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Tuesday, June 28, 2011

My Blather in Beijing


Cultural Heritage, Environmental Impact Assessment, and People


Introduction: Assessing Environmental Impacts and Cultural Heritage





Problem One: What is Cultural Heritage?


• Monuments, archaeological sites, and cultural landmarks;

• Traditional ways of using the land and its resources;

• Culturally important plants and animals;

• Stories, songs, philosophy and language;

• Traditional forms of subsistence;

• Traditional ways of life;

• Religious and cultural practices;

• Objects of material culture (artifacts, antiquities);

• Art forms, and

• Books, manuscripts, and other literary products.



Problem Two: The Limitations of Traditional Thinking About Cultural Heritage











Problem Three: Attitudes and Assumptions




Government, Culture, and People




The Akwé: Kon Guidelines




(Secretariat of the CBD 2004:13)

The scope of such studies would take into account:



(c) Protocols (negotiated with communities);


(e) Respect for the need for cultural privacy; and

(f) Possible impacts on the exercise of customary laws.

(Secretariat of the CBD 2004:14)





(Secretariat of the CBD 2004:16-17)

Coordinated social impact assessments would:


(Secretariat of the CBD 2004: 18)

Economic assessments would recognize that:


(Secretariat of the CBD 2004: 19-20)


Opting for Akwé: Kon




Sunday, June 26, 2011

Gail Cohen’s Comments on the Cape Cod Dune Shacks: An Example


I post the following comments with their author's permission – the original addressed to the Superintendent of Cape Cod National Seashore – for a couple of reasons.

First, the case of the Dune Shacks is really a classic. The Shacks, which have been occupied by a self-defined community of non-conformist artists, writers, and other assorted ne’er-do-wells for generations, is obviously a traditional cultural property (TCP) by any reasonable definition, has and has been found so by repeated studies into which the National Park Service has thrown good money and bad. But NPS won’t agree that they're eligible for the National Register as a TCP; no, no. They are eligible, says NPS (and indeed are on the Register), but simply as pieces of interesting vernacular architecture with historical associations but no links to the living community's cultural identity. The Register staff itself have gone along with this, as they regularly do when it's NPS making the outrageous determinations (How could they do otherwise, and expect to coast untroubled on through to retirement?). 

Why is NPS so up-tight about the matter?  Apparently because it perceives, with some justification, that if the Shacks are viewed as a TCP, its representatives would have to (horrors!) consult with the Shacks’ residents and friends about their management, and perhaps not have the free hand it wants to have in evicting people and wasting tax dollars on prettying the Shacks up for tourists. 

My second reason for posting Gail’s comments -- which apparently relate to a currently proposed NPS plan for the Shacks -- is that they’re exemplary of the form in which comments often come in from concerned, knowledgeable, impassioned citizens in cases like this, and the form is likely to cause public servants in agencies and SHPO offices to throw up their hands in despair. The comments are longish and rather rambling. They assume a considerable level of knowledge on the part of the reader about the place, the case, the situation, the issues, the individuals involved. They assume that the reader has been paying attention to the nuances of the case.

All reasonable enough assumptions for a citizen to have, one might think, and we oughtn't expect concerned citizens not to express their concerns, in their own vernacular.  But for the SHPO staffer trying to juggle a hundred simultaneous cases while his or her job is threatened by budget cuts and he or she is being burdened with a thousand kinds of administrivia, it has to be enough to cause hair-tearing and the temptation to toss the whole thing into a file and forget it. It’s to the considerable credit of the Massachusetts SHPO that they’ve not done this; they keep poking NPS about the matter.  I suspect, however – no, I know – that in other cases such tossing and forgetting is exactly what pretty routinely happens. It’s a problem that preservation authorities ought to attend to, if they expect to build and maintain public support.  At the same time, members of the public ought to try to remember that they're trying to communicate with real, overworked people, and try to make it as easy as possible for those people to get the point that they're trying to make.


Public Comments (number 50 or so). DUNE SHACKS - Historic District Preservation and Use
Plan Etc. By Gail Cohen

Maria Burks put a hold on years of Injustice to the Dune Dwellers, Betrayal to the Citizens of Cape Cod, and to Provincetown concerning the promises made to the People in the Hearings that led up to, and in the Legislation that created the Cape Cod National Seashore. Maria let the Dune Dwellers stay when their stipulations ran out - the Tasha’s, Lawrence Schuster, and Zara Ofsevit Jackson in 2005.

George Price to this date refuses to attempt to make the National Park Service more Just, but he Could - as could any one in the National Park Service, any Congressman or Senator, and the Secretary Of The Interior. The person who does this would be a Hero or Heroine.

They could never erase the pain of the Dune Dwellers since 1961, those evicted, those harassed, and those who had their Dune Shacks (cottages) destroyed by the Cape Cod National Seashore. They could never erase the pain of the American Taxpayer over the Millions of dollars spent litigating the Dune Dwellers, the numerous public comment periods, reports, outside consultants, battles over the eligibility of the Dune Shacks to the National Register Of Historic Places, and that of the Traditional Cultural Property where the CCNS went against the recommendation of the person hired to make that determination.

It is high time that the Cape Cod National Seashore, and National Park Service start telling the Truth about the Dune Shacks (cottages). Not only has this continually been withheld, as evident in the recent released Listing of the Dune Shacks on the National Register for which no one from the Public or Dune Dwellers were allowed to speak to the outside consultant (PAL) that did the Listing, but the CCNS has directly lied to the Press telling them that none of the Dune Dwellers had any Property Rights when the last three law cases proved property rights, and others had deeds whose dune shacks were moved from their tracts due to the nature of the dunes, and peril of falling into the sea.

The only real dune dwellers are those whose dune shacks and property were taken by Eminent Domain in 1969, and 1971. Every thing concerning the Dune Shacks should have this FACT included. No One handed their dune shack over to the Cape Cod National Seashore. The Braaton’s did loan their dune shack to the U. S. Navy during WWII which threw out Eugene O’Neill’s sink, as much of the dune shack was salvage from the Peaked Hill Coast Guard Station where O’Neill lived that fell into the sea. Even though this was long gone, the O’Neill Estate property - over 50 acres was taken by Eminent Domain when the rest of the dune shacks and property were taken by the National Park Service.

However, one dune dweller who sold the CCNS land was allowed to stay - except for a cement foundation his dune shack was as all of the others. His was destroyed, so one was built on his Father’s property. One has to wonder why his was declared Improve Property, when the others who had deeds and proved their property rights in court were not . To understand this one only has to look as to why a Congressman was allowed to stay in Cayuga Recreation (National Park) when all others were forced out.

CCNS refused to let me speak to Bob Wolfe. I did the last day when he presented his findings which was the first time recognized that the CCNS destroyed many dune shacks on purpose - Tony Vevers when he was away teaching, 2 of Ozzie Ball’s, 2 of Grace Bessay’s - one in which the CCNS forced her to pay for its destruction, Carl Tasha’s, 3 of Pat Patricks, others that the fire department were given as fire practice, and Charlie Schmid’s that was bulldoze, and Herbert Olson had one protester actually picked up by the bull dozer. The dune shack was left in rubble for a year on the dunes inspiring the creation of Peaked Hill Trust by outraged citizens.

The Fleurant, Watson, Jones, and the Boat House were allowed to rot. The CCNS was to be cited for Demolition By Neglect. That is why they were allowed to be leased due to the extensive repairs that had to be made. Otherwise, they would not have been occupied. Even though the CCNS was mandated in 1989 to maintain the dune shacks once they were declared eligible for the National Register - the dune shacks were leased, and all of the owners which they were called had the full burden of maintaining them. I have often talked about Leo Fluerant’s jeep buried in the sand with the top of the jeep sticking out reminding me of the Statue Of Liberty in the film PLANET OF THE APES.

James Killion of the CCNS once he retired admitted that he did not even tell many of the dune dwellers that instead of Life, the stipulations could be for 25 years. Frenchie Chanel would not sign her stipulation until it was added that her daughter could have the dune shack for her lifetime which they did include. Yet, the Chaplins had to spend 18 years in court to get the exact same stipulation for their children as the NPS would not pay them what they were owed for their property claiming they had no money, though David Adams was paid the hundreds of thousand of dollars owed to him as their properties are oceanfront. All 3 dune dwellers who remained in court wanted to stay in their dune shacks only.

In Grace Bessay’s Historic law case (the oldest individual Federal one in America) the judges kept saying NO PUBLIC UTILITIES. Under the legislation that created the Cape Cod National Seashore the dune shacks only had to be in accordance with local zoning laws which they were. Instead the courts applied the Federal definition. The U.S. Court of Appeals did not even care that the dune shacks had just been declared eligible for the Historic Register in which public utilities were not allowed. Grace Bessay proved her property rights, but as in the other dune shack law cases, except for Conrad Malicoat they were not declared Improved Property. In the Legislation that created the Cape Cod National Seashore the dune shacks are listed as Improved Property.

George Price likes to state that the Dune Shack Stipulations which all were forced to sign will be enforced. Yet, Herbert Olson, a former Superintendent went against the stipulations for Hazel Hawthorne Werner’s dune shacks by allowing Peaked Hill Trust as an experiment to use Hazel’s two dune shacks while she was still alive.

The stipulations as do most state for residential use only. Later stipulations did not allow dune dwellers to rent for less than 90 days, or at all. Yet, all the 3 non-profits are allowed to rent out the 6 dune shacks given to them, or allowed for a large sum of money. Ironically, this was the reason given by the Keeper of the Register in denying the dune shacks Traditional Cultural Property status - that the non-profit stays were temporary. Peaked Hill Trust was founded because the Cape Cod National Seashore was destroying, and intended to destroy all of the dune shacks. There is not one word about Dune Shacks in their original Charter. They did initiate the Historic Register status, however the dune shacks were saved in 1989 by the efforts of many, and Beth Savage at the National Register. I saved the 3 that were allowed to rot by the Cape Cod National Seashore, and eventually were leased under historic leasing agreements.

That this report and the Historic Register Listing calls the Fuller-Bessay Dune Shack the Al Fearing Dune Shack is ridiculous, and directed at Peter Clemons and his Family as well as Grace Bessay who was in court for 23 years. Grace was evicted 3 times. At the 11th hour an agreement was reached. The Supreme Court would not hear her law case. This was wrong, and what happen to Grace has happen to many all over the country by the National Park Service. Change the name of this dune shack which has been on all of the owner/occupancy lists since the 1960’s. It should be done immediately. It was Dorothy Fearing who testified in Grace Bessay’s law case on her behalf.

It is clear that the Cape Cod National Seashore, and the National Park Service CONTINUE to destroy dune shack culture, and ignore the findings of Bob Wolfe. It is clear that the National Register of Historic Places needs to be removed from the National Park Service which is totally political, and does the bidding of the NPS. The Keeper of the Register refused to sign the eligibility statement in 1989 which is why Beth Savage had to sign it. Paul Loether refused to say what was the recommendation of his Staff when the Keeper at the time, Janet Matthews denied Traditional Cultural Property Status. NPS and the National Register claimed there was NOTHING in writing about the above when I filed for Freedom of Information documents. The conclusions of the Consensus Building Institute which were paid over $100,000 were the Exact Same as those reached in 1991 by the Dune Shack Subcommittee of the Advisory Commission of the Cape Cod National Seashore. The highlight of injustice is George Price making sure that he is not responsible for choosing who remains in the dune shacks, and had the rule changed so that it will be the NE Regional Office, and the Director of the National Park Service who will decide.
I have been involved now for 23 years in the dune shack/dune dweller issues. At every turn there has been injustice, lies, false and incomplete information. It is not the Dune Dwellers problem, but that of the American Taxpayer, and all citizens of Cape Cod who have been betrayed by the Federal Government. Promises were not kept, nor was the 1961 Legislation adhered to over the years. The Cape Cod National SEASHORE has been treated like all other National Parks. It was not suppose to be.

If there is any brave person out there, or George Price wants to be known for something good - I am submitting what little Justice can be gotten NOW. Even though Senator John Kerry claimed in a press release that the Dune Shacks Were a Traditional Cultural Property, he was ignored and there was no appeal at all allowed by the Keeper of the National Register. The only real solution for the Dune Dwellers can come from simple Legislation as that of Mineral King Permit Cabins, or by the Secretary of the Interior who should have in the 1960’s declared all of them Improved Property. Those at Mineral King have no property rights at all, but were allowed to stay, and pass them on to their families and heirs. This has to happen to sweep away decades of INJUSTICE. It is way too late for those who suffered the most now dead. A little Justice though can be had if someone has the courage to right the wrongs of the National Park Service and Cape Cod National Seashore.

HARRY KEMP IS WATCHING. The following should be implemented:

1. Jean Miller Cohen Dune Shack - I have no objection to the Provincetown Community Compact keeping this dune shack. However, if relatives of Jean Cohen or heirs exist they should have a week or two weeks. Please note that because this dune shack was in the Province Lands, Jean Miller Cohen got only a 15 year stipulation. The State did not recognize squatter rights. Her heirs had the dune shack, and were evicted. One died, but if the other one is still alive he should have a week or two at the dune shack. I have been told that Bob Wolfe put in his report that it was the Gail Cohen dune shack. This is untrue, and I am not related to Jean Cohen.

2. Leo Fleurant Dune Shack - Emily Bebe, and Evelyn Simon spent thousand of dollars rehabilitating this dune shack that had been left to rot by the Cape Cod National Seashore. They should be allowed to stay, and their lease renewed for a long term.

3. David and Marcia Adams Guest Cottage - The Adams family should be allowed to stay, and have use of this cottage.

4. David and Marcia Adams Dune Shack - The Adams family should be allowed to stay. They have total property rights, and were paid over $400,000. However, all of the dune shacks are Improved Property and were thus should not have been TAKEN. Just for keeping them in court for so many years, they should be allowed to keep the money. A way to pay back is documented in the film FOR THE COMMON GOOD, when the residents of Cayuga National Recreation Center (now changed to Park) were evicted, and paid for their property when they thought the Secretary of the Interior were going to let them stay. I have been told that after throwing these people and businesses out that new ones are in that Park which was also not to be treated like all the other National Parks.

5. Hazel Hawthorne Werner Dune Shack - Euphoria -- I have no objection to Peaked Hill Trust keeping this dune shack. However, only if they tell everyone they rent to about Hazel. Also, as soon as Aaron Avellar died - his wife Anna and sons were no longer given their week or two in Hazel’s dune shack. This time in Hazel’s dune shacks needs to be reinstated immediately. In addition, last time I spoke with Sue and the Uffords - Hazel’s other relatives - they had never been picked for the PHT lottery. A week or two should be set aside for them in one of Hazel’s two dune shacks.

6. Hazel Hawthorne Werner Dune Shack - Thalassic -- Same as Above. I will add that Hazel’s family is not happy at all with Peaked Hill Trust. The relationship is strained due to how the family was treated. I am annoyed that when Hazel late in life tried to go to her dune shacks - PHT was not able to get her up there though they tried. They should have succeeded.

7. Boris Margo and Jan Gelb Dune Shack - This dune shack should never have been given to Peaked Hill Trust. Murray Zimiles helped Boris build the dune shack. He paid the taxes when letting PHT use it before Boris died. He, and the entire Family are artists. Though Dawn Zimiles works at the Fine Arts Center run by Hattie Fitts, they have never spoken about the pain of the Family losing the dune shack. Murray Zimiles applied for it, and the CCNS instead gave it to Peaked Hill Trust. This was wrong, and needs immediately to be rectified. Murray was given two weeks at the dune shack by Peaked Hill Trust. They then reduced it to one week. This dune shack needs to go back to Murray Zimiles who can then decide if PHT can rent the dune shack when the family is not using it. The Family has a close relationship with the memory of Boris and Jan.
8. Harry Kemp (Tasha) Dune Shack - Harry Kemp willed his dune shack to Carl Tasha. Coastguardman and Provincetown Player Frank Henderson had given him the dune shack in writing. Due to his being underage, the dune shack was obtained by his Mother - Sunny Tasha for the Family. Carl was a brilliant artist and sculptor who also made jewelry though PAL did not mention him in the National Register Listing. Sunny Tasha was a Provincetown Icon who had survived the Johnstown Flood. Of course, the Tasha Family should remain in this Dune Shack, as should the upcoming generations. If the Tasha’s had remained in court, they would have proven their squatter rights. Their lawyer told them to drop out when the Justice Dept. lawyer said to him, “We are going to get those asses out of there”.

9. Zara Malkin Ofsevit Dune Shack - Though Zara has in recent years let Peaked Hill Trust rent her Dune Shack - she has told me that she would give any thing to get it back, and be able to do what she wants with it. Zara’s Mother (

Alice Malkin) purchased this Dune Shack from a Provincetown City Clerk. There is a deed, and Zara is the rightful owner and heir. This dune shack had to be moved off the deeded tract. Zara should decide who gets to have her dune shack in the future.

10. Nicholas and Ray Wells Dune Shack - Ray Wells purchased this Dune Shack and 50 acres from Eugene O’Neill’s wife Carlotta Monteray. There was a deed. When Ray was away, the dune shack was moved by the caretaker off of the deeded property to maintain it from erosion. It is Ray Wells Dune Shack, and at 103 Ray is living for that dune shack. She did not even want PHT to rent the dune shack until her death, though Joyce Johnson was allowed to maintain it along with Peaked Hill Trust. Ray should be allowed to decide who gets her dune shack after she is gone. If the Watson Dune Shack is not given to Joyce Johnson - this one should be given to her, along with Peaked Hill Trust to maintain it.

11. Andy Fuller and Grace Bessay Dune Shack (It is Not the Al Fearing Dune Shack) - I don’t care what you do with this one. However, Peter Clemon’s children are innocent victims and have grown up on the dunes. The dune shack should be given to them in 2016. PAL neglected to state that Peter Clemon’s is an artist. Grace Bessay fought for her way of life, and her property. That should be Honored.

12. Jeanne Chanel (Frenchie) Dune Shack - Frenchie Chanel was also an artist. When one went into Town Hall on the right hand wall was her painting MY DUNE HOME. I have a photo of Maria Burks in front of it. It was her Dune Home, and her daughter Adrienne (Shatzi) should be able to decide who gets it after her death. Originally, she wanted it to go to a relative who I believe is no longer alive. It should be her decision alone.

I do not know of the arrangements she made with the Del Deo’s. I do not want to know. If Shatzi wants the Del Deo’s to have it after she is gone fine. I have been told that the Del Deo’s son wants the dune shack. However, as far as I know he has never done any thing, or been involved in any of the Dune Shack issues. Though involved in a messy divorce, Andrew Clemon’s was also in one but has participated. The Del Deo’s son too is a prominent artist, and they have a daughter.

The one thing to note is that the Cape Cod National Seashore, and National Park Service has cause agony to Schatzi who loves that dune shack. After the war it gave her and her Mother peace. She has let Josephine Del Deo deal with the dune shack, though she did come to several meetings in the past. The pain has been too great.

13. Theodore and Eunice Braaten Dune Shack - This dune shack is one of the most sad stories up on the dunes. The National Park Service stopped Special Permits which the Braaten’s had one. This was at the same time they stopped the Special Use Permit for the Provincetown Landfill (Transfer Station). Since Special Use Permits have been reinstated. The Braaten’s purchased their dune shack. The land was owned by the sand company, yet the Braaten’s paid all of the taxes. All of a sudden when the Braaten’s were in their 90’s and still using the dune shack their Special Use Permit was not renewed. Eunice called me in tears. It remained empty until Lawrence Schuster had no place to live, and Eunice asked him to take care of the dune shack for them. This was totally illegal at the time since there was no Special Use Permit which was renewed annually. Eunice gave Lawrence a place to live from her own generosity.

For awhile, Lawrence let the Braaten children or grandchildren visit - then stopped. When Ted Braaten died at age 103, Lawrence was evicted. Before the eviction was carried out, Maria Burks decided to let Lawrence stay going against the Braaton stipulation. I have no objection to Lawrence who continues the tradition of year-round living on the dunes, but only if he allows the Braaten grandchildren time in the dune shack when he is not at home. The dune shack is rightfully theirs, and this should be done while David Braaten who grew up on the dunes is still alive. The Grandchildren who I have talked to want to visit the dune shack and claim their rightful heritage. If Lawrence does not allow them access, the dune shack should revert back to the Braaten Family.

14. Margaret (Peg) Watson Dune Shack - When wills were allowed by the CCNS, Peg Watson willed her dune shack to Charlie Schmid. Charlie in turn willed it to Joyce Johnson and another woman who helped him in his later years. They should be given the dune shack which is rightfully theirs. Peaked Hill Trust can also share it, as Joyce does not want to be totally responsible for the maintance. Julie Schechter’s (Peaked Hill Trust) Sister has no right to it whatsoever though I appreciate the fact that she lets Joyce use it in the Winter. The Dune Shack belongs to Joyce Johnson, and it is high time she had it. Joyce has Charlie Schmid’s ashes, and deserves this dune shack. She needs it now in her later years, and for the artist that she is.

15. Randolf and Annabelle Jones Dune Shack - Another sad story. Randolf and Annabelle loved this dune shack. Their ashes are there, and were upset by the current occupants from where they had been placed. Michael Sperber was willed Charlie Schmid’s dune shack which all of its unique 3 stories had been destroyed by the Cape Cod National Seashore. The Jones said Michael could have theirs. Michael’s children grew up in that dune shack. When Randolf Jones died, Michael Sperber was evicted. Michael Connelly, MA. Secretary of State had written that there were to be no more Evictions from the Dune Shacks. This was ignored, and has continued to be ignored except for Lawrence Schuster.

The dune shack rightfully belongs to Michael Sperber and his Family. At first, Marcia Dunn wanted to contact Michael to learn about the Jones. The Dunn’s, friends of the Fitts were allowed to lease the dune shack. At a meeting last year, Scott Fitts belligerently said he would not let Michael use the dune shack. This dune shack should immediately be returned to Michael Sperber and his Family. In addition, Randolf Jones left $25,000 for the maintenance of the dune shack. The CCNS rejected this gift, which instead went to the Jone’s church. The CCNS lied that they had not been told of this gift earlier, but Randolf had written them about it, and it had been received.

16. David and Connie Armstrong Dune Shack - The Armstrong children should have this dune shack when their parents die. They had to drop out of court due to the expense, and raising a family. The daughters are the rightful heirs.

17. Stanley and Laura Fowler Dune Shack - Another sad story. Since Peter Clemons has not been forthcoming with me about his arrangement with Laura Fowler, this dune shack should be given to the Fowler children. Immediately, the Fowler’s furniture, stove etc. should be moved back in. They should have never been ordered to be taken out by the CCNS. The Clemons should remain as caretakers as Laura Fowler may have had an issue with one of her children not taking care of it the way she wanted. Peter Clemon’s and his Family were evicted from this dune shack after Laura Fowler died, even though all the others were allowed to stay when stipulations were over - and George Price pledged that all would remain the same until the final dune shack use plan. This was wrong. Many dune dwellers had two or more dune shacks. The Provincetown Community Compact has no right to it, though except for the high rent I have no objection to them using it. I do object to how CCNS handled this, and the heartache it brought to the Fowler children and the Clemon’s Family.

18. Tony Vevers Dune Shack - Destroyed on purpose by the Cape Cod National Seashore. This dune shack was given to the Vevers by the son of Heinrich Pfiffer who had owned the Artist Theatre on Pfiffer’s Wharf which became the Provincetown Playhouse On The Wharf in 1940. Tony Vever’s wife and daughter should immediately be allowed to rebuild their dune shack on the property. Peaked Hill Trust has offered to build it for them. All of the Vevers are well known artists, and Tabitha Vevers has an art gallery in Provincetown.

19. If the Patrick Family wants to rebuild they should be allowed to do so. And since also Carl Tasha’s dune shack was destroyed while he was away at college, the Tasha Family should be allowed to rebuild it given that the family is a large once.

20. Given that the stipulations that ended in 2005 were allowed to continue staying in their dune shacks - this is a precedence for allowing ALL of the Dune Dwellers another 6 or more years. Meanwhile leases that expired were also renewed in recent years. You and NPS can’t give 6 or more extra years to some, and not to the other Dune Dwellers.

Gail Cohen
St. Petersburg, FL. 33710

Thursday, June 02, 2011

Making the Section 106 Regulations More Effective and Less Burdensome

Here are my June 2 comments in response to the
Advisory Council on Historic Preservation's request for advice

Dear ACHP:

I'm writing in response to your notice of June 1, requesting public comments to assist with your retrospective review of the effectiveness of the NHPA Section 106 regulations. My comments are organized with reference to the nine questions you posed.

1. How should the ACHP periodically review its regulations to ensure they are serving their stated purpose efficiently and effectively? Please provide specific recommendations on appropriate outreach and timing.

The first step would be to rework the regs to make them much simpler and easier to understand (see below). Until that's done, it's going to be very difficult to "review" them in any meaningful, transparent way, because only specialists will understand them and be able to participate in review. Having reworked and simplified them, I'd suggest asking some outside organization -- NOT a preservation advocacy group like the NTHP, or an industry organization, or a contractor's lobby like ACRA -- to put together a stakeholders' group every 5 years or so to review the record of consultations and make recommendations. This might be a job for the Institute for Environmental Conflict Resolution. Of course, this review should be coupled with general public review and comment, and there should be some process for bringing the review to an actionable conclusion.

2. How can the ACHP reduce burdens and maintain flexibility for participants in the Section 106 regulatory process in a way that will promote the protection of historic properties?

First, and without the need for any regulatory or statutory changes, do the following:

a. Insist that the ACHP staff focus on serious issues and cut the crap. We should not, for example, be troubled in the process by wet-behind-the-ears ACHP staff members insisting that we really have to focus on avoidance before minimization before mitigation. If this requires re-educating your legal staff, do that, too.

b. REALLY beat up on agencies, SHPOs, and NPS as the SHPOs' overseer to focus attention on 36 CFR 800.3, initiating review. Try to get them all to understand that the process needs to start early, and that early consultation necessarily entails a degree of ambiguity about project plans, effects, and affected properties. Try to get them to understand that review really is supposed to be an open, public, consultative process, and that among the very first things an agency's supposed to do -- and an SHPO ought to help agencies to do -- is to identify and engage consulting parties.

c. Insist that NPS re-think the standards by which SHPO performance is judged; at the very least, the nonsense that SHPOs are required to keep track of should be consistent with the current regulations, not those left over from the 1980s. Try to get them to understand that however much they may be in love with National Register nominations and equivalent forms of hyper-documentation, these are seldom useful in real-world planning, and are not required by the regulations.

Preferably, however, change the regulations, and even better, seek changes in the statute (see below).

3. How can the process set forth in the Section 106 regulations better achieve positive preservation outcomes?

The question implies that the process is SUPPOSED to result in "positive preservation outcomes," and that strikes me as not necessarily true. It's also very ambiguous: "positive" in whose eyes? Have you forgotten that the ACHP is ON Historic Preservation, not FOR it? The process should be aimed at achieving outcomes that are broadly accepted as being in the public interest; it should NOT be aimed at achieving some abstract measure of historic preservation goodness. This being (I think) the case, the process should be revised to make broad, early, systematic consultation much easier to do, with truly meaningful participation by all parties, aimed at reaching agreed-upon results. In other words, it should emphasize what makes Section 106 review nearly unique in the federal system -- consultation -- and de-emphasize a lot of the fol-de-rol that inevitably comes into play when one insists on seeking "positive preservation outcomes."

4. How can the regulations be better harmonized with other federal environmental review procedures, such as the National Environmental Policy Act?

By actually relating to them. Presumably CEQ is going through an exercise similar to the ACHPs, so there may perhaps be opportunities for mutual revisions of regulations to make them more compatible. The ACHP ought to work on CEQ to get it to adopt a consultation-based approach to NEPA review, and then embed 106 review within it.

5. How can the ACHP ensure that the Section 106 regulations are consistent with and coordinated effectively with other regulations promulgated by the National Park Service pursuant to the National Historic Preservation Act?

Like what? I'm afraid there is a subtext here: "NPS good; cannot be questioned; ACHP must be consistent with good NPS, otherwise ACHP bad." BS. NPS regulations need fixing just as much as the ACHP's do, and NPS has shown brilliantly over the last several decades that its only coordinative capacity lies in its anatomically impressive ability to pat itself on the back. Your review should include review of all NPS regulations that relate in any way to Section 106 review, and you should make recommendations as to how THEY can be made less burdensome and more effective. NPS can then happily spend the next decade or so ignoring them.

6. How can the ACHP ensure that information developed to support findings under the regulations is guided by objective scientific evidence?

OK, I know that's in the Executive Order so you've got to address it, but it's really only marginally relevant. Trying to find "objective scientific evidence" as the basis for findings about, say, visual effects on the ambience of a historic district is like trying to catch a will-o'-the-wisp in a jar. It's a waste of time and will just frustrate everyone -- AND tend to make the process inaccessible to the public, which mostly is not made up of scientists, is not objective, and doesn't necessarily judge "evidence" the way scientists do. What the ACHP COULD do is look to the SOCIAL sciences -- anthropology, cultural geography, sociology, and the hybrid disciplines that study decision making and public engagement, both within and across cultural, social, and economic groups, and try really hard to make the 106 process reflect the best that these sciences have to offer.

7. Should performance metrics that demonstrate agency compliance and document Section 106 outcomes be developed? Please cite specific areas where metrics are needed.

Not just no, but hell no. "Performance metrics" applied to historic preservation have already resulted in agencies wasting time trying to calculate what percentage of historic properties under their control have been preserved, and by how much. Utter nonsense, and even more nonsensical when applied to something as necessarily flexible as Section 106 review. The only meaningful metric is the answer to the question: "did we or did we not, in this case, reach a conclusion that was broadly accepted as being in the public interest?" If you can count up the times you did and the times you didn't, I guess that would be of some interest.

8. Are there better ways to encourage public participation and an open exchange of views as part of Section 106 review? Please cite specific areas where improvements could be made and indicate what tools or mechanisms might be made available to achieve this goal.

"Better" ways? Better than what? Never mind; are there ways? Certainly. To start with, rigorously expunge the jargon and nit-pickery from the regulations. Specifically, do away with abstractions like "adverse effect" and "no adverse effect." When an agency wants to do something, the process ought to seek to find out whether anybody has a problem with it that's somehow related to historic preservation (broadly understood); if not, the agency ought to be good to go, but if there are problems, the process should be aimed at resolving them through consultation. It is outrageous to spend time and money arguing about whether something is or is not an adverse effect when nobody really gives a hoot whether the adverse effect occurs or not. It is equally outrageous to have an effect that people think is terrible treated as "not adverse" because it's possible to make a lawyerly argument that it doesn't "diminish the integrity of the property's location, design, setting, etc. etc. etc." The regulations are awash in such abstractions, and the related NPS regulations are even worse. Secondly, train your people to engage the public, and insist that SHPOs do likewise (Ridiculous as it is, they are, according to the regs, supposed to represent the people of the state). And restructure the regs to force such engagement. There is a lot of literature and expertise out in the world about how to engage people in defining and resolving disputes; the ACHP staff should become expert in it, and promote its use by others.

9. How else might the ACHP modify, clarify, or improve the regulations to reduce burdens and increase efficiency?

Oh, let me count the ways! To start with, think about restructuring the regs to address different project or program types in different ways. A project conducted directly by a federal agency is different from a project an agency assists, and both are different from projects that agencies permit. Procedures tailored to each type might be helpful. And/or try to build systems for determining the extent to which a given project outrages public sensitivities, and give projects that do a lot more rigorous review than is given those that don't. Whatever is done should be done in concert with CEQ, so that reforms are reflected both in 106 and NEPA, with EPA so they're reflected in the implementation of CERCLA, RCRA, and their toxic kin, and with the land managing agencies so they're reflected in planning under laws like FLPMA.

Seek ways -- and I realize that it would be hard and tricky -- to do away with the noxious practice of letting project proponents hire and fire those who analyze the impacts of their projects. Proponents doubtless need expert advice and advocacy, but it's ridiculous to pretend that a self-understood member of a proponent's planning team, who can be canned if he or she doesn't give the proponent's preferred answers, can objectively analyze impacts or reflect public concerns.

Ideally -- and this, I know, would require legislation -- uncouple the consultation process from the National Register and let it address WHATEVER is of concern to people about the cultural environment. Let the Register go off and be its happy, irrelevant self, while Section 106-type consultation (or rather, an improved version thereof) is applied to resolving concerns about impacts on "cultural resources" broadly defined, or on whatever people value in the environment

Thanks for the opportunity to comment.

Tom King

ACHP Seeks Advice

The Advisory Council on Historic Preservation (ACHP) has just published a notice requesting advice from interested parties about how its National Historic Preservation Act Section 106 regulatory process (outlined at 36 CFR 800) might be improved to make it more effective and less burdensome.  This is in response to President Obama's Executive Order 13563, which directed all rulemaking agencies to undertake such a review.

The ACHP's request, which includes specific questions to which it solicits responses, can be accessed at .  I'd certainly encourage everyone interested in how the Section 106 process does and doesn't work to take a close look at the request, and respond to it.