Several years ago, I sat chatting with a group of lawyers, all of whom had been practicing for at least a decade longer than I had, when I mentioned that my practice area had changed to “cultural resources.” The room went silent until someone finally admitted, “I’m not sure I know what that means.”
What are cultural resources? Places or things or both?
This confession admitting a lack of understanding of what is intended by the term “cultural resources” is not unusual. Interestingly, however, some of our nation’s most familiar laws designed to protect cultural resources, such as the National Environmental Policy Act (NEPA), call for the consideration of cultural resources as that term “is commonly understood.”
After years of working closely with archaeologists—a passionate profession if ever there was one—I know that reaching a “common understanding” of “cultural resources” is a complicated exercise. Moreover, for the federal lawyer working to ensure compliance with federal cultural resource protection laws, the breadth of interests involved and interpretations of what those laws mean can be bewildering.
Fortunately, other laws specifically addressing the scope of cultural resources are more descriptive than just referencing a common understanding. For example, the Archaeological Resources Protection Act of 1979 applies to “material remains of past human life.” The Native American Graves Protection and Repatriation Act protects burial sites and funerary objects.
Applicable to any site or federal lands only?
Some laws, including these last two, apply only to cultural resources found on federal and certain Indian lands. What of private lands or sacred sites and landscapes that are less clearly delineated than archeological resources? Are these also protected? Yes … for the most part.
Cultural resources on private land, as well as publically owned land, that meet certain criteria fall under the umbrella of the National Historic Preservation Act (NHPA) and its implementing regulations. Broader in scope than other laws, the NHPA invokes the criteria of the National Park Service’s National Register of Historic Places to define the cultural resources it addresses, known as “historic properties.” While the layered National Register criteria require professional interpretation, they generally provide a framework for resources that are 50 years old or older and that are related to significant events or people in history, are likely to reveal important information about history or prehistory, or represent the work of a master or unique style. Despite the discretion allowed for interpretation, some have criticized the National Register’s framework as being inappropriately narrow and imposing a bureaucratic approach, particularly with regard to how agencies apply the criteria to sacred sites and traditional cultural properties.
If a culturally significant site or landscape does not neatly fit the National Register criteria or if the engaged parties disagree on a resource’s eligibility as an historic property, the overarching purpose of the NHPA may be difficult to meet. The battle of the Wampanoag Tribes to have the Nantucket Sound recognized as a cultural resource eligible for listing on the National Register, and thus affecting the government’s approval of a large offshore wind energy project, famously illustrates the issues that arise when regulatory criteria collide with a sacred sense of place. Pub. Employees for Envtl. Responsibility v. Beaudreau, 25 F. Supp. 3d 67 (D.C. Cir. June 11, 2014).
What should be done if a project could affect cultural resources?
If your agency is proposing a project that could affect cultural resources or if your client is seeking federal approval or a permit for a project that could affect cultural resources, it is critical to recognize both the requirements and the limitations of the NHPA, even though other considerations may also guide the path forward.
Consultation—the most critical piece of the puzzle
The NHPA directs federal agencies to consult with various parties to determine whether there are resources present on or near the project site that might be eligible for inclusion on the National Register and, if yes, to determine whether the federal undertaking might adversely affect those resources. These parties include entities with a “demonstrated interest” in the resource and any Indian tribe ascribing religious or cultural significance to the resource. Not consulting with a particular tribe can be both legally problematic and possibly disastrous for the resource if the agency fails to understand the resource’s importance before the agency acts.
Ensuring appropriate and sufficient process
Although the law explicitly requires consultation only with federally recognized tribes, some agencies consult with unrecognized tribes if they are likely to have a demonstrated interest. How a federal agency ultimately addresses a resource lies beyond the scope of the government lawyer’s duties, but the lawyer must be able to defend the agency’s consultation process as being sufficient for the agency to make an informed decision about the treatment of a resource.
What else should I consider if a project may affect cultural resources?
Individual federal agencies may have directives for considering resources that might reach beyond the National Register criteria. One immediate consideration is whether the particular federal agency taking action was a party to the Memorandum of Understanding for Interagency Collaboration and Coordination for the Protection of Sacred Sites. Agencies subject to this MOU have put together working groups to evaluate current laws and policies that apply to sacred sites. Their findings are certain to affect perspectives about the meaning of “cultural resources” in the future. State laws may apply and should also be considered.
The lawyer’s balancing act
The NHPA requires that the federal agency taking action must also make a determination of eligibility for each affected cultural resource based on information provided by qualified archeologists and input from parties that ascribe significance to a site. More often than not, federal lawyers face situations that aren’t squarely addressed in the applicable regulations. A healthy understanding of the overarching principles and unfolding policy directions for cultural resources is essential to ensuring respectful and meaningful compliance with cultural resource laws.