Tom King's CRM Plus

Tom King's CRM Plus

Some Thoughts About Programmatic Agreements
February 4, 2005

I?ve been asked to review a few draft Programmatic Agreements (PAs) lately, proposed for execution under Section 106 and 36 CFR 800.14. They?ve uniformly been pretty dreadful. In case anyone?s interested, I thought I?d share a few observations on one typical example, whose identity I?ve disguised to protect the innocent.

This particular PA was drafted by a State department of transportation (DOT), for signature by itself, FHWA, the SHPO, and an Indian tribe. Once I?d gone through it with a reasonably fine-toothed comb, I could see that it had two modest goals:

1. categorically exclude certain classes of action from standard Section 106 review; and
2. allow the State DOT to represent FHWA in Section 106 consultations with the tribe.

The first thing I want to say is that a PA wasn?t really necessary to achieve either of these goals. With respect to the first, the agency was really saying that it simply didn?t want to communicate in the usual way with the SHPO and tribe about a particular range of action types. This could have been done with some fairly simple exchanges of letters, or a very simple agreement, about how FHWA and the State DOT would initiate consultation under 36 CFR 800.3. By elevating the matter to the level of a PA, they got all balled up, and ironically ended up (as we?ll see) proposing to exclude from review a number of project types that had considerable potential for adverse effect ? just not on resource types that the State DOT figured would be important to the tribe. As for the second goal, it could easily have been achieved (assuming the tribal government found it achievable) through an exchange of letters between FHWA and the tribal government.

But there seems to be a perception abroad in the land that the PA is the only way to structure and adjust relationships among parties in the 106 process, or to clarify how, in the eyes of those parties, the process can be made to work in particular contexts. So in this case as in others, the parties embarked on the PA road, and put their feet in a lot of nasty potholes and piles of poop.

For one thing, they started out by indicating that the agreement was about a lot more than just providing for some exclusions and delegating some responsibilities. It?s title announces that it?s about ?IMPLEMENTATION OF THE FEDERAL-AID TRANSPORTATION PROGRAM IN (THE STATE).? The actual limited purposes of the document are never made clear, except by implication and the absence of stipulations dealing with anything else.

Perhaps in lieu of such stipulations, they stuffed the agreement full of gratuitous promises to obey the law. For example, in the ?Whereas? clauses:

? ?FHWA agrees to coordinate under a government-to-government relationship with federally recognized tribal governments.?

? ?FHWA? wishes to conduct its programs in a manner consistent with 36 CFR 800? (particularly odd since the core purpose of any PA is to allow an agency to conduct a program in a manner inconsistent with the standard process set forth in 36 CFR 800).

And in stipulations:

? ?If the discovery (of Native American cultural items) is located on federal or tribal land, the (State DOT) will submit to the tribe a signed, written Plan of Action in compliance with Sections 10.3 and 10.5(c) of NAGPRA?s regulations.?

Speaking of being gratuitous, they also burdened the document with a number of Statements of Noble Intent (SNI) ? institutional chest-thumps ? such as?

? ?FHWA is committed to the design and construction of transportation systems that achieve a safe and efficient function?.?

Quickly becoming, in the words of Benjamin Disraeli, ?inebriated with the exuberance of (their) own verbosity,? the drafters blew the intent of their PA up to proportions far beyond its actual content:

? ?Now, therefore, (the parties to the PA) aspire to engage in meaningful long term planning for the protection of historic and archaeological properties and, toward that end, desire to (1) develop a comprehensive and efficient process for all Section 106 undertakings; (2) simplify procedural requirements to the maximum extent possible; (3) eliminate unnecessary paperwork; (4) reduce the role of (the tribe?s THPO) to the minimum extent required; (5) devote a larger percentage of time and energies identifying relevant problems threatening historic and archaeological properties; and (6) create innovative programs to address those problems.?

In the face of all this verbiage, the actual two purposes of the agreement ? to exclude certain types of action from what the parties understood to be normal 106 review and to delegate tribal consultation functions ? were virtually buried, and could be ferreted out only with difficulty. At the same time, the high-flying language conveyed the impression that the PA set up a whole new approach to Section 106 review in the state, though it manifestly did not. This is dangerous, because it can mislead people into thinking that given the PA, they need not attend to the regulations, when in fact the regulatory process is hardly affected at all by the PA?s terms.

After two single-spaced pages of generally meaningless circumlocution and SNIs, the PA finally got to one of its major purposes. Oddly, the authors chose a ?Whereas? clause to stipulate that:

? ?(The parties) hereby agree that the transportation undertakings defined in Appendix A have been determined by all parties to have NO EFFECT on cultural resources/traditional cultural properties in (the State) pursuant to 36 CFR 800.?

Never mind what they meant by ?cultural resources/traditional cultural properties,? or how these related to the historic properties whose consideration is the actual subject of 36 CFR 800. The main problem here is that the authors were trying to establish a material fact by executive fiat. It?s kind of like the United States formally declaring in Congress assembled that there are weapons of mass destruction in Iraq. Whether there were WMD in Iraq was a factual question, which could be answered only by on-the-ground study. Similarly, whether something will or will not have an effect on historic properties is a factual matter; one can?t make it one way or another by declaring it so. Under the regulations, determinations of ?no historic properties affected? (which probably is what the drafters meant by ?no effect?) are made based on an agency?s identification work, but in this PA they?re based on nothing at all.

Most of the activities listed in Appendix A do look pretty benign, but one certainly can?t guarantee that they will never have any effect on historic properties. One example is ?rest areas repair and maintenance.? Are there no rest areas in the state with, say, archaeological sites buried under their landscaping, that might be affected by landscape maintenance? Or how about ?replacement of bridges on existing alignment, when the bridge to be replaced is less than 50 years old and is not exceptionally significant?? Does one never excavate to effect such replacement? And who decides about ?exceptional significance??

And once again, the authors couldn?t restrain themselves, and seem to have forgotten what they were doing. They proposed to exclude:

? ?Streetscape improvements including benches, decorative lighting, textured crosswalks, transit shelters, and containerized plantings where the contract does not disturb existing subbase in original ground where soil horizons have been removed;?

? ?Transit improvements, bus bays, bus pullouts, and Park and Ride facilities located in urban settings or previously developed areas.?

? ?Rehabilitation of historic structures in accordance with the Secretary of the Interior?s STANDARDS FOR REHABILITATION and approved by the SHPO.?

These activities are supposed to have ?no effect? on historic properties? Maybe they aren?t likely to affect places important to the tribe, but can a PA whose title indicates statewide and program-wide scope not apply to the whole state, and the whole Federal-aid transportation system in the state? Are the SHPO and tribe not being asked to agree to the wholesale exclusion from review of actions that may have profound effects on buildings, structures, and districts in urban areas? Are they not being asked to do this on behalf of the people in such areas, who value such properties? Without a shred of participation by such parties in the PA consultation? That?s certainly what the PA?s title, and the absence of statements of limitation, suggest. I wonder how any of the State?s cities would react if they found out.

The other apparent purpose of the PA ? delegation of FHWA?s tribal consultation responsibility ? is also buried in a ?Whereas? clause. In fact, it?s a clause within a clause:

? ?Whereas?. when a proposed project includes FHWA funding, the (State DOT) will initiate Section 106 Native American consultation as FHWA?s agent.?

That?s as explicit as it gets. Thereafter, there are simply references to the State DOT sending things to the THPO and the THPO responding. Then at the end, it?s the THPO who?s got a signature line ? not the Chairman, President, or other representative of the tribal government. Can the THPO agree on behalf of a tribe that a Federal agency can delegate government-to-government consultation responsibilities to a state agency? Not in any tribe I?ve ever encountered. No wonder the tribe hasn?t signed off on this PA ? particularly since, I was told, it had simply been sent to the THPO for signature, with no actual consultation at all.

It?s easy to make fun of this PA, but I?m afraid it represents something of a trend. With the Advisory Council?s effective withdrawal from participation in 106 review, and even more from intellectual engagement in the operation of the process, there?s no one to maintain quality control, and I?m seeing some truly amazing agreements being produced and solemnly executed by agencies, SHPOs, and THPOs. The result is likely to be vast confusion at best, severe erosion of the integrity of Section 106 review and real losses of historic properties at worst.

Another result ? not prospective but actual, here and now ? is a lot of time wasted negotiating agreements that amount to much ado about very, very little. The PA I reviewed, like lots of others I?ve seen, is mostly verbiage and puffery, camouflaging a few substantive if confusing and misleading stipulations. And I?ve seen people spend a lot of time arguing about verbiage and puffery.

Finally, as noted at the outset of this paper, there?s no real reason for FHWA or the State DOT to even develop such a PA. An agreement to allow FHWA to delegate its tribal consultation responsibilities to the State could be effected ? if it can be effected at all ? through an exchange of correspondence between FHWA and the tribal government (but probably not the THPO). If the tribe isn?t willing to respond positively to FHWA?s initiative when cast in the form of a letter, a phone call, a meeting, or some combination of the three, it?s not going to be willing to sign a PA. Though perhaps FHWA could con the THPO into signing it without realizing that he was exceeding his authority ? a bit of chicanery that would be a credit to Andrew Jackson.

As for excluding some project types from review, some of the types listed in the exceptions appendix could arguably be excluded unilaterally by FHWA on the grounds that they have no realistic potential for effect on historic properties. Pavement repairs are an example, and re-striping lines. But it?s apparent that what FHWA was concerned about in this case was not Section 106 review in general, but the specific bureaucratic business of consultation with the SHPO and THPO. You don?t need a PA to exclude things from such consultation. Again, I think all it would take is an exchange of letters, or a simple bilateral agreement, about what FHWA and the State DOT would and would not do in initiating Section 106 review under 36 CFR 800.3.

In the hopes of forestalling some future nonsense PAs, I?ve attached, below, suggested drafts of three model letters designed to accomplish the two purposes of the PA reviewed above.

Tom King
Silver Spring, Maryland
February 5, 2005
Attachment 1: Letter: FHWA to head of tribal government

Dear (Chairman/President) ______________

The Federal Highway Administration (FHWA) is seeking ways to simplify its government-to-government consultation with Indian tribes regarding transportation projects in (State), specifically with respect to potential impacts on historic properties under Section 106 of the National Historic Preservation Act.

Such projects are invariably planned and carried out by the (State) Transportation Department (STD). Since you have established your (Name of Office or Department performing THPO function) as your Tribal Historic Preservation Officer (THPO), we believe it would be most efficient for us to authorize the STD to consult directly with your THPO on our behalf regarding all such projects that do not actually affect the fee or trust lands of your tribe. Of course, FHWA will always be available to consult with you on a government-to-government basis upon your request, and will continue to so consult in this manner with respect to projects affecting the fee or trust land of your tribe.

If this arrangement is acceptable to you and your tribal government, I hope you will so advise me by letter. If you would like to meet about this matter, or discuss it on the telephone, I would be happy to do so at your convenience. Please contact me at (phone number) to discuss it or arrange a meeting.

Sincerely


cc: THPO (Note: THPO should already have been consulted about this so it?s not a surprise)

Attachment 2: Letter State Transportation Department to THPO

Dear (THPO)

This is to confirm the outcome of our meeting of (date), at which we identified certain types of transportation project in (State) that are so unlikely to affect historic properties of interest to your tribe that there is no need for us to consult with you under Section 106 of the National Historic Preservation Act. The project types we identified are listed in the attachment to this letter (Attachment A: ?Project Types on Which Section 106 Consultation With the ______ Tribe Will Not Be Routinely Undertaken?).

If you agree, when we consider initiating the Section 106 review process on a project falling into one of the identified categories under 36 CFR 800.3(e) and (f), we will not routinely contact you and request your participation. We will, however, notify you of any such project that will affect the fee or trust lands of your tribe, and of any project that our internal review suggests may be of interest to you. As you requested in our meeting, we will also advise you of any project that is planned to be conducted in the month of _______ within any of the areas identified on the attached map (Attachment B: ?Areas of Special Cultural Importance to the _________ Tribe?), and seek your assistance in ensuring that such projects do not adversely affect your tribe?s cultural interests. We will also consult with you about any project at your request.

We propose to review the effectiveness of this arrangement with you on an annual basis, and make adjustments to the arrangement as needed.

If you agree with this approach, please sign the concurrence line below and return a copy of this letter to you for our files. If you would like to discuss this matter further, please contact me at (phone number).

Sincerely





.

Attachment 3: Letter FHWA to SHPO

Dear (THPO)

This is to confirm the outcome of our meeting of (date). As you will recall, that meeting was aimed at clarifying what the (State) Department of Transportation (DOT) will do when it initiates review of certain routine project types on our behalf under 36 CFR 800.3, and on what your office, the DOT, and we agree constitutes a ?reasonable and good faith effort? to identify historic properties with respect to such project types under 36 CFR 800.4. The authority for this agreement is found at 36 CFR 800.3(g).

The project types we collectively identified are listed in the attachment to this letter (Attachment A: ?Project Types on Which Section 106 Consultation With the ______ State Historic Preservation Officer Will Not Be Routinely Undertaken?). They are all types of project that have very limited potential for adverse effect on historic properties, and whose mild potential for such effects can, we agreed, be handled by the (State) DOT without your advice and assistance.

We agreed that with respect to the property types listed in Attachment A, we will regard our responsibility to consult with you under 36 CFR 800.3(c) to be fulfilled by the programmatic consultation whose results are documented in this letter, and by the annual consultation proposed below, except in circumstances where the (State) DOT?s internal review and our compliance with the National Environmental Policy Act (NEPA) suggest to us or the (State) DOT that further consultation with your office is appropriate, whereupon the (State) DOT will undertake such consultation in accordance with 36 CFR 800.3(c).

We also agreed under 36 CFR 800.3(e) that with respect to the project types listed in Attachment A, there is no need for public involvement in individual project review beyond that routinely carried out by the (State) DOT as part of its planning and NEPA compliance processes, except that in interacting with the public and with local governments about such projects, the (State) DOT will routinely distribute the handout attached (Attachment B: ?If You Have Concerns About Impacts on Historic Places?), which advises the public about how to make any historic preservation concerns known to the (State) DOT, FHWA, and your office. Should any such concerns be raised, or should the (State) DOT otherwise think it necessary, the (State) DOT will provide for further public involvement, in consultation with your office.

We also addressed the requirement of 36 CFR 800.4(b)(1) that a ?reasonable and good faith effort? be made to identify historic properties subject to effect by a project. We agreed that with respect to the project types listed in Attachment A, the (State) DOT?s routine planning and NEPA compliance processes comprise such a reasonable and good faith effort in the vast preponderance of cases, and that no field survey to identify archaeological sites or other historic properties will ordinarily be carried out. We also agreed, however, that the (State) DOT will consult with your office in any case in which they are uncertain about the need for such a survey, and in any case in which a local government, an Indian tribe, or some other interested party requests such a survey. The (State) DOT pledged that such a survey will be carried out if your office advises that it is needed.

Finally, we agreed to review the effectiveness of this arrangement on an annual basis, and make adjustments as needed.

As we discussed, we are contacting all Tribal Historic Preservation Officers (THPOs) and Indian Tribes with interests in your State to seek similar arrangements. Nothing in this letter affects our obligations with respect to such tribes and THPOs.

If you agree with this approach, please sign the concurrence line below and return a copy of this letter to you for our files. If you would like to discuss this matter further, please contact me at (phone number).

Sincerely

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THE KEEPER OF THE NATIONAL REGISTER REDEFINES CULTURE:
A COMMENT ON THE KEEPER?S OPINION
OF THE CAPE COD DUNE SHACKS

Thomas F. King
June 1, 2007

Introduction

On May 24, 2007, Janet Snyder Matthews, the Keeper of the National Register of Historic Places, sent a memorandum to the Acting Regional Director of the National Park Service?s (NPS) Northeast Region. The memo provided Ms. Matthews? opinion on whether the ?Dune Shacks of the Peaked Hill Bar Historic District, Barnstable County, Massachusetts? ? a property formally determined eligible for the National Register some 18 years ago ? is significant as a ?traditional cultural property.? Ms. Matthews? memorandum makes some peculiar statements that I think merit critical attention.

With Patricia L. Parker of NPS, I invented the term ?traditional cultural property[1]? as it is used in historic preservation in the United States ? where it is often referred to by its acronym ?TCP.? Parker and I coined the term in National Register Bulletin 38, Guidelines for the Identification and Documentation of Traditional Cultural Properties, published by NPS in 1990. I?ve discussed the background of Bulletin 38 ? why we wrote it, its intent, our choice of terminology, in several publications[2], and will not reiterate here. Ms. Matthews? opinion in the dune shacks matter is of concern to me because it evidences a deep misunderstanding of the ?TCP? concept, an unKeeperly unfamiliarity with National Register Bulletin 38, and an assumption of governmental omniscience that I find bothersome in an ostensible public servant.

I will not discuss the character of the dune shacks here, other than to note that they comprise a collection of cottages mostly constructed by and used in the past and currently by artists, poets, writers, and other members of the arts community. This community has considerable time depth in the area. The shacks and the people who value them have been discussed in detail by ethnographer Robert Wolfe in a 2005 evaluation[3], and by Wolfe and T.J. Ferguson in a 2006 report[4]. The Peaked Hills Historic District, including the dune shacks, was determined eligible for the National Register in 1989 under National Register Criteria A, B, and C.

The question of the shacks? traditional cultural significance came up a few years ago as NPS undertook to evict some of the shacks? residents. Since the residents maintain the shacks, and since the district was determined eligible for the Register at least partly because of its significant association with its residents and their artistic endeavors, questions arose over the propriety of these actions. In undertaking them, as far as I have determined, NPS did not bother to comply with Section 106 of the National Historic Preservation Act. Apparently, however ? and I am rather reading between the lines here ? NPS then was persuaded that it had Section 106 responsibilities with regard to the shacks, and that if the shacks were eligible as a TCP, the residents would have more power in the Section 106 consultation process than would be the case otherwise. The State Historic Preservation Officer opined that the shacks did in fact comprise a TCP. Unable to bring itself simply to respect the community and its traditional associations, NPS contracted for a study, performed by Dr. Wolfe. Dr. Wolfe concluded that the dune shacks were indeed significant as a TCP. Unwilling to accept this conclusion without vetting, NPS had Dr. T.J. Ferguson examine Dr. Wolfe?s work; the result was the Wolfe-Ferguson report, concluding that the dune shacks were eligible for the National Register as a TCP. The residents and various local governments offered supporting opinions. But NPS was still unsure, so it requested the ?determination? of the Keeper ? an NPS employee, but we are not to imagine that this might have made any difference. The Keeper, in simple terms, said no.

The Meaning of the Keeper?s Opinion

For a government action that has caused such sturm und drang, the Keeper?s opinion is curiously meaningless. Meaningless, that is, in real world terms; what meaning it may have in the world where the Keeper and her associates live can only be guessed.

Let?s be clear about what the category ?TCP? means. TCP is not a National Register criterion, separate and apart from the formal criteria A, B, C, and D[5]. It is really a descriptive term, like ?cottage,? or ?archaeological site,? or ?big gray rock.? When we wrote Bulletin 38, Parker and I needed a term to embrace a range of place-types that were being given short shrift by government despite their significance to real people ? Native American spiritual places, traditional neighborhoods, culturally valued landscapes and landforms, and so on. No term was sufficiently embracing, so we invented one ? traditional cultural property. It?s simply a semantic box, or envelope, within which various types of place can be kept.

So, who is authorized to decide whether something is or isn?t a TCP? Well, who is authorized to decide whether something is a cottage, or an archaeological site, or a big gray rock? It depends, of course; if you?re a geologist and I?m not, your opinion about the big gray rock is probably better than mine. But archaeologists can argue over what is and isn?t an archaeological site, and one person?s cottage may be another?s palace and another?s hovel. In any event, cottageness, siteness, and rockness are more or less matters of opinion, on which people can honestly reach divergent conclusions, and ? here?s the important point ? no government agency has the authority to decide the matter.

In just the same way, no government agency has the authority to decide whether something is or is not a TCP. The Keeper has the authority to decide whether a given TCP (or non-TCP) is eligible for the National Register, but she has no more official role in deciding whether something is a TCP than she has in deciding whether something is a rock, a boat, or a fig tree.

Who can determine whether something is a TCP? According to National Register Bulletin 38:

?It is vital to evaluate properties thought to have traditional cultural significance from the standpoint of those who may ascribe such significance to them?[6]

In other words, traditional cultural significance is defined and determined by the people who know and care about a place. The bulletin goes on to acknowledge that a group?s assertions about a place can and should be ?subjected to critical analysis,? but the bottom line is the obvious truism that only I can say what?s important to me, and only you can say what?s important to you. Neither of us needs the Keeper to instruct us in the matter.

So the Keeper?s opinion is simply an opinion. It?s also an opinion without practical consequence. The district remains eligible for the National Register, under criteria A, B, and C. The dune shacks contribute to the district; their use by artists and their colleagues is understood to be part of the district?s significance. Any eviction or demolition action by NPS would obviously require review under Section 106[7]. The dune dwellers would be entitled to be consulting parties in any such review, based on their interests in the district[8].

So what did the Keeper?s opinion mean? Only that in the Keeper?s opinion, the shacks are not significant as a TCP. This opinion must have deep meaning to the Keeper, but in real world terms it is simply one ostensible specialist?s conclusion, to be compared and contrasted with those of the residents, Wolfe, Ferguson, the SHPO, and others in future evaluations of the place.

If the Keeper?s opinion has marginal relevance to the dune shacks themselves, it has rather chilling implications for other TCP cases. We may, and should, wonder what will happen when other properties of traditional cultural significance, not already on or determined eligible for the Register, are brought to the Keeper for determinations of eligibility or as nominations. To judge from Ms. Matthews? memorandum, the prospects for official recognition of such significance are not good. The Keeper appears to be unfamiliar with the National Register?s own guidance on the evaluation of TCPs, and to have some strange notions about what makes such properties significant.

The Keeper?s Understanding of National Register Bulletin 38

Ms. Matthews? memorandum includes what purports to be a summary of what Bulletin 38 says about TCP evaluation, reproduced below.

Traditional Cultural Properties

National Register Bulletins provide guidance and technical information regarding the evaluation of cultural resources. National Register Bulletin #38 provides flexible guidance regarding the evaluation and documentation of TCPs. In general, as discussed more fully in the Bulletin, a TCP has the following characteristics:

A living, traditional group or community;
The group/community must have existed historically and the same group/community continues to the present;
The group/community must share cultural practices, customs, or beliefs that are rooted in the group/community?s history;
These shared cultural practices, customs, or beliefs must continue to be held or practiced today;
These shared cultural practices, customs, or beliefs must be important in maintaining the continuing cultural identity and values of the group/community;
The group must transmit or pass down these shared cultural practices, customs, or beliefs through the generations, usually orally or through practice; and
These shared cultural practices, customs, or beliefs must be associated with a tangible place, and the place must be directly associated with the identified cultural practices.

Most of the bulleted sentences and sentence fragments are accurate enough glosses on what Bulletin 38 actually says. The second bullet, however ? ?The group/community must have existed historically and the same group/community continues to the present? ? is not found in Bulletin 38 in any form I can discern upon rereading the publication. The Keeper appears simply to have made it up. She goes on, in explaining ?why the dune shacks? does (sic) not have significance as a TCP,? to lean entirely on this putatively ?most important characteristic of a TCP? as her basis for concluding that the dune shacks don?t comprise one. This suggests to me that Ms. Matthews is unfamiliar with the actual language of the bulletin, and/or that over the years since its publication her staff have begun to read into the bulletin a standard that its authors never intended to include ? and moreover, to elevate this standard to ?most important? status. This, as we?ll see, is a problem.

The Keeper?s use of the ?historical existence/continuation to the present? standard

Why is there a problem with employing the standard that Ms. Matthews and her people have invented? It seems intuitively obvious that a group ascribing ?traditional? significance to a place must have existed long enough to have traditions, and must exist today in order to honor them. The problem with this standard, however, is rooted in the question of who defines traditional significance. If, in the bulletin?s words, we are to ?evaluate properties thought to have traditional cultural significance from the standpoint of those who may ascribe such significance to them,? is it legitimate for someone standing outside the group ? most notably a government official ? to evaluate the legitimacy of the group?s perceptions? If ? as the bulletin details ? it is inappropriate for us to question whether an Indian tribe?s ancestors ?really? emerged from a lower world at the beginning of time, is it legitimate for us to deny the beliefs of the Cape Cod dune dwellers about their history, and indeed their very existence as a group?

If the dune dwellers had dragged their shacks into the dunes last year, it might not be problematic to apply the ?historical existence/continuation to the present? (HE/CP) standard, though I think the wisdom of doing so would still be questionable. But the dune dwellers did not arrive yesterday; they?ve been around for quite awhile, so the Keeper has to develop a convoluted rationale for denying them legitimacy. The fact that she is willing and able to do this, in the face of massive contrary evidence, bodes ill for future human-based TCP evaluations.

Ms. Matthews? argument ? to the extent I can extract its essence from her prose ? goes like this:

The community (she would probably put the word in quotes) of dune dwellers is made up of several groups, including long-term and short-term occupants, visitors, and so on.
These groups are ?fluid, evolving, and different from one year to the next.?
Wolfe?s and Ferguson?s reports focused on the long-term occupants.
Many of those offering opinions about the dune shacks emphasized the relevance of groups that do not comprise long-term occupants.
Some comments suggest that the groups using the shacks are so fluid that no ?cultural focus? can be discerned[9].
Therefore, ?the District should not be identified for its significance as a TCP.?

If the reader?s response to this argument is ?huh?? I am not surprised; that?s my response, too. Granting the accuracy of points 1 through 5, it is utterly unclear, at least to me, how Ms. Matthews jumps to point 6 (which actually is the lead-in to her discussion). How does inclusion of multiple subgroups, fluidity, a tendency to evolve, year-to-year differences in composition, the existence of groups other than the long-term occupants, and questions about ?cultural focus? (whatever that is) translate into non-TCP status? Presumably it has something to do with the newly-minted HE/CP standard, but even if one accepts that standard, the intellectual leap Ms. Matthews has made is difficult (impossible, for me) to follow. Apparently Ms. Matthews would not deny that the long-term occupants as a group have ?historical existence,? and it is pretty evident that this group ?continues to the present.? If this is true, then presumably Ms. Matthews would regard the dune shacks as comprising a TCP if there were no one there but the long-term occupants. But by having the temerity to die or move away from time to time and be replaced by others, the long-term dune dwellers have compromised their historical/cultural legitimacy in Ms. Matthews? eyes.

Apparently to the Keeper, if the community that ascribes significance to a property has been so gauche as to change over time, its claim to ?community? status has been lost, and it doesn?t really value the places it thinks it values. But historians, anthropologists, and sociologists have pretty thoroughly documented the fact that all human societies change, evolve; all have more or less fluid boundaries. If there is one immutable principle of human existence, it is mutability. By Ms. Matthews logic, then, no living community can have a TCP. And of course, no dead one can either, since it has not ?continued to the present.?

Let?s imagine the HE/CP principle and Ms. Matthews? logic applied to a more ?traditional? sort of TCP than the dune shacks. Suppose an Indian tribe asserts that a hill somewhere in its traditional territory (or elsewhere) is an important spiritual place, and is misled into nominating it to the National Register[10]. In evaluating the nomination, the Register will have to ask whether the tribe?s composition and boundaries have changed and evolved over time. It would be a rare tribe for which the answer to this question would not be ?yes.? The Keeper might be satisfied that the tribe ?existed historically,? as evidenced by historical accounts, archaeology, perhaps oral history, perhaps treaties, but has it ?continued to the present?? Well, the Keeper might say, maybe it has and maybe it hasn?t; it all depends on how fluid the group?s boundaries are. So ? assuming the tribe has patience with this kind of effrontery ? the tribe submits its tribal rolls for the last century or two. And ? what do you know? ? they document a considerable fluidity. Not only have tribal members been born and died, but people have come into the group through marriage, perhaps through adoption, while others have left or been thrown out. Some tribal members come and go; a couple live in Switzerland, one member has been elected to the House of Representatives and lives in suburban Virginia. Oh dear, can this really be seen as a community? Guess not, so its place can?t be a TCP.

If this hypothetical seems absurd, I will only say that I don?t think it any more absurd than the Keeper?s opinion about the dune shacks. Since the Keeper?s decision in this matter was pretty obviously a politically motivated one, we can hope that it will not be replicated in cases where the National Park Service is not the agency questioning a place?s traditional cultural significance, but I have my doubts. The Keeper certainly engaged in convoluted, unsubstantiated logic (broadly defined) to reach the conclusion desired by her agency, but the fact that such logic apparently makes sense to her and her colleagues ? that they can put it out in public with straight faces ? cannot make one very hopeful about the quality of likely future decisions.




[1] Also taken to mean ?traditional cultural place,? which amounts to the same thing; we used ?property? in order to parallel ?historic property,? a term used in the National Historic Preservation Act.
[2] See, for instance, Chapter 15, ?Stupid TCP Tricks,? in Thinking About Cultural Resource Management: Essays from the Edge; AltaMira Press 2002; Chapters 1 and 2 in Places That Count: Traditional Cultural Properties in Cultural Resource Management, AltaMira Press 2003; and ?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 5:1/2:505-516, http://marshall.csu.edu.au/MJHSS/
[3] Dwelling in the Dunes: Traditional Use of the Peaked Hills Bar Historic District, submitted to the National Park Service 2005.
[4] Traditional Cultural Property Assessment, Dune Shacks of the Peaked Hills Bar Historic District, Cape Cod National Seashore, submitted to the National Park Service 2006.
[5] As set forth in regulation at 36 CFR 60.4
[6] National Register Bulletin 38:4, emphasis added.
[7] This is not, however, to say that NPS will subject its decisions in such matters to such review; it is required to, after all, only by federal law.
[8] 36 CFR 800.2(c)(5)
[9] The Keeper does not define this somewhat ambiguous term.
[10] For the record, I recommend NEVER nominating TCPs, or anything else, to the National Register unless there is a very good practical reason for doing so.

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Splinters For a Platform

I for one would like to kick around ideas about what we should look for in a presidential platform splinter (it would hardly be a plank) on cultural resources. So I posted the following yesterday on ACRA-L.

I?ll start by stipulating that I?m a lifelong Democrat, and a supporter of Barack Obama. At the same time I?ll say that in terms of demonstrated thoughtful support for initiatives that support the kind of thing we do (or ought to do), it?s hard to beat John McCain. I?m thinking of his long-time sponsorship of the National Institute for Environmental Dispute Resolution, which applies the principles on which section 106 review is based (despite their near-abandonment by the Advisory Council on Historic Preservation) to the management of environmental impacts in general.

That said, let?s consider: whichever party one supports, and whatever candidate, what would we like whoever?s elected to do in terms of CRM? Here are my opening suggestions, which naturally reflect my beliefs that (a) impact assessment and mitigation are the heart and soul of CRM; (b) that CRM is tightly related to environmental impact assessment (EIA); (c) that it ought to be about giving a fair shake to things that are important to ordinary people, not just specialists; and (d) that the CRM and EIA systems are in serious trouble, despite the happy talk we get from NPS, the Advisory Council, and the SHPOs. I didn?t mean to make them the Seven Rs; they just came out that way. They?re in no particular rank order.

Reformulate environmental, social, and cultural resource impact assessment.

Nobody wants to talk about it, but review of project impacts under NEPA, Section 106 of NHPA, and related authorities has devolved substantially into the generation and exchange of paperwork, into mindless adherence to the (often counterproductive and overly complicated) dictates of regulatory authorities (e.g. SHPOs) and ? most damagingly ? into client-contractor relationships that paper over project impacts and frustrate the interests of the public. It will be a difficult job ? because the regulatory agencies and contractors have vested interests in the status quo, and the advocacy groups can?t bring themselves to advocate anything but its continuance with more funding ? but the new president needs to put some good minds to work reformulating the process of impact analysis -- seeking to make it honest, straightforward, transparent, efficient, and consultative. We should end the inherently corrupting practice of having project proponents hire and supervise the consultants who assess the impacts of their projects, and simplify review processes to a point at which citizens can participate in meaningful ways.

Reform the management of federal land and resources in the interests of future generations
We need a thorough review of federal agency policies and how they are implemented, to undo (to the extent it?s possible) the current administration?s policy of carte blanche for private energy extraction, resource development, and other private exploitation of federal and tribal land and resources. This is not to say that the federal estate should be locked up, simply that balance needs to be restored in the public interest, and agencies need to understand their duties to be those of stewards, not facilitators of every cockamamie development scheme that comes along. It is also not to suggest support for things like the recent recommendations of the National Trust for Historic Preservation to the Bureau of Land Management. Some of the Trust?s recommendations are sensible, but many are mindless (?Nominate more places to the National Register?) and the Trust?s general tendency to want more money thrown at every preservation problem, while understandable, needs to be viewed critically.

Rejoin the international community
We?ve largely abrogated leadership in international environmental and cultural resource management, but we ought at least to be responsible followers. For starters (besides joining the team in trying to reduce global warming), the U.S. should become party to the UN Declaration of the Rights of Indigenous Peoples, the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, and (in principle if not in its particulars, some of which are silly) the UNESCO Convention on the Intangible Cultural Heritage.

Rethink police action as a cultural resource management tool
The assumption that police action can control traffic in antiquities, whether in the US or internationally, needs critical reconsideration. The thriving business done by antiquities dealers both licit and illicit despite ARPA and a variety of international conventions and agreements indicates that some other approach is in order. Personally, I think legalization with regulation is the way to go, but at the very least, a thorough, openminded review is needed of alternative ways to address the problem.

Respond to ongoing environmental change
We can?t stop the seas from rising, and their doing so is going to force large-scale displacement of people and facilities from coastlines and islands into the continental and high island interiors. These displacements are going to have serious impacts on natural and cultural resources. We need to undertake concrete programs NOW to assess these impacts and adopt means of mitigating them. At the same time we need to attend (to the extent possible) to the impacts of sea level rise itself ? the erosion of coastal cultural sites, the inundation of culturally important built and natural resources, and the effects of more frequent hurricanes and other severe weather events.

Resolve conflicts between historic preservation standards and alternative energy development
Can windfarms in the viewsheds of historic places be made acceptable to people who live in or use such places? Can solar panels be designed that are aesthetically pleasing replacements for traditional slate, shake, or tile roofs? Are there ways to extract geothermal energy and harness hydropower in culturally sensitive landscape with little or no damage? What sociocultural impacts are likely from the extensive production of biofuels, and what can be done about them? I certainly don?t know, but these are issues to which someone ought to be seriously attending.

Revisit repatriation
I?ve written elsewhere about the fundamental flaw in NAGPRA and similar laws ? the notion that people can own one another, so that a person?s remains can and should be the subjects of dispute over ownership. It seems, to judge from some of the discussions I?ve seen on the World Archaeological Congress listserv and elsewhere, that others are beginning to come to similar conclusions ? in short, that our policies ought to be based on respect for the dead, rather than on ownership. A full, open, no-holds-barred rethinking of the principles underlying NAGPRA and the policies that arise from it might have very fruitful results.

Those are my top-of-the-head ideas ? none of which, I hasten to say, I have any way to advance through political processes. Any other ideas, or reactions?
Tom King

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Gimme Gimme Gimme: the ACHP's January 16 Recommendations

I?m grateful to Al Tonetti of the ASC Group in Columbus, Ohio for alerting me to the Advisory Council on Historic Preservation?s (ACHP) new report (issued January 16, 2009, entitled ?Recommendations to Improve the Structure of the Federal Historic Preservation Program? and accessible at http://www.achp.gov/news090201.html. Although the ACHP issued a press release on the report, it has not made much of it ? possibly because it has the good sense to be embarrassed by it.

The report is not worth spending much time to review, but let?s just run through its recommendations. Most are the kind of thing you expect from any federal agency given (by itself in this case) the opportunity to call for an improvement in its own status and that of its political allies. Coming out at the time it did, though ? four days before the inauguration of a president whose election repudiated the then-incumbant who appointed the ACHP?s members, in the midst of the worst international economic disaster in memory, the report is remarkable for its naïve self-promotion.

Recommendation 1: Build up the power of the ACHP. The ACHP recommends that it be headed by a chairperson appointed by the President (as is now the case) with the advice and consent of the Senate (as is not now the case). It also recommends that the chairperson be made a full-time federal employee and that he or she serve on the Domestic Policy Council (DPC). In other words, the ACHP should be recognized as having an influence on national domestic policy equivalent to that exercised by such regular DPC members as the Secretary of Labor, the Secretary of Transportation, the administrator of the Environmental Protection Agency, and the chairperson of the Council of Economic Advisors.

It is not clear why ? after frittering away the last eight years patting itself on the back for giving ?preserve America? grants to worthy, noncontroversial projects ? the ACHP thinks it has anything useful to say about federal domestic policy. To the extent it provides a rationale for its recommendation, the ACHP stresses the importance of the Section 106 review process ? precisely the aspect of its authority and responsibility that it has most thoroughly neglected in recent years.

Recommendation 2: Create an Office of Preservation Policy and Procedure (OPPP) in the Office of the Secretary of the Interior. The OPPP would ?provide leadership and direction? to Interior agencies in carrying out their responsibilities under the National Historic Preservation Act (NHPA). There are some implications in the report that the OPPP would take over the interagency functions of the National Park Service (NPS) ? maintaining the National Register of Historic Places, overseeing project certification for tax benefits, and so on. There would be some benefit in such a reorganization; the ?external? programs have never been a happy fit within NPS. But the report doesn?t really go beyond implying such a change. Given NPS's predictable response to any assault on its turf, it is most likely that the OPPP would become simply another level of bureaucracy within the Interior Department.

Recommendation 3: Create an Associate Director for Cultural Resources within the Council on Environmental Quality (CEQ). The rationale for this proposal is to improve the ?profile? of historic preservation within the Executive Office of the President. This is doubtless a worthy goal from the standpoint of historic preservation, but it is hardly sufficient. Kite-flyers, all-terrain vehicle drivers, and gardeners would probably like to have their profiles enhanced, too, but this is hardly justification for the assignment of high-level CEQ officials to represent their interests. The ACHP does point out that the National Environmental Policy Act (NEPA) is designed to promote the protection of historic and cultural as well as natural resources, but it makes little or no case for the proposition either that CEQ currently gives such resources short shrift or that adding another official to that body would improve matters.

Recommendation 4: Beef up the Federal Preservation Officers. The ACHP points back to Executive Order 13287, the Bush administration's one legitimate effort to promote federal agency responsibility toward historic preservation, and says its provisions should be implemented. The vehicle it proposes for getting this done is for the ACHP's chairperson and the Office of Management and Budget to make it happen. Since the executive order, the chairperson, and OMB have been around for some years, one wonders why this recommendation has to be made; why has it not already been realized?

Recommendation 5: More money. It wouldn?t be a federal agency recommendation if it didn?t seek more money for agency programs, or for those of its allies. The ACHP report predictably recommends increased funding for the State Historic Preservation Officers (SHPOs) and Tribal Historic Preservation Officers (THPOs). Without getting into whether such increases might be justified (I wouldn?t assume them so without a hard review of how the THPOs and especially the SHPOs are spending the money they already have, under NPS?s generally misguided rules), it is hard to imagine that such increases are very likely under current economic circumstances.

Recommendation 6: More money and technical support to THPOs. The THPOs get a second bite of the ACHP?s proposed funding apple, though it?s not clear how the fiscal part of this recommendation differs from the THPO part of the preceding one. The THPOs certainly do need more money, but they also need relief from pointless NPS regulation and mindless federal agency pretenses at ?tribal consultation.? What they probably do not need is ?technical support,? if this means ? as it usually does ? support in meeting NPS administrative and technical requirements.

Recommendation 7: Strengthen Section 106. This one ? while not unjustified as far as it goes ? is truly mind-boggling, particularly in the way it is phrased: ?The Section 106 Function is Lagging, and Must be Strengthened.? Indeed, and why is it lagging? Does the lag have anything to do with the fact that the ACHP?s political and executive leadership has done everything in their power over the last two decades to minimize attention to Section 106? Does it reflect in any way the total lack of creative thought that the ACHP has given to Section 106 review in recent years? Does it have anything to do with the antagonism the ACHP leadership has shown those members of its staff who actually try to participate in review or encourage improved practice on the part of federal agencies and others? Not in the ACHP?s eyes, of course, so what should be done to ?strengthen? Section 106? Provide ?additional resources to support the ACHP?s crucial role.? Give us more money.

The ACHP goes on to propose that it ought to issue more guidance ? which perhaps is true (though one cannot be sanguine about what it might issue), but if it is, why doesn?t the ACHP simply issue some? In a way it does, via this report, proposing better coordination between Section 106 and NEPA and offering some useful if hardly revolutionary suggestions: get 106 review underway before issuing environmental assessments or draft environmental impact statements, finish it before such documents are finalized, and don?t confuse the vacuous ?public participation? typically provided for under NEPA with the consultation required under Section 106. It?s too bad the ACHP hasn?t done something over the last ten years to arrest the deterioration of the very consultation it now (by vague implication) extols.

This is a sad, predictable, silly report, which will doubtless get precisely the attention it deserves. I wonder how much of our tax money was spent producing it.

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What is the National Historic Preservation About, Part II: Archaeology and Section 106 in the '60s and Early '70s

Archaeology in the Federal Government

When the National Park Service was created in 1916, it soon found itself managing a variety of archaeological sites, so over the years it built up a degree of competence in the field, and employed a number of people -- some professionally credentialed, others not -- as archaeologists. Besides managing archaeological sites in parks, it exercised the Secretary of the Interior's general coordinative and standard-setting responsibilities under the Antiquities Act of 1906.

In the 1930s, some of the programs developed to pull the U.S. out of the Great Depression involved archaeology. Labor-intensive excavations of sites scheduled for annihilation behind Tennessee Valley Authority dams were mostly justified as ways to put people to work, but they gave birth to the vague notion that government should do something to salvage archaeological data (or artifacts) from reservoir projects.

After World War II, when the Corps of Engineers was authorized to begin damming up the Missouri River, archaeologists at NPS and the Smithsonian launched the Missouri River Basin Project, doing salvage archaeology in Corps project areas with the (probably grudging) acquiescence of the Corps. The program soon became too much like the real world for the Smithsonian, and it backed out, leaving the field to NPS. In 1960, NPS was successful in getting passage of the Reservoir Salvage Act, authorizing annual appropriations to NPS to support its archaeological work on Corps projects.

NPS archaeology had two foci of attention: managing sites in parks whose missions involved interpretation of such sites, and salvage in Corps reservoirs. An archaeologist (for many years J.O. Brew) also sat on the advisory board that vetted potential National Historic Landmarks, but that was about the closest archaeologists came to the historic preservation programs that NPS was cooking up with the National Trust during the Kennedy-Johnson years.

Outside government, there was growing concern among archaeologists about site-destruction caused by federal government programs that were NOT under Corps of Engineer jurisdiction. That is, there was growing concern about such destruction going on without the conduct of salvage excavations. The Federal Highway Administration allowed state highway departments to fund salvage excavations (but not analyze the results), but most other agencies had neither the responsibility nor, they argued, the legal authority to pay the slightest attention to archaeology. None of the agency archaeological programs we know and love today -- in BLM, the Forest Service, the Corps -- existed.

Archaeologists and the Implementation of NHPA

In the late 1960s Archaeologists ? including me, but Bob McGimsey of Arkansas was the major mover and shaker, along with his comrade-in-arms Hester Davis, Carl Chapman of Missouri, and Ray Thompson of Arizona ? began to agitate for an expansion of the Reservoir Salvage Act to address all kinds of federal construction projects, and to authorize/direct the causative agencies themselves to fund salvage of the stuff they were destroying. Most of us were blissfully unaware of the parallel movement underway among historic preservationists, which had by then led to the enactment of NHPA, whose implementation NPS was putting into train.

A colleague who has written in response to my ACRA-L posting recalls reading the minutes of a Society for American Archaeology (SAA) meeting in 1967 or 68, where NPS representatives made a pitch for archaeological participation in the development of its programs under the newly minted NHPA. The minutes suggest, he says, that the members listened politely and said thanks, but expressed little interest. My own pertinent recollection is from an SAA meeting in about 1968, where there was a session dealing with NHPA and the great threat it posed to the integrity of archaeological site records. The perception was that the historic preservation people had gone sneaking around behind our backs and gotten Congress to create this ?national register? thing, and these squirrely state liaison officers (later called state historic preservation officers), who would capture all the site records maintained by academic institutions and open them up to the pothunters.

In a nutshell, as the 70s got underway, there was very, very little engagement between the archaeological community and the developing NHPA programs in NPS. This was to change rather dramatically, however, if messily.

Section 106

Let?s leave archaeology for a bit and look at how practice under Section 106 developed after NHPA?s enactment in 1966. Recall that my Amazon critic (quoted in the first segment of this discussion) accused me of having written ?a lay person's manual on ?how to use Section 106 to derail any development you happen to disagree with?? ? implying that such ?derailment? is not a proper use of Section 106, or perhaps that the interests of ?lay persons? should not be given countenance. I beg to differ -- not only based on my own preferences, but on the history of the Section 106 process.

Section 106, as enacted in 1966, said that agencies were to ?take into account? the effects of their actions on places included in the National Register, and give the Advisory Council on Historic Preservation (ACHP) a ?reasonable opportunity to comment? on such actions. The newly-minted ACHP staff ? essentially made up of executive director Robert Garvey and NPS historians Glennie Murray, Lou Wall, and Ben Levy ? were confronted with the problem of figuring out what ?taking into account? meant, and persuading agencies to do it.

One of the first cases to come to the ACHP under Section 106 was that of the old U.S. Mint in San Francisco, a National Historic Landmark (and therefore ?grandfathered? into the National Register) which the General Services Administration (GSA) wished to expunge from the federal estate. The Mint is a fine old building, and had lots of defenders in San Francisco. According to Garvey ? as I recall a conversation we had exploring the development of 106 practice ? it was in the context of the Mint case that he came up with the idea of consultation with concerned parties as a core element in an agency?s ?taking into account.? The late Fred Rath, who as the National Trust?s representative also took part in the case, once assured me that it was he, not Garvey, who came up with the idea. Maybe so, but my slight experience with Rath, who I found to be rather elitist, and my intensive acquaintance with the very populist Garvey, makes me lean toward the latter as the one who experienced the epiphany.

A pretty obvious epiphany, you may say. You got a problem among people, you sit ?em down and talk about it, and try to reach agreement. Utterly obvious, certainly, but to this day agencies resist the idea of such negotiations, particularly with ?lay people.? And the Mint case took place long before the bookstores started filling up with books about conflict resolution like Getting to Yes and Getting Past No. But nonetheless, a reliance on consultation was a pretty obvious, down-home kind of idea, which is one reason I think it was likely Bob Garvey?s idea; he was that kind of guy.

The Mint was saved, and the idea was born that consultation should be an important part of an agency?s account-taking.

The ACHP at this point did not have ?rulemaking authority? ? it couldn?t issue binding regulations. But it could issue guidance, and it was in this form that ?the Section 106 process? first saw the light of day. By now it was 1972, and the ACHP had added an important weapon to its arsenal in the person of Ken Tapman, a Department of the Interior solicitor who became the ACHP?s General Counsel. Ken set about making the ACHP?s guidelines just as regulatory as he could possibly make them without the actual authority to do so; they were issued in the Federal Register, with a Code of Federal Regulations designator ? 36 CFR 800 ? even though they were technically not binding on anyone. There is another whole story to be told about how the regs became regs, but suffice to say that agencies began to get the idea ? through the ACHP?s jawboning and through litigation ? that ?taking into account? the effects of their actions on historic properties meant consulting with concerned parties and trying to reach binding agreements. An agreement duly executed per the procedures would demonstrate both that the agency had taken effects into account and that it had given the ACHP its opportunity to comment; only in the absence of an agreement would the Council itself ? a rather unwieldy body of presidential appointees, agency heads, and others named in the statute ? actually ?comment.?

It was at this point, incidentally, that I began to get involved in Section 106 work, in concert with a couple of California Indian tribes. As an archaeologist working for the Agua Caliente Cahuilla Tribe in Palm Springs, trying to derail a Corps of Engineers dam in Tahquitz Canyon, from which the tribe?s ancestors emerged from a lower world at the beginning of time, I was astounded when Garvey expressed a lot more interest in the Tribe?s oral traditions and beliefs than in my archaeological data. As a co-plaintiff with Pomo groups in Warm Springs Dam Task Force v. Gribble (378 F.Supp. 240 (N.D.Cal.1974)), I happily conspired with Tapman to use the ACHP?s procedures in an attempt to derail a dam in the Russian River basin, helping to cause the Corps to sit up and take notice of the procedures. We won at Tahquitz Canyon, lost at Warm Springs, but in losing prevailed on the Corps to pay a great deal more attention than it had to both archaeology and tribal concerns like the preservation of traditional plant resources.

Something else happened in 1972 that greatly influenced the development of Section 106 practice and the participation by archaeologists in that practice. I?ll turn to that in the next segment. My point, for the moment, is simply that consultation with concerned parties has been at the core of the Section 106 process from its beginning, and so have citizen efforts to ?derail? projects they ?happen to disagree with? -- like demolishing the San Francisco Mint and damming up Tahquitz Canyon. It seems to me that the very purpose of Section 106 review is to give citizens the right to say ?wait a minute? to federal agencies whose proposed actions may damage something they, the citizens, care about. Not that the derailment need be successful, but the ability to threaten derailment, and to actually derail if one has a strong enough crowbar, is necessary if federal agencies are to be kept from running roughshod over citizens? cultural concerns.

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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.

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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

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