft such a resolution, in proper resolution language, presented below. I have no pride of authorship, intend to retain no copyright, and invite any tribe that's interested to do with it as such tribe may desire.

TFK

RESOLUTION OF THE ________(TRIBE)________ TRIBAL COUNCIL

WHEREAS the ___(Name of Tribe)___ (Tribe) is a sovereign American Indian tribe entitled to government-to-government relations with the government of the United States of America; and

WHEREAS the government of the United States of America, including all agencies thereof, has a trust responsibility to manage tribal lands and tribal cultural and natural resources, including tangible and intangible cultural resources valued by the Tribe wherever such resources may occur, in a manner responsive to the interests of the Tribe and its members; and

WHEREAS the cultural values and spiritual beliefs of the Tribe are intimately related to its ancestral lands, to natural places, and to the plants, animals, and spiritual qualities of such lands and places; and

WHEREAS the government of the United States of America has created a system for addressing the impacts of its actions on land-related cultural values that is built around the eligibility of culturally important lands, water bodies, and other places for the National Register of Historic Places; and

WHEREAS the regulations governing the National Register of Historic Places (36 CFR 60) were developed by the U.S. National Park Service without consultation with Indian tribes, and without evident consideration for tribal concerns; and

WHEREAS the Congress of the United States of America in 1992 added Sections 101(d)(6)(a) and (b) to the National Historic Preservation Act, reminding agencies of the United States government that places of religious and cultural importance to tribes could be eligible for the National Register of Historic Places and directing agencies to consult with tribes about the impacts of their actions and decisions on such places; and

WHEREAS under current regulations eligibility for the National Register is decided substantially by agencies of the U.S. government in consultation with State Historic Preservation Officers; and

WHEREAS it is fundamentally inconsistent with the principles of tribal sovereignty and the trust responsibility borne by agencies of the United States government toward Indian tribes for federal and state officials to decide on the eligibility of tribal places, and hence on the responsibility of agencies to consider the effects of their actions on such places;

NOW, THEREFORE, the _____(name of tribe)_____:

I. ASSERTS that all lands, water bodies, and other places it so identifies as historically, culturally, or spiritually important to the Tribe must, as a matter of the United States government’s trust responsibility toward the Tribe, be assumed by all federal agencies to be eligible for the National Register of Historic Places; and

II. INSISTS that all agencies of the United States government:

(a) Accept and respect the above assertion with reference to any land, water body, or other place identified by the Tribe as historically, culturally, or spiritually important;

(b) Respect tribal interests in and values ascribed by the Tribe and tribal members to such places;

(c) Consult in good faith with the Tribe to identify such places as may be affected by agency actions, approvals, and other decisions directly, indirectly, or as parts of a pattern of cumulative effects;

(d) Consult in good faith with the Tribe concerning potential impacts on such places as may arise from federal agency actions, approvals, or other decisions, seeking agreement with the Tribe about measures to avoid, reduce, compensate for, or otherwise mitigate any adverse effects on tribal cultural and spiritual values and interests; and

(e) Refrain from imposing regulatory or other standards and burdens on the identification and management of places important to the Tribe, or on consultation with the Tribe, to whose imposition the Tribe has not explicitly acceded, except where such standards or burdens are specifically enacted by the United States Congress.

Don't Do What We Did: A Small Critique of Cultural Resource Management in the United States

Introduction

A couple of years ago, at the request of a colleague in Brasil, I drafted a quick paper for him to translate into Portugese for publication in his country. I sent it off and never heard of it again, in any language. A recent facebook posting by Trish Mitchell mentioning that her country (which?) is thirty years behind the U.S. in its development of CRM laws and programs, made me think that maybe it would be interesting to some people (Trish, anyhow) for me to post the paper, so here it is.

Cultural Resource Management
and Historic Properties
Learning from the Errors of the United States
Thomas F. King
April 15, 2008

Cultural Resource Management

Back in the 1970s, archaeologists in the United States faced a challenge. New laws had been enacted promoting the protection of “natural resources” on the one hand and “historic properties” on the other. Government agencies were being required to conduct environmental impact assessments of their actions, seeking ways to protect the environment. How could archaeologists be sure that the places they were concerned about – archaeological sites – were protected by these legal requirements?

Among other things they needed a term to describe such sites that seemed a little grander than the esoteric term “archaeological site.” It should be a term that related somehow to “natural resources,” but of course archaeological sites are not “natural,” they are cultural in origin. “Historic property” was the term that architectural historians used for the cultural places – old buildings and structures – that they were interested in, but that term didn’t describe archaeological sites very well – particularly prehistoric archaeological sites.

So archaeologists invented the term “cultural resources,” and called what they did – surveying to find archaeological sites and excavating them to “mitigate” the impacts of construction projects on them – “cultural resource management.”

These terms have gained broad acceptance in the United States, and are being used increasingly in other nations. This, I suggest, is most unfortunate.

Consider for a moment all the “resources” that a culture may think valuable. Consider, for example, an indigenous group living in a forest. Among the resources that it uses to sustain its culture, surely, are:

• The indigenous language;
• Place names;
• Stories and traditions;
• Songs;
• Rituals and religious practices;
• Religious beliefs;
• Subsistence practices;
• Animals and plants;
• The landscape in which the group lives, or that it uses;
• Water sources, and sources of other natural resources; and
• The group’s social organization and family structure.

Now imagine that some government-regulated project is proposed in the vicinity – say, a logging project – and either government or the project sponsor performs an environmental impact assessment (EIA). If it follows the model employed in the United States, production of this EIA will be supervised by environmental scientists of some kind, perhaps biologists. It will include an element dealing with “cultural resources,” but no one will define this term. Archaeologists will most likely be in charge of finding and assessing impacts on such resources.

Will the archaeologists consider the indigenous group’s social organization? Its religious practices? The plants and animals and water sources it values? Its subsistence practices? No, the archaeologists will consider impacts on archaeological sites. But in the U.S., they will say that they have performed a “cultural resource” analysis; that they have done “cultural resource management.” The biologist in charge of the EIA is likely to take the archaeologists at their word; after all, they are the experts. So the report on the EIA, in its “cultural resource” section, will talk about archaeological sites, and perhaps old buildings and structures. Most of the indigenous group’s cultural environment will be ignored, and impacts on its religious practices, social organization, plants and animals, and so on will simply not be analyzed.

It may be that some of these important cultural aspects of the environment will be addressed by others working on the EIA – perhaps those performing social impact assessment (SIA). But in the United State at least this often does not happen, because “social” impact assessment becomes equated with “socioeconomic impact assessment,” and focuses only on easily quantifiable economic factors. Religious practices, beliefs, social structures, the cultural significance of plants and animals, even many aspects of subsistence are ignored. So if the logging project goes forward, perhaps the archaeological sites get protected somehow, or are excavated before they are destroyed. But most of the “cultural resources” that matter most to the indigenous group are not considered, and are lost.

So here is one lesson to learn from the mistakes the United States has made: say what you mean! If archaeological sites are the subject, call them archaeological sites; do not use some vague euphemism like “cultural resource.” On the other hand, if you say you will assess impacts on “cultural resources,” consider all such resources that are relevant to the area, the project, and the people and cultures involved.

Historic Properties

Another mistake the United States has made is to use its “National Register of Historic Places” as the centerpiece of its historic preservation system. The National Register is a list maintained by the U.S. National Park Service. The list includes “districts, sites, buildings, structures and objects” significant in U.S. history, prehistory, archaeology, architecture, engineering, and culture. Under U.S. law, those doing environmental impact assessment must consider impacts on places included in the Register and on those not yet included but eligible for the Register. If there are questions about whether a given place is eligible for the Register, they are resolved by the Register’s “Keeper,” a National Park Service official.

The major problem with this system is its anti-democratic character. Again consider our hypothetical indigenous group. Imagine that there is a place where the group collects plants used in a very important healing ritual. If the group wants this place to be considered in the EIA on the logging project, and the project is in the United States, the group is going to have to convince those doing the EIA that its plant-gathering area is eligible for the National Register. It will have to frame its argument for eligibility in terms that are meaningful to “professionals” – mostly architectural historians and archaeologists – in the National Park Service and the offices of the State Historic Preservation Officers. These people are likely to ask all kinds of strange questions – what are the boundaries of the place, how often do you use it, how long has it been used? And if they decide, for whatever reason, that the place is not eligible, then it receives little or no consideration in the EIA. Is this reasonable in a democracy? That government should consider its impacts only on things that government decides are important? Should not the people have some say in the matter, when the importance of a thing is theoretically based on their cultural values?

So another lesson to learn, I believe, is not to place too much emphasis on lists like the National Register. Lists can be important tools in bookkeeping; they are less useful in planning and environmental impact assessment, and if they assume the status of a national institution as the National Register has in the U.S., they can suppress the voice of the people in the protection of their cultural patrimony.

A Better Model

A better approach to dealing with cultural resources in EIA, I believe, is found in the Akwé:Kon Guidelines issued in 2004 by the Secretariat of the Convention on Biological Diversity. These remarkable guidelines recommend the conduct of integrated “cultural, environmental, and social impact assessments” when planning development. These assessments are to be carried out in close consultation with local communities, and are to address impacts on whatever is important to such communities. If environmental impact assessments were done along the lines recommended by Akwé:Kon (a Mohawk Indian word meaning “everything in creation”) – assuming they were done responsibly and well – then we would actually be doing “cultural resource management” and we could largely dispense with esoteric national lists like the U.S. National Register of Historic Places.

In suggesting a democratic, consultative approach to “cultural resource management” that looks at all aspects of the cultural environment rather than just at archaeological sites and historic buildings or structures, I do not mean that such sites, buildings, and structures should be ignored. Of course, they should be considered in EIA in a way that is sensitive to their importance in archaeological research and architectural patrimony. But what we should not do is focus all our attention on archaeological and architectural matters to the exclusion of what matters most to local people whose cultural environments are affected by modern development. The United States has unfortunately allowed itself to fall into this elitist, antidemocratic trap; others, I suggest, would do well to try to avoid it.

Bibliography

Secretariat of the Convention on Biological Diversity
2004 Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities. CBD Guidelines Series, Montreal, http://www.cbd.int/doc/publications/akwe-brochure-en.pdf

Some Thoughts on the ACHP's Cape Wind Comments

On April 2, the Advisory Council on Historic Preservation (ACHP) fulfilled its duty under Section 106 of the National Historic Preservation Act by rendering comments on the proposed Cape Wind Project in Nantucket Sound. Without plowing through the background of this controversial case, or getting into the ACHP’s authority to issue such comments, or into what the Secretary of the Interior (who has authority over the project via the Minerals Management Service [MMS]), I’d like to offer a few comments on the ACHP’s comment.

The first page of the seven-page comment succinctly and – as far as I can tell – accurately outlines the background of the case. The second page briefly discusses the historic properties involved – not only the Sound per se but the historic places that surround it on land, and rather elegantly sums up what’s involved as follows:

As evidenced by the Keeper’s determination, the written record, and the public testimony, Nantucket Sound has been for thousands of years and remains still an area of prime national, regional, and local importance because of its substantial economic, recreational, social, cultural, and traditional cultural benefits and attributes.

The comment then turns to the potential effects of the Cape Wind Project, which it summarizes as direct and indirect, unavoidable, and not subject to satisfactory mitigation. In general I find little to quibble with in this section of the comment, but there are a couple of peculiarities.

First, on page 3 the ACHP notes, with reference to a National Park Service study of the project’s impacts on two affected National Historic Landmarks (the Nantucket Historic District and the Kennedy Compound), that:

In its comments on the effects of the Project on the two NHLs, the National Park Service (NPS) concluded that the adverse effect of the undertaking would be indirect, because the adverse effects are visual only, limited in overall scope, and do not diminish the core significance of either NHL.

The ACHP does not analyze the NPS conclusion, but it seems wrongheaded to me. In what way is an effect indirect because it is “visual only” or of “limited scope?” Indirect impacts are defined in regulation as impacts that take place at a greater remove in time and space than direct effects do – a fuzzy definition, to be sure, but one that has nothing to do with whether an effect is visual as opposed to something else, or to its “scope.” One of the ACHP’s very first Section 106 comments, back in 1968 on the Easton Nuclear Plant, proposed for construction in the viewshed of Saratoga Battlefield, was entirely about visual impacts and made no bones about their being quite direct. The project was abandoned. As to the “core values” of the NHLs – well, this is the problem with things like NHLs. Whose “core values” is the analyst to be concerned about? The values of the Secretary of the Interior, who designates NHLs? The values of the professionals at NPS who prepare the oh-so-scholarly analyses upon which designations are based? Or perhaps the values of the people who look out at the world from the properties, or at the properties from elsewhere? I doubt if it’s the people, and if it’s only the Secretary and his or her employees, should impacts on such “core values,” or an alleged lack thereof, really be at the center of anyone’s analysis? The ACHP drops a hint on page 4, suggesting that it is concerned about this question:

The Project’s effects on this broad range of properties should not be viewed in isolation or labeled only as indirect or direct. Rather, because of their concentration and interrelation, they must also be considered together. In their totality, these effects are significant, adverse, and cannot be adequately mitigated.

The comment gives a fair amount of space to the project’s alleged potential impacts on submerged archaeological resources. I can’t help feeling that this is a bit of a red herring. Yes, there may be archaeological sites within the parts of the Sound that the project would physically disturb. Yes, these may be quite significant sites – whether they’re very early ancestral Wampanoag sites or traces of Viking visitors. But the evidence that such sites exist is pretty thin, and a case could be made that the public interest lies in revealing and studying them (if they exist) rather than leaving them alone. I can’t see that the potential for impact on such speculative resources deserves quite the attention it has gotten, in the ACHP comments and elsewhere. Focusing on this potential seems to me to get the discussion off track. The big impacts of Cape Wind – and the ones that are hard or impossible to mitigate – are visual, and in the case of the Wampanoag, spiritual.

The comment next – with remarkable straightforwardness – eviscerates the federal agencies responsible for overseeing the project. MMS has not carried out its stewardship responsibilities under the National Historic Preservation Act and Executive Order 13287. The Corps of Engineers initiated Section 106 review too late, and initially focused its attention only on already-designated historic properties, ignoring the tribes’ concerns about impacts on undesignated traditional cultural places (notably the Sound). MMS was slow to improve on the Corps’ shoddy performance, and its consultation with tribes was “tentative, inconsistent, and late.” The ACHP credits Secretary Salazar with getting the relevant issues “properly resolved,” but the ACHP is, I think, just being polite. The Secretary’s intervention has brought the Section 106 process to a conclusion that’s more or less consistent with the letter of the regulations, but nothing can correct the mistakes made early on by the Corps and MMS, and it’s a mystery to me how any final resolution based on fundamentally flawed early planning and rotten consultation can be called “proper.”

On page 5, the ACHP begins to offer its recommendations to the Secretary, commenting:

The development of renewable energy projects is not inherently incompatible with protection of historic resources, so long as full consideration is given to historic properties early in the identification of potential locations. The ACHP believes that wind energy production on the OCS in the vicinity of the current project area could proceed in a manner that would be consistent with protecting Nantucket Sound and the surrounding historic properties. It appears that the selection of nearby alternatives might result in far fewer adverse effects to historic properties, and holds the possibility that those effects could be acceptably minimized or mitigated.

This is certainly the heart of the matter, and it carries an important message for the wind energy industry – and the solar, nuclear, geothermal, and other ostensibly green energy industries. Just because you’re wearing white hats these days, don’t assume your projects have no potential for deleterious effects, or that you can or should ride roughshod over other public interests. Like any other industry, you need to look before you leap, consider alternatives, and consult with affected people, before you start investing megabucks in your particular pet project. If you do it right – if you really consider alternatives, really consult, really be considerate – you can probably get your project done. If you don’t, it’s a crapshoot at best.

The ACHP then gets specific. Interior needs to improve its tribal consultation procedures – something the Department is spending a good deal of time on at the moment, though I see little evidence that anyone is getting beyond mouthing the usual platitudes. The Interior-sponsored tribal consultations I have been involved in recently have not been encouraging. The ACHP also advises MMS to improve the way it integrates historic preservation into site selection and alternative analysis, and it offers a number of fairly concrete suggestions for joint actions by Interior and the ACHP itself (along with the Council on Environmental Quality and others) to improve the way impacts on historic properties are addressed in energy development planning. Two of these suggestions merit special attention, I think:

The ACHP and the NPS should develop guidance to assist federal agencies in determining and addressing the effects of energy projects, especially wind and solar projects, on historic properties that comprise large areas with indefinite boundaries. Particular attention should be given to properties of religious and cultural importance to tribes and cultural landscapes. This effort should draw on the experience of other nations in addressing this subject.

Having tried to supply such guidance for many years as a mere unwashed non-governmental consultant and book-writer, and having gotten used to being ignored, I welcome maybe getting some help from an official body -- and it's nice to see the ACHP recognize that other nations might have something to teach us. I fear, though, that it will be very, very hard for the vested interests in NPS at least to open their minds sufficiently to do much good, particularly since considering such “large areas with indefinite boundaries” challenges notions that are deeply embedded in the brains of many National Register employees.

The ACHP and the NPS should assist agencies and applicants by sharing information on innovative and cost-effective strategies and techniques to identify all types of historic properties potentially affected by energy projects, not just standing structures and archaeological sites.

Indeed – but this, too, is going to require some fundamental paradigm shifts, not only on the part of agencies like Interior but notably among the staffs of NPS, the ACHP, and particularly the State Historic Preservation Officers (SHPOs).

Unfortunately, the ACHP comment ends on a truly stupid note:

The Department should revive the proposal of the 2006 Preserve America Summit that was endorsed by the ACHP to develop a comprehensive and accessible national inventory of historic properties to assist in the identification of historic properties during the federal project planning process. Priority should be given to those areas under federal jurisdiction or control that have high potential for both traditional and alternative energy development.

Uhh…. guys, that was what people thought they were creating in 1966 when NHPA directed the Secretary to expand and maintain a National Register. It was a dumb idea then, and it obviously hasn’t worked – that’s why the Corps’ concentration on “designated” properties early in the review of Cape Wind was a mistake. There’s a fair amount of literature (not all of it created by me) bearing on why such an “inventory” is a silly idea, and particularly why some of the most sensitive kinds of properties – like Nantucket Sound – don’t and can’t be captured by such “inventory” efforts. Holding on to this ridiculous recommendation undercuts the intellectual integrity of an otherwise excellent comment.

PAndering

Under Section 106 of the National Historic Preservation Act and its regulations (specifically 36 CFR 800.14), a “Programmatic Agreement” or PA may be negotiated by a federal agency with a State or Tribal Historic Preservation Officer, group of such officers, or the National Conference of State Historic Preservation Officers (hereafter “SHPO” for short), the Advisory Council on Historic Preservation (ACHP) and (rarely) other parties to establish an “alternative” means of complying with the law – alternative, that is, to the standard process set forth in the regulations (36 CFR 800.3-6). PAs can be very useful tools for adjusting the regulatory process to allow for special needs and situations. They are inherently problematical, however, because they effectively replace the standard process, creating “special deals” for the agencies that execute them. This can make life difficult particularly for citizens who want to use Section 106 to protect something. Such a citizen naturally looks at the regulations for direction, but the relevant agency is doing something quite different; it’s following its PA – as it interprets it. The citizen is left floundering, having to understand not “just” the regulations, but whatever PA or PAs may apply to the project that’s of concern.

It’s also been my observation that when people start drafting a PA, one or both of two things tend to happen. They often fall into regurgitating the standard process, usually in badly masticated form, taking many pages of convoluted prose to say they’re going to do more or less the same thing they’d do if they didn’t have a PA. And they get wordy, blathering on for page after page, creating documents that are impenetrable to the ordinarily educated English-language reader. Oh yes, a third thing – they usually minimize any provision for public participation in review.

I’ve recently had occasion to review several PAs – one being negotiated in Guam and the Northern Marianas on redeployment of military forces, one in the same area covering transportation projects, a “prototype” PA developed by the ACHP for Department of Energy weatherization projects, and another by the Federal Highway Administration covering all highway projects in a western state. Each was about 20 to 30 pages long, single-spaced, 10 or 11 point font. I found that every one of them had the above problems, and moreover that they actually didn’t set out to do very much.

For the most part, all the PAs were about:

1. Delegating certain responsibilities from the federal agency to a recipient of agency assistance;
2. Excluding certain classes of action from standard forms of review;
3. How the agency and the SHPO would interact during project review, and
4. How archaeological sites would be identified.

Now, items 1 and 2 probably require a PA, but it doesn't have to be very complicated PA. For item 1 you just need to say: “Federal Agency X may delegate (or hereby delegates) responsibilities A, B, and C to recipient Z,” subject perhaps to specified conditions. For item 2 you list the action classes, rationalize their exclusion from standard review, and specify any review they WILL get.

Items 3 and 4 can in most cases be taken care of without doing a PA, as long as the agreeing parties don’t try to change anything in the regulations. Regarding item 3: if an agency and SHPO want to agree that they’ll exchange red, green, and purple formletters with 22-day turns-around, they can simply exchange memos to that effect and go to it – as long as they don’t thereby close out opportunities for other parties to have their say, or otherwise alter the overall requirements of the regulations. As for item 4, it’s up to the agency, in consultation with the SHPO and others, to decide what constitutes a “reasonable and good faith effort” to identify archaeological sites and all other kinds of historic properties; there’s no need to negotiate a PA.

So what’s wrong with doing a PA to accomplish these modest purposes, if you have nothing else to do and you’re a glutton for punishment? What’s wrong is that a PA is a nuclear weapon; when you touch one off, it has a lot of fallout. It effectively replaces the standard process – it makes it go away (unless you carefully specify that it doesn’t, and how it doesn’t, and I’ve never seen a PA do that). It forces anyone who wants to participate in Section 106 review to figure out whether the PA applies to his or her concerns, and if so how. This is particularly a problem for members of the public, who can’t be expected to master the eccentricities of even the standard process, let alone an esoteric alternative. And all these alternative processes ARE esoteric; in some places they more or less spit the regulations back at the reader, but sometimes with tweaks of various kinds; in other cases they add new twists to the standard process. And who WILL know how the alternative works? Well, maybe nobody, but if anyone does it will be the federal agency’s lawyers and “cultural resources” professionals, which makes them the experts, gives them the power to tell the interested public to screw off – assuming a member of the public sufficiently figures out the system to even ask a question.

So I contacted the ACHP, and asked if this concerned them at all, and if maybe they didn’t think it would be a good idea to suggest to agencies and SHPOs that they sort of cool it with the PAs – develop them only when they’re really needed, and keep them simple. I was assured that my views would be taken into consideration. No argument, no discourse, and to the extent any rationale was offered for accepting the PAs I was criticizing, it was simply that these are the kinds of agreements the ACHP routinely receives from agencies and SHPOs.

Oh.

We accept them – and indeed regurgitate them as prototypes – because we receive them, and God forbid we should consider offering any contrary advice (what, advice? From the Advisory Council?). If the agencies and SHPOs want to do it this way, baby, that’s the way it’s gotta be done, and that’s how we’re going to demonstrate our leadership in historic preservation.

The ACHP will soon have a new chairman (Thank goodness it doesn’t take Senate confirmation). One might hope that the new chair would promote some responsibility, but it’s unlikely. The ACHP’s leadership has been disenthralled with Section 106 review since its original executive director retired over twenty years ago, and it’s unlikely that anyone appointed as chairman will even recognize that the system has problems, let alone do anything to fix them. There are many things to do that give more excuse for puffing out one’s chest, like giving out “Preserve America” grants. So the ACHP, I suspect, will remain aloof, while the SHPOs and agencies earnestly go on negotiating massive agreements that focus greater and greater attention on less and less, and deprive members of the public of the opportunity to get attention paid to places they hold dear. Eventually the whole edifice will collapse, but alas, I don’t expect to live to see it.

California Shoots for the Moon

Faced with budget constraints that are forcing the imposition of furlough days and weeks on Office of Historic Preservation staff, and facing a surge of Recovery Act projects requiring Section 106 review, California’s Historic Resources Commission has taken bold action. On January 29 it added Tranquility Base to the state’s Register of Historic Resources.

That’s right, Tranquility Base, on the Moon, where on July 20 1969 Neil Armstrong uttered the famous words: “Houston, Tranquility Base here. The Eagle has landed.”

According to the Associated Press, quoting California State Historic Preservation Officer Wayne Donaldson, the Commission’s action is part of a five-state effort to promote designation of the site as a National Historic Landmark (NHL) under the Historic Sites Act of 1935. The other states involved, according to the AP, are Florida, Alabama, New Mexico and Texas. NHL designation is a National Park Service (NPS) responsibility.

Even if one doesn’t consider it a little hubristic for a state to extend its system of historic place designation to another heavenly body, even if one doesn’t think (as I, perhaps a minority of one, do) that historic place designation systems are inherently outmoded and counterproductive, even if one doesn’t think that Mr. Donaldson and his people might really be well advised to tend to the state’s business instead of launching outer space adventures, the move to designate Tranquility Base an NHL is ill-considered. I very much hope that other states – even California’s alleged co-conspirators – will think long and hard before supporting it.

Let’s stipulate that Tranquility Base is a highly significant place in the history of humankind’s exploration of space. Let’s stipulate that, as Mr. Donaldson is quoted as saying in justification of his commission’s action, it may eventually be threatened by thoughtless space tourists. Let’s stipulate that the public, that posterity, that life forms near and far would be well served by somehow protecting the site from such desecration. None of this makes NHL designation sensible or responsible.

Designation is the knee-jerk preservationist response to the intersection of historic significance and potential for change. The place is threatened? Put it on a list! Influenced by the long history of European landmark scheduling and local historic district ordinances, preservationists assume that if you put the place on a list it will be protected. Never mind that there’s no lunar historic district commission to impose design standards on touristic ventures in the Sea of Tranquility; it must be that making Tranquility Base an NHL will protect it from those rampaging space tourists, right?

Wrong, of course. Under Section 110(f) of the National Historic Preservation Act (NHPA), NHL designation would require U.S. government agencies to consider the effects of their actions on the site. But no one seems to expect the Corps of Engineers to initiate watershed improvements around the Sea of Tranquility; it’s unregulated space tourism that Mr. Donaldson and his colleagues fear. NHL designation won’t control that.

So why push designation? There actually is a reason, of sorts. In the U.S. system for proposing places for inclusion in the World Heritage List – a list of places ostensibly having international significance as natural or cultural resources, maintained by a sub-body of UNESCO – NHL designation is a necessary first step. The NPS authors of the rules for World Heritage List nominations in the U.S. sensibly assumed that if we weren’t willing to recognize a place as being significant enough to be an NHL, we ought not propose it for the international list. Placement on the World Heritage List would obligate nations party to the World Heritage Convention to give Tranquility Base some degree of consideration in their actions, presumably including whatever regulatory scheme a nation, a group of nations, or the international community might impose on space tourism. So World Heritage List designation makes a degree of sense, and if the U.S. wants to propose such a thing, via its existing designation system, NHL designation is a necessary step.

But that’s a big “if.” World Heritage listing isn’t necessarily the only or most straightforward way to achieve protection for something like Tranquility Base – which is, after all, hardly more a part of the world than it is a part of the U.S. or the state of California. And NHL designation generates some risks that at last report the Department of State – very sensibly, I think – did not favor incurring.

The 1967 Outer Space Treaty – technically the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,” to which the U.S. is a party, specifies at Article II that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” In other words, neither the U.S. nor any other country can stake a claim to the moon or any part thereof. While we “cultural resource experts” in the U.S. know that designating something an NHL or putting it on the National Register does not constitute an “appropriation” by the U.S. government, this understanding is not very widely shared. If it were, we wouldn’t see private property owners getting as exercised as they sometimes do over proposals to list their houses, farms, fields and factories on the Register. We certainly cannot expect the other nations of the world, a few of which tend to look at U.S. intentions with a jaundiced eye, to recognize designation as a benign, non-political act. Accordingly, the last time I inquired into the matter the Department of State was dead set against giving Tranquility Base NHL status.

So what are California and its co-conspirators trying to do? Pressure the Secretary of the Interior into thumbing his nose at the Secretary of State? Create an international incident? Or are they just having fun? I don’t know, but I suspect they haven’t really thought the matter through very thoroughly.

Suppose, though, that they somehow succeed in their enterprise (sic), and get Tranquility Base registered as an NHL – perhaps even placed on the World Heritage List. What then do we do about the landing sites of Apollo 12, Apollo 14, and the others? What about the landers and rovers on Mars? What about the Voyager spacecraft when they circumnavigate the cosmos and come home? There is in fact an active and growing group of academic enthusiasts promoting the preservation of such sites and objects, and well there should be; they are undeniably historic. But are they all going to become NHLs, or be listed in the equivalent schedules of other nations, and/or be entered in the World Heritage List? Are we going to go through bureaucratic processes over each one, and replay the tired old arguments about how many of this and that kind of thing “belong” on the list? Will we invest money in preparing interplanetary historic context studies?

If the supporters of protection for off-planet historic places are serious, I suggest that the time and treasure they’re spending pushing for NHL designation would be better invested in an effort – perhaps through UNESCO, ICOMOS, and/or other international cultural bodies – to get the spacefaring nations to agree to a simple principle: that the physical evidence of the history of space exploration should be respected in the ongoing exploration, settlement, and use of outer space. Have a UNESCO convention on the subject, establish processes by which impacts on such evidence will be considered in planning future space ventures, including tourism – whether this evidence is found in a specific place like Tranquility Base or scattered around like the vehicles lost on entry into the Martian atmosphere, and whether they’re things we know about now or unexpected discoveries like big black slabs that hum. Cut to the chase, address the real issue, and do it in the proper international venue. Don’t waste time and tax dollars trying to warp (sic) state and federal historic property designation processes (silly enough when applied to earthly places) to serve purposes for which they were never intended.

The National Register of Historic Places: Being Eligible for it; Being Determined Eligible for it; Being Nominated to it

Thanks to the determination by the Keeper of the National Register of Historic Places that Nantucket Sound is eligible for the Register, I’ve spent some time today on the phone with reporters, and in email correspondence with colleagues, who are confused about some very basic points. At the risk of re-plowing what ought to be well-turned earth, let me try to clarify the differences among three terms that keep getting mixed up.

Eligibility for inclusion in the National Register. This means that a place or thing meets the criteria of eligibility published at 36 CFR 60.4. It is a factual category into which a place falls, like being a species of animal or a wet place in the woods. Places are eligible if they meet the criteria, regardless of whether anybody has ever recognized that they do. Nantucket Sound is eligible for the Register; it has been eligible for the Register for as long as the Wampanoag Tribes have ascribed cultural significance to it, because this ascription of significance means it's associated with significant patterns of history, and thus eligible under National Register Criterion “A.” It did not become eligible when it was determined to be so, any more than a species is hale and hearty until the Fish and Wildlife Service determines it to be endangered, or any more than a swamp is dry until the Corps of Engineers delineates it as a wetland.

Determined eligible for inclusion in the National Register. This means, obviously, that someone has given a place some attention and said “yup, it meets the National Register criteria.” Some like to reserve the term for instances in which the Keeper of the Register has made a formal determination, as has just happened with Nantucket Sound; others use the term more loosely to embrace the less formal determinations made by federal agencies and State or Tribal Historic Preservation Officers in the course of Section 106 reviews. Whichever way it’s used, it means that someone has actually determined, decided, concluded, that the National Register criteria are met by a place or a bunch of places, usually based on some body of data and analysis, though there is no hard and fast rule for how much of either is needed.

Nomination to the National Register. This is what happens when someone fills out all the paperwork that the National Register requires before it will consider actually listing something on the Register, and submits it for review, usually through a State or Tribal Historic Preservation Officer to the National Park Service. There is no requirement in law that anybody nominate anything to the National Register. Nantucket Sound has not been nominated, and I for one hope it won’t be; it would be a waste of time and effort.

Section 106 of the National Historic Preservation Act requires that federal agencies take into account the effects of their proposed actions on places included in (i.e. listed in) or eligible for the National Register. Not “determined eligible” for the Register, and not “nominated to” the Register, but simply eligible for the Register. In other words, an agency is responsible for considering impacts not only on places that someone has nominated, or that someone has determined eligible, but also on places that simply meet the criteria. The regulatory requirement to make a “reasonable and good faith effort” to identify eligible properties that may be subject to effect is the logical result of the statutory requirement to consider effects on eligible properties. Agencies – not tribes, states, or citizens – are responsible for making this effort, so that they, the agencies, can do what Congress told them to do: take effects into account. In the Nantucket Sound case, the Minerals Management Service failed in this responsibility by failing to listen to what the Wampanoag Tribes had to say about the Sound’s significance and appreciate that this significance probably made the place eligible for the Register. Nantucket Sound did not become eligible when the Keeper determined it so; it was eligible all along, and the Minerals Management Service should have had sense enough to realize that. It didn't, and that's why the issue has to be confronted now.

A Listless Approach to Resource Management

Introduction

Early this year I was asked to prepare some thoughts to share with a group that (to judge from the rather vague description I was given) was considering the future of various institutions within and around the U.S. National Park Service. The following is what I wrote. Not surprisingly, a glance at it was enough to cause my invitation to be withdrawn. So I'll post it here for whatever interest it may have to others.

Lists in Resource Management: First Step or Knee-Jerk?

Whenever a nation, national subdivision (state, province, city, etc.), or international organization sets out to manage resources – be they endangered species, historic places, or even such intangibilities as songs, stories, and ways of life – its almost invariable first step is to establish or promote establishment of a list. The U.S. National Historic Preservation Act calls on the National Park Service to expand and maintain a “National Register of Historic Places.” The World Heritage Convention creates the “World Heritage List.” The U.S. Endangered Species Act requires creation and maintenance of the “Endangered Species List.” The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage even directs each of its States Parties to draw up, in a manner geared to its own situation, “one or more inventories of the intangible cultural heritage present in its territory

Such lists tend to become the centerpieces of the management systems of which they form a part – or at least to be perceived as such. The U.S. National Register of Historic Places, for example, touts itself on its web site as “the official list of the Nation's historic places worthy of preservation .”

The lust to list is understandable in a simple minded kind of way – how can one manage that which one does not know about, and what more obvious way is there to know about something than to make a list of its examples or expressions? But the fact that listing is understandable does not mean that it is always the wisest first step – or even a necessary step at all – in managing resources. Nor does it mean that it lacks negative consequences that might be avoided if one adopted a listless – or if we must be sober-sided, a list-free or list-minimizing – approach.

Some Down-Sides to Listing

As one simplistic example of the dangers inherent in listing, consider the U.S. National Register’s smug self-description as “the official list of the Nation's historic places worthy of preservation.” “Worthy,” we should surely be allowed to ask, “to whom?” To the American people as a whole? To the government? To the National Park Service? The answer is not clear, but in practice the answer is: “Worthy to the Park Service professionals who run the National Register,” since it is they who decide what gets listed and what does not. Without meaning to impugn the integrity or intelligence of these hard-working government employees, should we not ask whether this means of measuring worth is quite appropriate? It is not uncommon for, say, a local community or a group of citizens to feel strongly that a place associated with their history or cultural practices is worthy of preservation, and for the National Register to decide that it is not eligible – in other words, by the Register’s self-definition, not worthy. Is this entirely democratic? Who elected these guys?

The National Register’s exercise in self-congratulation would be merely amusing if it didn’t have practical implications, but it does. Under Section 106 of the National Historic Preservation Act, federal government agencies have to consider the impacts of their proposed actions on places included in or eligible for the National Register. Implicitly, if a place is not in or eligible for the Register, they don’t have to consider impacts on it. So if a place of great cultural, historical, significance to, say, the people of the Barrio de Don Quijote de la Mancha is in danger of destruction by a federal project, and the National Register decides that this place does not meet the Register’s criteria, the federal agency need not even think about preserving it, as far as the National Historic Preservation Act is concerned. There are other laws that in theory require broader consideration of historic and cultural places – for instance, the National Environmental Policy Act, which deals with the whole “human environment” – but as most agencies interpret their legal responsibilities, if a historic or cultural place is not on or eligible for the National Register, it is not seriously considered under any law.

A related problem with lists is that we tend to become fixated with deciding what does and does not qualify for listing. In my forty-plus years of experience trying to resolve conflicts between development and preservation under the National Historic Preservation Act, I estimate that at least half of all controversies I’ve encountered have not been over whether or how to preserve something, but over whether things were or were not eligible for the National Register. Often these arguments are not as much substantive as they are procedural and technical. Has a particular criterion or standard been met? Has the boundary of the property been correctly defined? Does the place have “integrity” in the eyes of an architectural historian or archaeologist? We spend vast amounts of time and money evaluating things against National Register standards, delay projects for months and years, often for no purpose whatever but to satisfy National Park Service technical standards or the nitpickery of those who interpret them. And in the end, what we “preserve” – if anything – may be those aspects of a place that mean nothing to those who value it. We may, for instance, force the physical preservation of a building as part of a development project, but lose its traditional functions, the role it played in the cultural life of its community. This may be as it must be; perhaps there is no realistic way to maintain the building in its traditional role, but if this is the case, is it worth preserving it at all? And should we congratulate ourselves on having preserved something when what we have preserved, often at great cost, is only a stark and lifeless shell?

My experience with other lists is limited, but I know that similar problems are confronted in the management of state and local level historic property registers in the United States. The criteria employed in maintaining the Endangered Species List are held to be too rigid on the one hand, too open to political manipulation on the other. The various UNESCO groups that are convened from time to time to address World Heritage List issues seem to spend most of their time wringing hands about why more “mixed” natural and cultural places don’t get listed, and why “Third World” countries don’t add more of their places to the List. Perhaps these issues have something to do with actually preserving or managing the world’s heritage, but they appear -- to me at least -- to reflect preoccupation with listing itself, as though it were a self-evident good in its own right.

The United States has not yet ratified UNESCO’s Convention for the Safeguarding of the Intangible Cultural Heritage, so we have no first-hand experience with its direction to compile inventories of intangibilities. My expectation is that if we ever attempt such a compilation, the complexities with which we trouble ourselves in historic property evaluation will pale by comparison. Are we really going to try to decide where this fiddle-playing tradition leaves off and another begins? Decide which traditional religious practice is legitimate enough to be listed and which is not? And what will we do when all the practitioners of a particular cultural practice – say, line dancing – inconveniently decide to take up something else? Or die?

I raise these last concerns, I hasten to add, as one who believes that “intangible heritage” is very much worthy of consideration in planning. In fact, it may be the only heritage worthy of consideration, since even the ambience of historic places and the research value of archaeological sites comprise “intangible” interactions between physical reality (whatever that is) and our brains. My question is not whether such aspects of heritage should be given fair consideration for preservation through wise, balanced planning. My question is whether giving lists a central place in the processes of preservation and planning is necessary or wise.

Being Listless

I am not suggesting that one could ban lists altogether and have a better, or even a possible, resource management system. There are many uses for lists, and for some aspects of resource management they’re undoubtedly necessary. If you’re distributing benefits – grants, for instance, or tax credits, you need to know who’s qualified to receive them, and that’s going to create a list. If you’re imposing draconian controls – thou shall not paint thy house green; thou shall not dig up a tree – you probably need a list of the things to which these controls apply. But most resource management is not about distributing benefits or imposing absolute controls; it’s about balancing interests in resources with interests in other things, like development. There are ways to do this kind of management without lists – or at least without permanent, high-powered lists that purport to be official rosters of what’s worth managing.

Listless management involves the use of processes designed to identify and resolve conflicts. We recognize a need – say, the need to generate electricity. We look for ways to meet that need, and identify a few – wind turbines on the hill, a hydropower dam on the river, a nuclear plant on the lakeshore. We determine who’s likely to be interested in, affected by, concerned about each of these alternatives, and we begin to talk with them about it. We do studies to figure out what impacts each alternative may have. We continue to consult with the groups that have interests and concerns, and through these processes of study, consultation, weighing and balancing alternatives, we eventually reach a conclusion about what to do. We may carry out these processes well or poorly, of course, but my point is that it is by such processes, if well done, that we can reach thoughtful, well-informed, consensual decisions about managing resources. We may make lists along the way – of resources affected by this, that, or the other alternative, of people concerned about each, and so on, but we don’t need a high-powered central list of what’s been officially deemed to be worth considering. If we have such a list, we’re almost inevitably going to undervalue some things in the eyes of people whose perceptions don’t happen to mesh with the “official” view of significance, and we’re likely to waste a lot of time and treasure figuring out what ought to go on the list and what ought not.

An excellent example of a list-free approach to management is found in the Akwé:Kon Guidelines issued in 2004 by the Secretariat of the Convention on Biological Diversity. The Akwé:Kon Guidelines – the term is from the Mohawk language, and means “everything in creation” – recommend the conduct of integrated “cultural, environmental, and social impact assessments” as part of land use and development planning. These assessments are to be carried out in close consultation with local communities, and are to address impacts on whatever is important to such communities. There is nothing in Akwé:Kon to suggest that resources or resource types important to other people – biologists, for instance, or archaeologists or national park services – should not also be considered, but such resources are not given “official” status, and there is no complicated bureaucratic system for deciding what does and doesn’t get attended to. If people are concerned about it, it’s an issue to be addressed. The focus of analysis and discussion is on figuring out what people are concerned about and how to resolve conflicts. If the processes of issue identification and resolution are pursued intelligently and with integrity, the results ought to be wise, balanced decisions – to which things like national or international registers of resources are irrelevant.

A cynic may say that such processes are never actually pursued with intelligence and integrity, but I don’t believe we can legitimately say that, because we’ve never really focused on them. We’ve spent our intellectual energy on the development and completion of lists, and figuring out what does and doesn’t fit on them. If we threw away the lists, and paid attention to the processes by which better decisions can be made, even a cynic might be gratified.

Bibliography

Secretariat of the Convention on Biological Diversity
2004 Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities. CBD Guidelines Series, Montreal, http://www.cbd.int/doc/publications/akwe-brochure-en.pdf

Writing the Secretary of the Interior about Nantucket Sound

I'm trying to send the following to Secretary of the Interior Ken Salazar, but find that the Dept. of the Interior's website discourages such contacts. I suppose I'll have to do it in hard copy and let it get fried by the correspondence zappers that Homeland Security has foisted on all the agencies. In the meantime, I thought I'd share it with my faithful readers.

The Honorable Ken Salazar
Secretary of the Interior
Washington DC 20240

Dear Mr. Secretary:

In the current brouhaha over the Cape Wind project in Massachusetts, and the eligibility of Nantucket Sound for the National Register of Historic Places, you are confronted with what may appear – and what some of your advisors may portray – as an existential conflict among three important functions of your office. The administration of which you are a part, obviously and with justification, assigns high priority to developing clean, domestic sources of energy; Cape Wind Is arguably one means by which you may pursue this priority. But you are charged by the National Historic Preservation Act (NHPA) with being an advocate for the preservation of historic places, specifically including places of cultural and spiritual significance to Indian tribes. And quite apart from this responsibility, you are the point man in the federal government’s exercise of its trust responsibility toward tribes, charged with doing what you can to protect and advance their interests. In asserting that Nantucket Sound is a place of spiritual, cultural, and historical importance to them, the Wampanoag tribes have called on you to exercise your NHPA and trust responsibilities, perhaps at the expense of the Cape Wind project.

You are doubtless receiving a lot of advice about how to balance – or dodge, or finesse – these three bodies of responsibility. You are hearing – we’ve all read the words of the governor of Massachusetts to this effect – that the tribes’ assertion is “ridiculous” because we need wind energy. This, of course, is a non sequitur; our need for clean energy, windy or otherwise, no more makes the tribes’ spiritual values ridiculous than our need for peace in the Middle East vitiates the spiritual beliefs of Jews and Muslims. You are also hearing that the tribes are the bought and paid for creatures of rich yachties and homeowners. That’s theoretically possible, but even if it were true that the tribes are in league with non-Indian Cape Wind opponents, that wouldn’t automatically make their spiritual assertions illegitimate. As a former Senator you may have some familiarity with striking alliances to achieve or protect separate but overlapping or dovetailing interests.

You are also almost certainly hearing – quite likely, sadly, from your staff that oversees the National Register of Historic Places itself – that Nantucket Sound cannot be eligible for the Register because it is too big, or too wet, or too loosely bounded. But none of these variables are reflected in the National Register’s criteria of eligibility. It would be remarkable if they were; can government dictate that a place cannot be of historic and cultural value if it is bigger than – what? A breadbox? Does government know some secret relationship between moisture content and cultural significance? As for boundedness – well, the National Register’s staff is in love with boundaries as a matter of bureaucratic tidiness; it is nice to be able to plot things firmly on a map. But history and culture, and land management for that matter, are annoyingly disrespectful of boundaries. In the case of Nantucket Sound (as in many others) boundaries are irrelevant. Wherever the boundaries of Nantucket Sound might be set, it’s a safe bet that Horseshoe Shoals would be within them, and so would most of the effects of the Cape Wind project.

The Register staff may also be fretting about the need for more data, and asking for more studies. That’s standard operating procedure for the Register when confronted with a politically difficult call, but such studies seldom serve any purpose other than to generate costs and delays. There’s certainly no excuse for them in the Nantucket Sound case. The Wampanoag tribes have said that the Sound is culturally significant to its people, is it the place of the government’s history experts to study the matter for a few months or years and then perhaps say “no, it’s not?” Would one expect the tribes, in this event, to say “Oh, OK, Great White Father; poor dumb injuns make-um mistake?”

Finally, you are probably hearing that if you accept the eligibility of Nantucket Sound for the National Register, you are dooming Cape Wind. Perhaps Cape Wind deserves to be doomed; I don’t know. But I do know that nothing in law prevents you from approving a project that does violence to a National Register eligible property – provided your consultation with tribes and other interested parties in accordance with the law reveals no alternative you find worth pursuing, and you conclude that proceeding is in the public interest. On the other hand, your fiduciary responsibility to the tribes, and the requirements of statutes like the Religious Freedom Restoration Act (which says you can’t substantially burden anybody’s practice of religion without a compelling government interest in doing so) may preclude you from approving Cape Wind regardless of the Sound’s eligibility for the National Register.

What recognizing the Sound as eligible for the Register does do is open up an avenue through which you may be able to negotiate a mutually acceptable compromise; the process for doing so is laid out in the regulations for carrying out Section 106 of NHPA. NHPA was a product of Lyndon Johnson’s administration, and the Section 106 review process reflects the line from Isaiah 1:18 that President Johnson was so fond of quoting: “Come, let us reason together.” Under Section 106, when a project will impact a National Register eligible property, everyone involved is supposed to sit down and see if they can reason out a mutually agreeable solution – something that achieves the purposes of the project with as little damage as possible to the interests of those who care about the place. If such a solution can be found, it’s pursued; if it can’t be, then you, as the decision maker, get the recommendations of the Advisory Council on Historic Preservation and then make the final call. It may be a hard call, but that’s why we pay you the big bucks.

As someone who’s worked in and around the National Register and Section 106 for almost half a century, and as a supporter of clean domestic energy, and as a supporter of the administration you serve, I hope you will recognize the obvious fact that Nantucket Sound is eligible for the National Register, and get on with trying to negotiate a solution that respects the tribes’ spiritual and cultural values as well as the interests of local residents and the need for clean energy. It would have been a lot easier to find such a solution several years ago, when the tribes first advised the Minerals Management Service of their concerns, but the Service – doubtless based on what someone thought was impeccable logic – ignored those concerns and left them to fester. This complicates your task but doesn’t change it. The NHPA Section 106 review process – though sadly distorted and corrupted over the last decade – remains one of the federal government’s very few formal procedures for resolving environmental disputes outside the courts. You ought to seize the opportunity to use it to seek a solution to the Cape Wind controversy. But to do this, you need to accept the manifest truth of the Sound’s cultural significance to the Wampanoag tribes.

Thomas F. King


Thomas F. King, PhD
Writer, Consultant, Teacher in Cultural Resource Management
PO Box 14515
Silver Spring, MD 20911
240-475-0595
tfking106@aol.com
Blog at http://crmplus.blogspot.com/
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Buying Thirteen Bones

Anyone interested in purchasing my new novel, Thirteen Bones, can do so directly from the publisher by going to www.tomfking.com. Alternatively, it's available from Amazon, Barnes & Noble, and other booksellers. It's the fictionalized (but fact-based) story of the 1940 discovery of what were probably Amelia Earhart's remains on Nikumaroro in the Phoenix Islands, Republic of Kiribati.

Consultation Requirements Under Section 106: Can an Archaeological Opinion Make Them Go Away?

The other day (Sept. 12, 2009), I posted the following note on ACRA-L:

I'm confronted with a problem that's doubtless not uncommonly faced by CRM consultants, but it's not one I've encountered lately, and I'm wondering what others would do in my situation. Here are the facts:

1. At the mouth of a river, two archaeological sites were recorded in 1989, about 100 meters apart. Both are "Archaic" -- say, 2,000 years old. Both are recorded as distributions of flaked-stone tools and debitage, mostly in the plow zone. The area has been disturbed by various construction activities over the years. Both sites were regarded by their recorders, working for a major, reputable CRM firm, as not eligible for the National Register. The SHPO agreed.

2. Now a new construction project is planned that will be directly adjacent to and partly overlap one of the sites.

I see the two "sites" not as discrete entities, but as red flags, warning me that someone occupied this obviously attractive area (lots of game, fish, shellfish) 2000 years ago. I am skeptical of the notion that these people "lived" only within the areas where archaeologists found stuff in 1989.

I also observe that under current law and regulation (as opposed to what was in effect in 1989) there are today rather explicit requirements for agencies to consult with Indian tribes about effects on properties that may be culturally significant to them.

The SHPO, however, takes the position that since the archaeologists in 1989 didn't find anything that looked to them to be eligible for the National Register, and the SHPO continues to stand by the finding of non-eligibility, there is no need to consult with tribes. I should say that there are no federally recognized tribes in the state, though there are some in adjacent states with interests in the area, and there are several non-recognized tribes.

My client is the project proponent, and is used to depending on the SHPO's opinion. It will be less expensive and troublesome for my client to adopt the SHPO's position than to reconsider the matter and consult with tribes.

It seems to me, however, that following the SHPO's advice will put my client on thin ice legally (to say nothing of the SHPO's logic, which strikes me as faulty). I also fear an eleventh-hour confrontation with tribes, and/or a late discovery, that will be more expensive and time consuming than dealing with the matter now would be. If I recommend dealing with the matter now, however, I will doubtless be seen by my client as merely attempting to make more pricey work for myself.

Any recommendations? Let me assure you that this is NOT a trick question designed to collect ridiculous answers for use in my next book.

I got a number of recommendations, many of them helpful. A number of respondents commented that the situation I confronted was not an uncommon one. Several pointed out that in the 1980s, there was much less awareness than there is today of the potential for deeply buried archaeological sites in places like floodplains along rivers. Most archaeologists said that they would not accept the SHPO’s position on professional grounds, though several CRM practitioners said that if the client was determined to follow the SHPO’s advice, all one could do is warn of it’s possible consequences.

All of these comments were, I think, quite to the point and helpful. But it rather surprised me that no one pointed out the strangeness of the SHPO’s opinion that since the archaeologists back in 1989 hadn’t thought the sites were eligible, there was no need to consult with tribes about the matter in 2009.

Following is what I ended up telling my client (whose identify, naturally, I have not revealed here):

(With regard to) the archaeological site that will be affected by the project, the SHPO took the position that since it was found not eligible for the National Register in 1989, it need not be considered further, and Indian tribes need not be consulted about it. I believe this position is ill-advised, to say the least. In the first place, it ignores the fact that since 1989:

A. Congress amended NHPA in 1992 to require explicitly that tribes be consulted about historic properties of cultural or religious concern to them, and to remind federal agencies and SHPOs that the cultural and religious concerns of tribes may make a property eligible for the National Register;

B. Congress enacted the Native American Graves Protection and Repatriation Act (NAGPRA), establishing a requirement to consult with tribes about cultural items in the ground that is wholly independent of NHPA;

C. Congress also enacted the Religious Freedom Restoration Act (RFRA), which has recently been used by a tribe in Oklahoma to close down Army construction at Fort Sill that intruded into the viewshed of a sacred site (cf. http://turtletalk.wordpress.com/2008/08/20/comanche-nation-v-us-tro-on-federal-construction-at-fort-sill/) ;

D. President Clinton issued two executive orders dealing with tribal consultation: 13175 generally directing agencies to consult with tribes about matters of mutual concern, and 13007 directing agencies to give special attention to tribal “sacred sites” on federal land;

E. The ACHP has revised its Section 106 regulations and issued supplementary guidance emphasizing tribal consultation;

F. There has been extensive litigation not only surrounding the above specific statutory, executive, and regulatory authorities, but concerning the general responsibility of the federal government to consult with tribes on a government-to-government basis and exercise a fiduciary responsibility toward tribes. These responsibilities are embedded in treaties and in the U.S. constitution.

The SHPO would have the agency ignore all the above because an archaeologist in 1989 reached the conclusion that the site in question had lost integrity for purposes of research. Even if I thought that conclusion was correct (and as an archaeologist I do not), I would find the SHPO’s position antediluvian.

I also think the SHPO’s position raises questions about environmental justice. Executive Order 12898 directs federal agencies to avoid disproportionate adverse impacts on the environments of low income groups and minority populations, and to consult with such groups in appropriate ways to make sure that they have the opportunity to influence agency decisions. Tribes – both federally recognized and non-recognized – are by definition minority groups and very often have low incomes. Destroying a site created by their ancestors and not everyone else’s is arguably disproportionate. There is nothing in any law, anywhere, that allows a contract archaeologist or an SHPO to speak for a tribe in matters of environmental justice.

I believe that the agency has a clear responsibility to seek out interested tribes, and to consult with them about the National Register eligibility and general cultural significance (if any) of the site, as well as the likelihood that the kinds of items protected by NAGPRA exist there. Practically speaking, failure to initiate and pursue such consultation could expose the agency (but not, it should be noted, the SHPO) to litigation and resulting project delays. In a worst-case scenario, it could kill the project altogether; this happened not long ago to the Federal Highway Administration in Washington State, wasting tens of millions of dollars (cf. http://www.wsdot.wa.gov/Accountability/hcbgravingdock/default.htm). While such a drastic outcome is not likely in this case, project delays are certainly possible. While it is tempting to adopt the SHPO’s recommendation as a quick way of proceeding with minimal complications, in the long run it could have serious impacts – which, it is again worth noting, would fall on the agency, not the SHPO.

I posted this discussion on ACRA-L, too, and the response has mostly been deafening digital silence. I thought, though, that one respondent summed things up nicely by saying:

I naively continue to be surprised by how reluctant many who purport to value cultural and historic preservation (not just expect to make a living at it) consider it unnecessary and/or scary to consult with interested parties about those resources.

It can be scary, no question about it, and it also can be irritating, frustrating, time consuming, and generally a pain in the backside. This is particularly the case because those interested parties – whether they’re tribes or others – probably don’t speak our specialized language; they may not relate very well to the National Register Criteria or the Criteria of Adverse Effect. They may not split hairs the way we do, and they may split different hairs. But the fact remains – here I go on my soap box again – that Congress enacted NHPA and other such laws not for the convenience and enjoyment of CRM practitioners and government officials, but to ensure consideration for places that citizens – that is, taxpayers, voters – care about. And when, in the 1980s, we failed to pay proper attention to the concerns of tribes, the tribes prevailed on Congress to change the law and remind us of our duty. However inconvenient it may be, I don’t think we’re doing our jobs – whether we’re consultants, federal officials, or SHPOs – if we close our eyes to the law’s clear direction to consult with tribes and others. And in evaluating historic places, we can’t pretend that archaeologists speak for anybody but themselves, about what’s important to them. They certainly don’t speak for tribes unless the tribes authorize them to.

Flash! HUD Finds Herd Behavior Among Archaeological Sites! Scientists Stunned!

Back in May, the U.S. Department of Housing and Urban Development (HUD) put out a “fact sheet” on when to do archaeological surveys under Section 106 of the National Historic Preservation Act and related authorities. Here’s what it says:

HP FACT SHEET #6:
WHEN TO DO ARCHAEOLOGICAL FIELD INVESTIGATIONS
HUD offers the following guidance on when to do professional archaeological field investigations. It is applicable to both Part 50 and Part 58 programs. It meets the “reasonable and good faith effort” requirement to identify historic properties, per 36 CFR § 800.4(b).

Archaeological field investigations and related work should be approved only when HUD or the Responsible Entity (RE) is persuaded by authoritative sources of information that there is a “likely” (§ 800.4(b)(1)) presence of National Register-eligible or -listed properties within the project site and that the project may affect National Register resources.

Authoritative sources of information include, but are not limited to, reports, studies, surveys, predictive models, National Register data, and/or tribal input. These data must demonstrate that the project site contains or is reasonably adjacent to archaeological sites that meet National Register criteria.

The SHPO/THPO and other qualified persons may provide such information. The information should indicate a close and direct relationship between such previously discovered sites and the project site. It should also indicate the likelihood that National Register resources will be affected. Archaeological field investigation in such cases would help determine the presence of resources on site and provide the basis for establishing their significance and the project effects on them.

For urban areas, it is reasonable to consider the project site relationship only to such off-project archeological sites that are immediately adjacent to the project site.

In the case of projects for new developments in areas not previously developed or disturbed, a somewhat more distant site or ring of sites may be considered as relevant to the project site. But still, in this scenario, HUD or the RE must be persuaded that documented archaeology sites outside the APE are reasonably close enough to the project site to establish a likely relationship and so warrant a professional field investigation on the project site.

HUD or the RE should generally not honor a request for a professional archaeological field investigation without specific justification or solely on grounds that previous surveys have never been conducted in the area. HUD or the RE may turn down such requests as an unjustifiable public expense, particularly where private or
non-federal lands are involved.

This guidance is supported further by the Advisory Council on Historic Preservation’s 2007 Policy Statement on Affordable Housing and Historic Preservation (72 FR 7387-7389), Implementation Principle #8, that limits archaeological field investigations in certain situations.

Implementation Principle #8:

“Archeological investigations should be avoided for affordable housing projects limited to rehabilitation and requiring minimal ground disturbance”

NEED ADDITIONAL HELP? CONTACT YOUR LOCAL HUD ENVIRONMENTAL OFFICER.

Source: Office of Environment and Energy, Environmental Planning Division, CPD, May 2009

The fact sheet was an internal document, but it got out to some State Historic Preservation Officers (SHPOs) and one of them shared it with me. It took me awhile to get around to it, but I finally responded to it as follows:

I recently received a copy of your May 15, 2009 email distributing HUD fact sheet #6 entitled "when to do archaeological field investigations." Can you please explain the rationale for this "fact sheet," which appears to me to fly in the face of a fair number of facts? I am particularly struck by the premise that the likely presence of National Register eligible archaeological sites is somehow indicated only by "reasonable adjacency" to "archaeological sites that meet National Register criteria." Is it HUD's assumption that archaeological sites exhibit some sort of herd behavior that causes them to group together and never drift lonely out across the landscape? Is it also HUD's assumption that they somehow present evidence to passersby of their consistency with National Register criteria -- perhaps like Republican members of Congress waving their versions of health care legislation at the President? And are they also expected to self-demonstrate the danger that they will be affected by a project -- perhaps by quivering in fear?

I'm also interested in how HUD defines such terms as "other qualified persons" and "direct relationship between such previously discovered sites and the project site." Am I, for example, a "qualified person" based on 50 years of archaeological practice, or must one work for a government agency? What sort of "direct relationship" must an unevaluated site demonstrate to a previously documented site? Geographic? Cultural? Genetic? How close must this relationship be?

And why, "for urban areas," is it "reasonable to consider the project site relationship only to such off-project archeological sites that are immediately adjacent to the project site? What does such "reasonable adjacency" even mean, considering that urban sites (and rural ones, for that matter) often do not have well-defined boundaries?

To help me understand HUD's logic, perhaps you could relate the fact sheet's guidance to a well-known real world case like the African Burial Ground in New York City or the site of Tse-whit-zen in Port Angeles, Washington. As you doubtless know, in both these cases "archaeological" sites of considerable cultural significance (especially to African-Americans in the first case, Native Americans in the second) that had not been evaluated for National Register eligibility were discovered during construction and (among other impacts) unnecessarily cost federal and state agencies tens of millions of dollars. I should think that it would be among HUD's interests to avoid such impacts on taxpayers and recipients of HUD financial assistance, but I may be wrong.

Thank you for your attention to this request.

I sent this off to the person in HUD who had distributed the fact sheet, and immediately received an automated response, as follows:

Your message wasn't delivered because of security policies. Microsoft Exchange will not try to redeliver this message for you. Please provide the following diagnostic text to your system administrator.

Lacking a system administrator, I distributed my note to several listservs whose participants may be permitted through HUD’s portcullis. We’ll see what happens, if anything.

Archaeologists concerned about application of HUD’s remarkable – uh, is it a policy? A position? An opinion? Anyway, archaeologists concerned about it as it applies to specific cases may want not only to cite NHPA and the National Environmental Policy Act in arguing for surveys where they’re actually appropriate, but also the much-ignored Archaeological and Historic Preservation Act of 1974 (AHPA; See http://www.thecre.com/fedlaw/legal13/archpreserv.htm), which requires agencies, upon finding or being competently advised that their actions, or actions they assist or permit, may destroy historical, archaeological, or scientific data (Note: the law makes no reference to the National Register), to notify the Secretary of the Interior and then either recover the data or assist the Secretary in doing so. Most agencies and others have happily ignored this law, assuming that compliance with Section 106 of NHPA takes care of its intent. Since HUD is apparently now applying Section 106 only to archaeological sites that crowd together and loudly announce both their National Register eligibility and their endangerment, it may be necessary to dust off the AHPA. People (e.g. tribes, other descendent communities) concerned about archaeological sites for other than archaeological reasons will have to employ other strategies.

What Is the National Historic Preservation Act About? Part VI: TCPs, Tribes, and Plain Old People

I spent 1977-79 in Micronesia as “Consultant on Archaeology and Historic Preservation to the High Commissioner” – the High Commissioner being the boss of what was then the Trust Territory of the Pacific Islands. I learned a great deal in Micronesia about historic preservation, which is summarized in “How Micronesia Changed the U.S. Historic Preservation Program, and the Importance of Keeping It From Changing Back” (Micronesian Journal of the Humanities and Social Sciences 5:1, 2006, http://marshall.csu.edu.au/MJHSS/ ). What it came down to, though, was something I should have learned from my very first Section 106 case – at Tahquitz Canyon in Palm Springs, California, when the Advisory Council on Historic Preservation’s (ACHP’s) Bob Garvey was a lot more interested in what the Agua Caliente Tribe had to say than he was in my archaeological data. Preservation, Micronesia reminded me, is about people. We don’t seek to preserve old places and things for their own sake, but because they’re important to people – be those people Micronesian villagers, members of Indian tribes, residents of inner city neighborhoods, archaeologists, historians, or plain old taxpayers.

When I came back to the U.S. in 1979 and was hired by Garvey to oversee Section 106 review for the ACHP, I found that things in and around Section 106 had been evolving in a very different and – well, inhuman direction. Away from an interest in the concerns of people about historic places, and toward a sort of Cylon model (The original Battlestar Galactica had been my favorite TV show in Micronesia, the choices not being many). All mechanistic, automatic, and dominated by the interests, or disinterests, of professionals. Hire a properly qualified professional (archaeologist, architectural historian) and do a survey according to SHPO “standards.” Turn in report. Get approval. If you can meet the technical standards for “no adverse effect,” you’re done; if not, you negotiate a memorandum of agreement with the SHPO and THEN you’re done. If you’re a citizen who wants to save a threatened place, you’re out of luck unless you know how to sling around the jargon, play the regulatory game, or can afford to hire someone who did, or unless you have the social connections to get someone like the National Trust to help you out. OK, I’m exaggerating, but that’s the direction things were headed.

The 1980s were an interesting time to work for the ACHP, for several reasons. First, there were major amendments to NHPA in 1980, notably adding Section 110 to spell out a range of agency responsibilities beyond Section 106 (These didn’t accomplish much and were adjusted considerably through further amendments in 1992 and thereafter). Second, the Indian tribes and Native Hawaiians were beginning to get seriously, institutionally involved in using Section 106 to protect places they thought important; before the 1980s there were occasional tribal or Native Hawaiian cases, but only in the ‘80s did the tribes and organizations begin to look at the process as a whole, politically, and seek adjustments to make it work better for their kinds of places. Third, Ronald Reagan came to town.

I was from California, so Reagan was not an unknown quantity to me, and I knew that he was not necessarily going to run roughshod over cultural resources. In fact, as governor he had flat-out killed a major reservoir project (the High Dos Rios Dam) that a lot of environmentalists and a few of us archaeologists, organized by Cabrillo College’s Rob Edwards, opposed, and he did it after the tribes of the area went to Sacramento and told him how it would rip the guts out of their cultural landscape. In those days too, the Republican Party had not yet completed its self-inflicted lobotomy; there were Republicans who could be reasoned with, and who cared about the environment, history, and the welfare of regular people. It was tricky – because the administration, and especially Reagan’s Secretary of the Interior, James Watt – really didn’t like regulatory schemes like Section 106 and NEPA – but it proved possible to hold onto, and even improve a bit, on the Section 106 regulations. And to do a bit more; it was during the Reagan administration that Pat Parker of NPS and I wrote National Register Bulletin 38 about "Traditional Cultural Properties" (TCPs), stressing the fact that traditional cultural significance to a community of plain old people could make a place eligible for the National Register, regardless of what professionals thought of it. That was actually an attractive notion to some Reagan Republicans, because it flew in the face of the snotty eastern professional establishment. Bulletin 38 was initially conceived as an ACHP document, and was approved by an ACHP dominated and chaired by Reagan appointees. The National Register, which had been keeping its head very low for fear of getting it chopped off, then growled from its manger that the document really, after all, was about eligibility so it ought to be a Register Bulletin. That was OK, except that we had to put in some silly nitpickery about things like boundaries to make the Register people happy. The bulletin made the essential point: that historic/cultural significance is not something that only professionals can recognize and appreciate based on their fancy educations; it’s something that everybody defines in their own ways, that’s meaningful to everyone. Which, I believe, is what the founders of NHPA were trying to say when they emphasized – in With Heritage So Rich, for instance – that historic places define the characters of our communities, and are fundamental to their, and hence our, identities.

But Bulletin 38, while it has been troubling to a good many bureaucrats, particularly at the National Register and among the SHPOs, was only a small stumbling block on the path to Cylonization. On the whole, the historic preservation system has continued to evolve toward less and less connection with ordinary people and communities, and greater and greater fixation on technical issues with which only jargon-happy professionals are conversant. Even the Tribal Historic Preservation Officers, who came on the scene after the 1992 amendments to NHPA, have been pretty well absorbed into the system, forced by NPS to hire archaeologists to represent them, and dragooned into mind-numbing games of paper-exchange with project proponents in lieu of real, consultative Section 106 review.

Let me bring my part of this discussion to a close (I hope that others will contribute their perspectives), by returning to the charges made by my Amazon critic. He or she accuses me of two plots, perpetrated in two of my books:

1. In Places that Count, he or she says, I made “a drastic push on the concept of TCPs that ends up trying to redefine the very intent of NHPA and what kinds of places are supposed to be protected.” Of course, I don’t think this is true at all. In Places that Count, and in Bulletin 38, I sought (with my co-author in the latter case) to remind the government establishment that this is, after all, supposed to be a government of, by, and for the people, and its historic preservation institutions ought to seek the “protection” (that is, in the case of Section 106, ensure the consideration) of places that are important to the people, not just to archaeologists (or historians, architects, or the Keeper of the National Register). I think this is precisely what the founders of NHPA intended. It is narrow-minded practitioners of specific disciplines both inside and outside government – like, I surmise, my critic – who have over the years redefined what should be “protected” (meaning in my critic’s case, I suspect, dug up to my critic’s financial benefit), and made it mean just the places that professionals can appreciate.

2. In Saving Places that Matter, my critic says I’ve written “a lay person's manual on ‘how to use Section 106 to derail any development you happen to disagree with.’" I’ll plead guilty to this one, because I think that’s what Section 106 was and should be designed to do. Not that the lay person will always be successful, but in a democracy a citizen should have a fair crack at derailing government projects with which he or she disagrees, subject to the rule of law.

But my plots have not thus far worked very well. As my most recent book, Our Unprotected Heritage (Left Coast, 2009) bemoans, we still have – increasingly have – a system masquerading as Section 106 and NEPA review that “protects” only the kinds of things my Amazon critic seems to think important, and enriches people like my critic in the process.