CHAPTER 16 POTSHERDS AND PETROGLYPHS: EFFECTS OF CULTURAL RESOURCES MANAGEMENT ON PUBLIC LANDS DEVELOPMENT

• Jurisdiction: United States

Land and Permitting II
(Jan 1996)
CHAPTER 16
POTSHERDS AND PETROGLYPHS: EFFECTS OF CULTURAL RESOURCES MANAGEMENT ON PUBLIC LANDS DEVELOPMENT
Walter E. Stern
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Albuquerque, New Mexico

TABLE OF CONTENTS

SYNOPSIS
Page

§ 16.01 INTRODUCTION, HISTORICAL PERSPECTIVE, AND SCOPE

§ 16.02 THE NATIONAL HISTORIC PRESERVATION ACT MANDATES PROCEDURAL PROTECTION FOR HISTORIC AND CULTURAL RESOURCE PROPERTIES

[1] Operation and Scope of the NHPA

[2] "Historic Properties" as Defined in the NHPA

[3] NHPA Theoretically Imposes Only Procedural Obligations

[4] The Procedural Obligations Apply to All "Undertakings" as the Term is Defined in the NHPA

[5] NHPA and NEPA Compliance Obligations Compared

[6] Section 106 Procedures for Cultural Resources Management Compliance for an NHPA "Undertaking."

[a] Literature search and initial consultation

[b] Inventory requirements and eligibility determinations

[c] Determinations of an undertaking's "effect" and "adverse effect" on properties

[d] The "adverse effect" consultation process

[e] Special provisions regarding Section 106 clearance procedures

[i] Properties discovered following initiation of undertaking

[ii] Programmatic Agreements between states and federal agencies

[f] Planning for NHPA compliance

[7] NHPA and Federal Regulation of Oil and Gas Operations and Rights-of-Way

[a] Oil and gas leasing

[b] Rights-of-way grants

[8] Developers are Liable for NHPA Compliance Costs

[9] Judicial Review of Agency NHPA Compliance and Decision-Making

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[10] The Interrelationship Between NHPA Compliance Obligations and Federal Land Use Planning Statutory Requirements

[a] The Federal Land Policy and Management Act

[b] The National Forest Management Act

§ 16.03 THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT: SPECIFIC MANAGEMENT PRESCRIPTIONS FOR NATIVE AMERICAN BURIAL REMAINS AND CULTURAL OBJECTS

[1] The Reach of NAGPRA

[2] Cultural Items Defined

[a] "Human remains"

[b] "Funerary objects"

[c] "Sacred objects"

[d] "Objects of cultural patrimony"

[3] Native American Ownership or Control of Cultural Items

[4] Procedures Governing Inadvertent Discovery of Cultural Items

[5] Provisions Applicable on Tribal Lands

[6] Excavation and Removal of Cultural Items

[7] Planning for NAGPRA Compliance

§ 16.04 THE HISTORIC AND ARCHAEOLOGICAL DATA PROTECTION ACT OF 1974 AND RESERVOIR SALVAGE ACT OF 1960

§ 16.05 THE HISTORIC SITES ACT OF 1935

§ 16.06 THE ANTIQUITIES ACT OF 1906 AND THE ARCHAEOLOGICAL RESOURCES PROTECTION ACT OF 1979

§ 16.07 THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT AND THE FREE EXERCISE CLAUSE: PUBLIC LANDS MANAGEMENT AND NATIVE AMERICAN RELIGION

[1] AIRFA Rights and Duties Under Lyng

[2] Consideration of Impacts on Native American Religion Under NEPA

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[3] Free Exercise of Traditional Native American Religions

[4] Planning to Accommodate Native American Religious Uses

§ 16.08 CONCLUSION

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§ 16.01 INTRODUCTION, HISTORICAL PERSPECTIVE, AND SCOPE.

Federal cultural and historic resources management and preservation policies play an important role in the planning processes associated with public lands development.¹ This article will examine the role federal cultural resources management statutes play in the planning and implementation of resources development projects on the public lands.² While the terms "cultural resource" and "historic resource" are defined in various statutes and regulations,³ views differ as to whether a particular site or object is, or should be, subject to the protection of a particular management scheme. The late Justice Potter Stewart's views about obscenity may be equally applicable to the identification of cultural resources: "I could never succeed in intelligibly [defining pornography]. But I know it when I see it...."⁴

The ultimate identification of a resource worthy of protection varies substantially from person to person, and from interest group to interest group. To some, the stray potsherd or obsidian chip may represent insights into a native civilization, necessitating preservation or at least consideration under historic preservation laws to permit study of the interrelationship between the object and other objects or sites in the vicinity.⁵ To others, the suggestion that a few flakes of chert or a single arrowhead trigger cultural resource management protection is anathema.⁶ Some may argue that historic mine workings are cultural resources worthy of

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protection,⁷ while others would contend the workings are a scar that should be reclaimed. The broad variance in views presents management difficulties, but counsels federal agencies and developers to consider seriously the cultural resource issues that will arise inevitably in a project, and to work in close consultation with all interested persons, including Indian tribes, and other entities involved in the development planning process.

This article examines the key statutes and regulations which impose cultural resources management requirements on public land development projects.⁸ Cultural resources management first emerged as a public lands issue with passage of the Antiquities Act in 1906.⁹ Since then, Congress enacted a number of statutes designed to increase the protection afforded historic and cultural resources, culminating in the enactment, and subsequent amendment, of the National Historic Preservation Act (NHPA).¹⁰

This article discusses the National Historic Preservation Act, the Native American Graves Protection and Repatriation Act, the First Amendment to the Constitution and related statutes concerning Native American religious freedom, and the other key statutory and regulatory schemes affecting or implementing cultural resources management schemes on the public lands.¹¹ Through this discussion this article seeks to provide a practical analysis of the planning requirements and cultural resources management obligations imposed on federal agencies and project proponents.

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§ 16.02 THE NATIONAL HISTORIC PRESERVATION ACT MANDATES PROCEDURAL PROTECTION FOR HISTORIC AND CULTURAL RESOURCE PROPERTIES.

[1] Operation and Scope of the NHPA.

"The purpose of the National Historic Preservation Act (NHPA) is the preservation of historic resources."¹² Enacted in 1966, and amended significantly in 1980 to codify additional preservation policies reflected in Executive Order No. 11593,¹³ the NHPA was implemented "to encourage the preservation and protection of America's historic and cultural resources."¹⁴ The NHPA was amended again in 1992 to provide, among other things, enhanced opportunities for Indian tribes to manage federal cultural resources programs on Indian lands, and to participate more actively during the planning process for projects on public lands. While preceded by several federal cultural and historic preservation schemes,¹⁵ the NHPA represents the cornerstone of federal historic and cultural preservation policy. "Congress, in enacting NHPA, took the key step of protecting not only 'nationally significant' properties but also properties of 'historical, architectural, or cultural significance at the community, State or regional level...against the force of the wrecking ball."¹⁶

To achieve the basic goal of historic and cultural resource preservation, Congress identified three principal purposes for the NHPA: (1) strengthen and broaden the process of inventorying historic and cultural sites, and establish a National Register of sites significant in state, local, regional, and national history, culture, architecture, or archaeology; (2) enhance and encourage national, state, local, and tribal interest in historic preservation; and (3) establish the Advisory Council on Historic Preservation (ACHP) to oversee matters relating to preservation of historic properties, to coordinate preservation efforts, and to promulgate regulations to outline

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federal, state, and now tribal obligations regarding consideration of sites that may be affected by federal, or federally-controlled, activities.¹⁷

For activities on the public lands, sections 106 and 110 are the two most significant parts of the NHPA.¹⁸ Section 106 and its implementing regulations¹⁹ describe the step-by-step procedural obligations imposed on federal agencies prior to permitting any on-the-ground activity — for example, an Application for Permit to Drill (APD) on a federal oil and gas lease or a mine plan — that may affect cultural or historic properties.

Section 110 represents the codification of portions of President Nixon's Executive Order No. 11593, and imposes the following obligations on federal agencies:

(1) The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency.²⁰

(2) Each agency shall undertake, consistent with the preservation of such properties and the mission of the agency..., any preservation, as may be necessary to carry out this section.²¹

(3) [Each] Federal agency shall establish a program to locate, inventory, and nominate to the Secretary [of the Interior] all properties under the agency's ownership or control..., that appear to qualify for inclusion on the National Register....²²

(4) Consistent with the agency's missions and mandates, all Federal agencies shall carry out agency programs and

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projects (including those under which any Federal assistance is provided or any Federal license, permit, or other approval is required) in accordance with the purposes of [the Act]....²³

Under the 1992 NHPA amendments, these federal agency preservation-related activities are to be "carried out in consultation with other Federal, State, and local agencies, [and] Indian tribes...."²⁴ The key state official involved in this consultation effort is the State Historic Preservation Officer (SHPO).²⁵

The 1992 NHPA amendments, among other...