Fixing the Environmental Review Process and Section 106

In the United States, several people have had an unusually large impact on the practice of historic preservation. James Marston Fitch created the first historic preservation degree program; Charles Peterson started the Historic American Buildings Survey (HABS); W. Brown Morton, III was mostly responsible for writing the Secretary of the Interior’s Standards; and Pat Parker and Thomas King wrote National Register Bulletin 38, which addresses “traditional cultural properties” (TCPs). TCPs are defined as places that are “associat[ed] with cultural practices or beliefs of a living community that are rooted in that community’s history, and are important in maintaining the continuing cultural identity of the community.” Unfortunately, Pat Parker is no longer with us today, but according to a conversation I had recently with King, she contributed equally to the writing of the bulletin, emphasizing the need “to pay real attention to living cultures.”

Of this notable group, King’s work is the most controversial, perhaps because it is the most recent; unlike the others, he is still very much active in publishing on topics related to historic preservation and cultural resource management (CRM). I place his work squarely in the field of critical heritage studies, although I doubt if he would do so himself. Unlike other people who take a critical approach to orthodox heritage conservation practice, King is first and foremost a practitioner, not an academic. His perspective gives an extra level of salience to his claims because they are far from theoretical — he has direct experience in the conservation field and its applied limitations unlike many researchers in critical heritage studies.

King is widely known for his textbooks on CRM practice used in historic preservation and archaeology programs, including Cultural Resource Laws and Practice (Altamira Press, 2008). While some people may find King’s down-to-earth writing style in these books, full of an honest account of the issues he has encountered in practice, to be true to his archaeological background in its “earthy” quality, it is his other books that have engendered much more mixed responses.

In Places That Count: Traditional Cultural Properties in Cultural Resource Management (Altamira Press, 2003), King explains that historic preservation practitioners are entirely unprepared to understand the ways in which people value and feel about historic places, largely because of the dominance of National Register of Historic Places (NR) criteria and its sole reliance on art/historical values. He then suggests that because the NR is so poorly suited to assessing the everyday values of people that the worst thing that practitioners can do is actually prepare an NR for a traditional cultural property. King’s reasoning is that it is better to leave a property in a state of eligibility than to actually write and submit an NR, which does not sit well with state historic preservation offices (SHPOs) and the National Park Service (NPS) as it is their primary tool for legitimizing significance.

King’s critique against orthodox historic preservation practice is at its most extreme in Our Unprotected Heritage: Whitewashing the Destruction of Our Cultural and Natural Resources (Left Coast Press, 2009). For instance, he claims that SHPOs care far more about regulating how buildings are described and photos taken than they do about “finding and consulting local people, finding out what’s important to them, looking at the landscape in general, or considering the social character of neighborhoods” (p. 104). He also claims that Section 106, the federal law that reviews impacts to historic resources, is inherently corrupt because CRM firms are paid very well by developers to “never find anything” (p. 36); theoretically, the “client” for these projects is the American people, but professionals working in these firms know who their real client is: the developer that pays their fees. Moreover, everyday people who are concerned about protecting their heritage don’t have the kind of money that developers have to pay CRM professionals to prepare reports representing their side of the story; in essence, King claims that money buys expert rule while ensuring that community values are not adequately considered.

I highly recommend reading these last two books; for those of you who are familiar with Laurajane Smith (2006) and Rodney Harrison (2013), you will recognize many similarities with King’s critique of conservation practice “sidelining” the values of everyday people and privileging expert rule. King’s claims are not alone, especially in the CRM/archaeology field. Mills, Altaha, Welch, and Ferguson (2008, p. 46) also claim that the consultations required by federal law for environmental review of the of federal undertakings on historic resources does “not involve real listening or significant project modification.” In particular, this passage from King’s 2006 presentation at the meeting of the Archaeological and Historic Preservation in Transportation (ADC50) Committee is particularly useful because it clearly resonates with critical heritage studies’ emphasis on the problems of expert rule:

Back at the beginning, Congress assigned leadership in implementing the law to the National Park Service, and the Park Service assigned it to a collection of historians, architectural historians, and archaeologists. A natural, probably unavoidable mistake, but a mistake nonetheless, because over the years they and their successors, raised up at the knees of their progenitors, have translated “significance” into “significance as judged by professionals.” Never mind what the locals think; how does the place stack up with an archaeologist or historian – based on whatever esoteric, pseudo-academic criteria make the SHPO and National Register staff happy? And to the extent arguments about eligibility are allowed – the Keeper’s decision is, after all, unappealable – they must be “professional” arguments, based on the picking of academic nits.

But one argument King offers that I think it particularly salient is in regard to consultation with communities. In the United Sates, 36 CFR Part 800, which implements Section 106 of the National Historic Preservation Act of 1966 (NHPA), is very clear about requiring “consultation” with parties that are affected by a federal undertaking that has the potential to impact historic resources. Unfortunately, many people who work in historic preservation think that holding a public meeting satisfies the requirement of consulting with affected parties. Consultation, as King is careful to explain, requires a thorough identification of stakeholders and actively listening to and acting on their concerns. It involves the negotiation of an outcome between all affected parties in an environment in which conflict resolution and management is central. Consulting means that experts must work with people in a collaborative dialog. And, yes, this takes time — in some cases a lot of time — which explains why there is such a strong incentive for federal agencies and CRM firms to just hold a public meeting, proclaim their “findings”, rubber stamp the outcome, and then proceed with the development project.

Recently, I came across an interview of Thomas King by the Archaeology Channel, which I would recommend because it neatly encapsulates the major themes in his work. In this interview, King says that one of the most important skills a historic preservation professional can have is the ability to effectively engage with the public in a process of consultation that is more than just “sitting down and talking”; consultation requires the ability to work with the public to achieve a consensus in a dialog and to have an aptitude for conflict resolution. King claims that in Section 106, “consultation” too often becomes through a process of “push[ing] away people’s concerns”.  (If you’ve read Laurajane Smith’s [2006] Uses of Heritage, this is an example of what happens in the “authorized heritage discourse”.) Rather than engaging in a dialog with concerned people, CRM professionals often draft an agreement first and then get a rubber stamp from the government organizations sanctioning the process. “Consultation” is thereby transformed from dialog into “ramming something down people’s throats”. Instead of being an activity that is supposed to protect the historic environment for the public benefit, environmental review is only a series of “hoops to jump through”.

Surely, as King describes, the fact that most historic preservation professionals who work with the public typically have no official training in consultation practices and conflict resolution significantly contributes to some of these problems. This result should not be surprising considering that, since their genesis, historic preservation programs in the United States have only focused on the following three core areas:

1. The history of the historic environment. This is the positivistic, factual, objective history of buildings, structures, places, and landscapes that seeks a singular narrative of meaning (Green 1998).
2. The history, theory and philosophy of orthodox historic preservation. As Muñoz Viñas (2005, p. 43) describes, the orthodox theory and philosophy of built heritage conservation “lacks a logical basis [because it] is defined as it is performed, and its use and repetition is what allows us to know and understand it.” In other words, orthodox conservation theory is rational rather than empirical in its basis. It shares this characteristic with modern-era planning and architectural design, which sprang forth from the heads of a few men.
3. Documentation and recording techniques, which consist of measured drawings, sketches, photos, and other methods that document the physical reality of buildings, structures, places, and landscapes.

What is largely absent from most historic preservation programs is a focus on the meanings and values of civil experts and the use of social science and consultation methods to understand these values. Many historic preservation degree programs do offer students the ability to engage with communities in planning processes, but along with the social sciences, the following curricular areas are simply absent from historic preservation degree programs:

• Understanding group dynamics
• Mediation techniques
• Conflict resolution and management
• Stakeholder assessment
• Meeting and process facilitation

These are the skills that King advocates for more professionals to have. Unfortunately, this situation will not change anytime soon unless we see historic preservation/heritage conservation degree programs as a kind of applied social science, where people’s values, perceptions, and meanings become as central to practice as physical fabric.

Addressing the problems that King discusses involves more than just education. Ultimately he wants to see the law change as well, as he mentioned in his interview:

We need to take all the laws and regulations and back up and say, OK, what was Congress tying to do when it enacted this. What is the purpose of this whole exercise? And what’s the most efficient, effective, way to achieve that purpose? And then ideally Congress ought to revoke the existing laws and replace them with a comprehensive, simple, straightforward law that says, federal agencies shall consider the effects of their actions on all aspects of the human environment and they’ll do it in the following ways and embed consultation — the best parts of Section 106 reviews and review under all the other [e.g., NEPA] laws — in a single, overarching statute.

King goes on to explain that he does not think the scenario he describes is likely, however. I would add that the problem with Section 106 review is not necessarily the vague statute itself (i.e., from the NHPA), but 36 CFR Part 800 (the implementing regulations), which was not authored by Congress, but rather by federal employees. Congress could simply say throw away 36 CFR Part 800 because it’s not what Section 106 intended: the administrative law is too complicated, has built-in conflicts of interest, and fails in its requirement that federal agencies “take into account the effect of the undertaking on any historic property.”

Changing historic preservation practice so that community consultation is more than just lip service won’t happen by waiting for the Advisory Council on Historic Preservation, the National Park Service, or SHPOs to change administrative laws. As I see it, we have two options: 1) the political process and 2) legal recourse.

Overwhelming public pressure in an environment of wholesale destruction of historic places led to the passage of the National Historic Preservation Act in 1966. Something similar could happen today to change practice so that the values of civil and conventional experts are better balanced. If enough members of the public understand the inherent problems in environment review, Congress could be pressured to act. Clearly, historic preservation advocacy organizations have a role to play here in terms of education about the issues and raising public sentiment.

There is also the potential for legal recourse. The Federal Administrative Procedure Act allows for judicial review in cases where an administrative law is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” Section 106 of the National Historic Preservation Act of 1966 is a single paragraph and, as King argues, doesn’t need to change. Instead, it is the administrative law, 36 CFR Part 800, that took one paragraph and created several hundred pages of regulations that needs to change. Under the Administrative Procedure Act, a court can be asked if 36 CFR Part 800 is an “arbitrary and capricious” regulation that “abuses discretion” and is “otherwise not in accordance with” the intent of Section 106 of the NHPA. A search through the LexisNexis law database seems to indicate that no court has yet heard a case concerning whether or not 36 CFR Part 800 is compliant with the Administrative Procedures Act.

The question remains if it would be a productive enterprise to address the problems King has identified in environmental review and specifically Section 106. Engaging politicians and the possibility of asking for judicial review would require the coordinated efforts of many people and organizations. If a coalition of preservation advocacy organizations from around the country were to work together on educating the public on these issues, lobbying Congress, and investigating a judicial review of 36 CFR Part 800, then just maybe, we can make the system more responsive to the public and more in accordance with the intent of the NHPA.

Prior to making this post, I ran a draft by Thomas King for his feedback, which is below:

I should also say that I don’t think the public pressure on Congress that led to enactment of the NHPA back in 1966 was exactly overwhelming. There WAS very substantial pressure to do something about protecting the environment in general, and about caring for the special cultural character of neighborhoods and landscapes; this got translated — substantially through the efforts of First Lady Lady Bird Johnson and a few clever political manipulators (including those at the National Trust and NPS) — into a host of related initiatives that produced the NHPA, the NEPA, and other protection, enhancement, and “look before you leap” laws and programs.

Which, sadly, have never gotten very well organized or integrated, or developed a very mindful overall constituency. Instead we’ve grown several disparate, only vaguely interacting bureaucracies and industries, poorly understood by the public and generating little support there. There’s the historic preservation bureaucracy, the NEPA bureaucracy, the historic building rehabilitation industry, the “cultural resource management” (sic: applied archaeology) industry, the environmental impact assessment (and whitewashing) industry — each employing its own methods and terminologies, collectively and disparately making it virtually impossible for real people in real communities with real resource management issues even to figure out what’s going on, let alone participate effectively in the systems the laws have spawned. Or to envision and mobilize for needed improvements, or even to see that their interests demand such improvements.

I think that if any kind of groundswell is going to be created for productive change in the historic preservation system, we need to get outside historic preservation and collaborate with like-minded (or at least overlapping) interests in other areas of endeavor — particularly those concerned with the human environment writ large (and small — i.e. at the local/community/tribal level), and with those concerned about the human condition in general (and in communities). Nothing is going to be gained by spending this 50th anniversary year contemplating the various navels perceived as “issues” in historic preservation (e.g. the “fifty year rule,” or “do we need a National Register Criterion E,” or “how to apply the Secretary’s Standards to really ugly buildings,” or “how to build diversity into the National Historic Landmarks system”). We — and your students, you in academia — need to be bigger, wiser, and a lot more broadly interactive than that.

As for litigation as an option — maybe, but one would have to be very careful. Leaving things to lawyers and judges — and to bureaucrats (with whom, I hasten to add, I have great sympathy) to translate their direction — is a very chancy business.

Again, thanks much for your thoughtful post. I hope it stimulates some serious discussion.

— Thomas King

Cited references:

Harrison, R. (2013). Heritage: Critical approaches. New York: Routledge.

Green, H. L. (1998). The social construction of historical significance. In M. A. Tomlan (Ed.), Preservation of what, for whom? A critical look at historical significance (pp. 85-94). Ithaca, NY: National Council for Preservation Education.

King, T. F. (2003). Places that count: Traditional cultural properties in cultural resource management. Walnut Creek, CA: Altamira Press. Retrieved from Library of Congress.

King, T. F. (2008). Cultural resource laws and practice. Lanham, MD: Altamira Press.

King, T. F. (2009). Our unprotected heritage: Whitewashing the destruction of our cultural and natural resources. Walnut Creek, CA: Left Coast Press.

Mills, Barbara J., Mark Altaha, John R. Welch, and T.J. Ferguson. 2008. Field schools without trowels: Teaching archaeological ethics and heritage preservation in a collaborative context. In Stephen W. Silliman (ed), Collaborating at the trowel’s edge: Teaching and learning in indigenous archaeology, pp. 26-49.  Tucson: U of AZ Press.

Smith, L. (2006). Uses of heritage. London and New York: Routledge.