NEPA AND NHPA EVALUATION OF CULTURAL RESOURCES AND TRIBAL VALUES AGAINST A BACKDROP OF OIL AND GAS EXPLOITATION

• Jurisdiction: United States

National Environmental Policy Act (Nov 2017)
CHAPTER 13B
NEPA AND NHPA EVALUATION OF CULTURAL RESOURCES AND TRIBAL VALUES AGAINST A BACKDROP OF OIL AND GAS EXPLOITATION
Kyle Tisdel ¹
Western Environmental Law Center
Taos, NM

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KYLE TISDEL is a staff attorney and the Climate & Energy Program director at Western Environmental Law Center, working from WELC's Southwest office in Taos, New Mexico. Kyle represents non-profit organizations, tribal groups, and communities in protecting the West's land, air, water, climate, and cultural resources, helping to ensure the resilience of our public lands and communities. Kyle frequently engages the U.S. Bureau of Land Management, the U.S. Forest Service, and other federal agencies in administrative decision making regarding the management, leasing, and permitting of fossil fuel resources on our public lands. Public interest clients seek Kyle's representation in matters under the National Environmental Policy Act, the National Historic Preservation Act, and the Federal Land Policy and Management Act, as well as other federal statutes in federal court. Kyle received a B. A. in International relations from Michigan State University and earned his law degree from Vermont Law School, where he was editor-in-chief of the Vermont Journal of Environmental Law. WELC uses the power of the law to defend and protect the American West's treasured landscapes, iconic wildlife, and rural communities.

I. Introduction:

Through the Federal Land Policy and Management Act ("FLPMA") Congress prescribed national policy for the administration of our public lands, including that they be managed on the basis of multiple-use and sustained yield, and in a manner that will preserve and protect the quality of a broad array of resource values for present and future generations.² The Bureau of Land Management ("BLM") is tasked with administering many of these public lands--including management of the Federal government's 700 million acre mineral estate.

The manner by which agencies must realize the "multiple-use" management directive is largely through the fulfillment of procedural obligations prescribed by the National Environmental Protection Act of 1969 ("NEPA")³ and the National Historic Preservation Act of 1966 ("NHPA").⁴ However, equally important to the procedural frameworks these statutes impose, NEPA and NHPA should be considered for their aspirational goals and the way in which they are meant to inform the Federal government's responsibility for the preservation and protection the natural environment, cultural resources, and tribal values; particularly in instances of conflict with other, incompatible uses, such as fossil fuel development.

The San Juan Basin of northwestern New Mexico is one of America's most important landscapes because of its unique environmental and cultural setting. It is home to ancestral and contemporary Native American tribes, including Navajo, or Diné (translated as "the people"), and Jicarilla Apache, which rely on the land to support their livelihoods and for traditional cultural and ceremonial practices. Chaco Culture National Historical Park ("Chaco Park"), a United Nations World Heritage Site, is at the heart of the Greater Chaco landscape, linking outlying ancestral and contemporary communities, ceremonial sites, and significant geologic features via ancient ceremonial roads still visible across the landscape. The land contains a rich beauty of meadows, mesas, canyons, and peaks, sustaining a diversity of plant and animal species.

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A different type of wealth exists below the surface, where an abundance of coal, oil and gas have made the San Juan Basin one of the country's richest sources of mineral exploitation. The region contains two mine-to-mouth coal fired power plants--one of which, Navajo Mine and Four Corners Power Plant, exists within the Navajo Nation--and a legacy of over 40,000 oil and gas wells. The San Juan Basin is the fourth largest gas field in the country, with estimated production in 2013 of 1,024,962 million cubic feet--over 6% of all U.S. production.⁵

The tension that exists between the San Juan Basin's environmental and cultural treasures, and its mineral wealth, make it a compelling example for how BLM must weigh these competing uses. As recognized by the Tenth Circuit: "the principle of multiple use does not require BLM to prioritize development over other uses. As we have reasoned in the past '[i]f all the competing demands reflected in FLPMA were focused on one particular piece of public land, in many instances only one set of demands could be satisfied. A parcel of land cannot be preserved in its natural character and mined.'"⁶

II. NEPA and the NHPA: Cornerstones of Environmental and Historic Review

A. Background, Procedural Obligations and Congressional Intent

NEPA and NHPA, together with their implementing regulations, comprise the foundation of Federal review procedures and "ensure that our natural, cultural, and historic environment is given consideration in Federal project planning."⁷ Although NEPA and NHPA contain independent statutory obligations, both expressly recognize the concepts of "coordination" and "integration",⁸ working conjointly to impose procedural obligations on Federal agencies to "stop, look, and listen" before undertaking actions impacting the environment or historic properties.⁹ What NEPA does for our natural environment, Section 106 of NHPA does for sites of historical importance.¹⁰

1. The National Environmental Policy Act

NEPA is our "basic national charter for the protection of the environment"¹¹ with a

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purpose, in part, "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man."¹² NEPA was enacted with the recognition that "each person should enjoy a healthful environment," to ensure that the Federal government uses all practicable means to "assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings," and to "attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences," among other policies.¹³

NEPA has twin aims: "First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process."¹⁴ Regulations direct that agencies to the fullest extent possible "encourage and facilitate public involvement" in the NEPA process.¹⁵ This is accomplished through NEPA's "action-forcing procedures . . . requir[ing] that agencies take a hard look at environmental consequences."¹⁶ The purpose of the "hard look" requirement is to ensure that the "agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious."¹⁷

NEPA also requires the agency to "study, develop, and describe alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources."¹⁸ Alternatives are the "heart" of the NEPA process, ensuring that agencies "sharply defin[e] the issues and provid[e] a clear basis for choice among options by the decisionmaker and the public."¹⁹

As NEPA regulations explain, "[u]ltimately, of course, it is not better documents but better decisions that count. NEPA's purpose is not to generate paperwork--even excellent paperwork--but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment."²⁰

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2. The National Historic Preservation Act

NHPA affirms a broad policy of supporting and encouraging preservation of prehistoric and historic properties for present and future generations, and directing Federal agencies to assume responsibility for considering such resources during project planning.²¹ The core of NHPA is Section 106, which requires Federal agencies to identify and to consider historic properties that may be impacted by any Federal "undertaking" and, if so, whether such undertaking has "the potential to cause effects on historic properties."²²

If the potential for adverse effects exists, the agency is required to attempt to resolve such impacts through consultation, which involves a comprehensive assessment of effects on historic properties and of ways to "avoid, minimize or mitigate the adverse effects," including by proposing alternatives.²³ Consultation provides for the participation of a large number of interested parties, including the state historic preservation office ("SHPO"), Indian tribes, local government representatives, interested organizations, and the public.²⁴ Consultation must be more than a "mere exchange of views."²⁵ Instead, it is a "process of seeking, discussing, and considering the views of others, and, where feasible, seeking agreement with them on how historic properties should be identified, considered, and managed."²⁶

NHPA regulations provide that an agency "shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey."²⁷ The BLM has promulgated Manual 8110, which sets out three types of surveys that may be used to identify historic and cultural resources, including a Class I survey and inventory of existing information,

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a Class II survey relying on statistically based sampling of an area, and a Class III intensive field survey requiring detailed evaluation of the entire target area.²⁸

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