By Thomas F. King
I write to comment on the “Programmatic Agreement” (PA) among the
Commander, Joint Region Marianas (CJRM) and the Guam State Historic
Preservation Officer {SHPO) regarding military training and testing on,
and within the surrounding waters of, the island of Guam. I do so based
on some 40 years experience with such agreements throughout the United
States and its Pacific island territories, commonwealth, and freely
associated states.
The PA purports to place CJRM in compliance with Section 106 of the
National Historic Preservation Act (NHPA). Section 106 reads as follows:
“The head of any Federal agency having direct or indirect jurisdiction
over a proposed Federal or federally assisted undertaking in any State
and the head of any Federal department or independent agency having
authority to license any undertaking shall, PRIOR TO THE APPROVAL OF THE
EXPENDITURE OF ANY FEDERAL FUNDS ON THE UNDERTAKING OR PRIOR TO THE
ISSUANCE OF ANY LICENSE, AS THE CASE MAY BE, take into account the
effect of the undertaking on any district, site, building, structure, or
object that is included in or eligible for inclusion in the National
Register. The head of any such Federal agency shall afford the Advisory
Council on Historic Preservation established under Title II of this Act
a reasonable opportunity to comment with regard to such undertaking_
(emphasis added).”
That word “prior” is an important one. The Merriam-Webster Online
Dictionary defines it to mean “earlier in time or order.” It follows
– and is, I think, widely understood – that under Section 106 an
agency must “take into account” its effects on historic properties
(that is, districts, etc. included in or eligible for the National
Register of Historic Places) BEFORE approving (or disapproving) the
expenditure of federal funds on an undertaking or permitting it to
proceed. This only makes sense; if one doesn’t take effects into
account until AFTER approving funding or issuing a permit, one obviously
can’t do much (if anything) to mitigate such effects, and it is
generally understood that Congress meant for agencies to consider ways
of mitigating adverse effects as part of the “taking into account”
process. Otherwise, “taking into account” would be a meaningless
exercise.
What, exactly, is required in order to take effects on historic
properties into account has been the subject of considerable debate over
the years, much of it taking place in the 1980s, when I served the
Advisory Council on Historic Preservation (ACHP) overseeing review under
Section 106 and its implementing regulations (36 CFR Part 800). Among
the questions debated were:
- Must an agency identify every single historic property that its
planned undertaking may affect, in order to take effects on them into
account? -
What methods must an agency employ in identifying such
properties? -
How thoroughly must an agency document historic properties before
taking effects on them into account? -
With whom should an agency consult in identifying historic
properties and addressing effects?
Over the years, a more or less standard – and, I think, logical –
process was developed to structure Section 106 review, and was embodied
in the Part 800 regulations. The above questions were answered in the
regulations as follows:
- NO, an agency need not identify every potentially affected
historic property, but it must make a “reasonable and good faith”
identification effort, following a SCOPE of study developed in
consultation with the SHPO and – critically – “individuals and
organizations with a demonstrated interest in the undertaking” (36 CFR
800.1(c)(5)) – generally referred to as “interested parties” and,
upon becoming involved in consultation, as “consulting parties.”
Moreover, the agency must “seek and consider the views of the public
in a manner that reflects the nature and complexity of the undertaking
and its effects on historic properties, the likely interest of the
public in the effects on historic properties,”… (etc. – 36 CFR
800.1(d)(1)). Members of the public may obviously be “interested
parties,” and may become “consulting parties.”
- Methods are to be laid out in the scope of study, and adjusted as
necessary through consultation. -
The extent and nature of documentation are to be laid out in the
scope of study, subject to reasonable adjustments via consultation. -
Agencies must consult with the SHPO, any seeker of a permit or
license, any relevant Indian tribe or Native Hawaiian organization, and,
again, “interested parties.”
It soon became apparent that it was inefficient to conduct Section 106
review as laid out in the regulations (which themselves evolved during
the 1980s and thereafter) on each and every action to which a federal
official proposed to attach their signature. Thus was born the idea of
PROGRAMMATIC compliance – reviewing whole agency programs, under which
multiple undertakings might be implemented. Such programmatic review
typically produced a written agreement among the consulting parties,
initially called a Programmatic Memorandum of Agreement, later shortened
to Programmatic Agreement (PA).
I was among the early and enthusiastic proponents of PAs, which I saw as
good vehicles for adjusting the standard section 106 process to the
needs of particular programs and situations. Others, notably Betsy
Merritt of the National Trust for Historic Preservation (NTHP),
vigorously warned about the dangers inherent in PAs – – that
agencies and regulated project proponents would inevitably use them to
narrowly constrain review, to put off review until it could do no good,
and to exclude interested parties from participation in reviewing
projects that might affect them. Time has proved me wrong and Ms.
Merritt right. Your proposed PA beautifully exhibits the depths to which
programmatic section 106 review has descended.
First, note that among the numerous “whereas” clauses, most of which
are mere fluff, the eighth such clause reports that the only parties you
have consulted during the PA’s preparation are the SHPO, the governor,
the ACHP, the National Park Service, and the Guam Preservation Trust.
Notably missing from this list are individuals and/or organizations
representing the interests of Guam’s indigenous Chamorro population,
some of whom I understand have expressed considerable dismay about the
contents of this PA. I hope you will agree that such individuals and/or
organizations have a “demonstrated interest” in your operations and
their effects on historic properties. Is there some reason that you did
not consult them? If so, please explain. If not, you have some serious
repair work to do.
Note too that the scope of your PA is rather breathtakingly broad,
embracing literally everything you do on Guam and in surrounding waters
within 3 miles. This might be acceptable if there were some
demonstration that the people of Guam accept your hegemony, and if your
PA articulated a sophisticated system for reviewing what you do and
arriving at decisions that reasonably accommodate the protection of
historic properties. Sadly, however, neither standard is met, so the PA
looks very much like an award of carte blanche to you – the colonial
military overseer – by its other parties.
The first set of stipulations, dealing with “standards,” assures us
that all reviews, surveys, studies, and similar activities will be
carried out by “qualified professionals” per specified
government-wide standards. Apparently, it will be up to you, unaided, to
determine when reviews, surveys, studies, etc. are required, and to
apply the relevant standards. Notably, nothing is said about ensuring
that the “qualified professionals” know anything about the history
and culture of Guam and the Mariana Islands, and nothing is said about
ensuring their understanding of Chamorro culture.
The fourth set of stipulations begins at Stipulation IV.A with a
reference to appendix A, “training and testing requiring no further
review.” In essence, this stipulation set allows you to proceed with a
wide range of training activities, subject only to “mitigations”
laid out in appendix A’s tabular summary. The “mitigations”
outlined are very terse and appear for the most part to involve only the
conduct of pedestrian archaeological surveys and the capture of
photographic documentation on historic properties (however these are
understood, by YOU) subject to impact (as determined, apparently, by
you). Decisions about when “mitigations” must be carried out, and
about their scopes of work appear to be left entirely up to YOU.
Stipulation IV.B is entitled “training and testing requiring further
review,” and begins with the remarkable statement that “CJRM shall
consult with SHPO as required by the provisions of Section 106 of the
NHPA for training and testing not captured within Appendix A.” One can
interpret this to mean that with respect to those activities that YOU
determine are not excluded from review under appendix A, you will carry
out the standard section 106 review process. However, you appear to
understand that process to involve ONLY consultation with the SHPO —
which of course is simply not consistent with the regulations that you
purport to follow. Or do you have some alternative definition of “the
provisions of Section 106” that you have not shared with us? If the
latter, please explain. If the former, your apparent failure to
understand the fundamentals of section 106 review does not bode well for
your implementation of this PA.
Stipulation V.A embodies a commitment on your part to coordinate with
the SHPO – BUT NO ONE ELSE – when planning “cultural resource
surveys.” It is not clear to me what you mean by “cultural resource
survey,” but in my experience, the term is often a fancy name for
archaeological survey. If this is what you mean, then I have to be very
concerned about whether you will pay any attention to those “cultural
resources” that archaeologists are often ill-equipped to recognize –
for example, places where people traditionally fish or collect
shellfish, food or medicinal plants, and places associated with the
activities of the “Taotaomona.”
Stipulation V.B introduces the term “best management practice.” It
is not clear to me what you mean by this term, which is commonly used in
water resource management by the Environmental Protection Agency and
others (c.f. National Menu of Best Management Practices (BMPs) for
Stormwater | National Pollutant Discharge Elimination System (NPDES) |
US EPA [1]). My impression is that such a practice is RECOMMENDED but
not MANDATORY. But you go on to say that you “will” do specified
things, which vaguely suggests that you actually intend to do them.
Please clarify.
The first “best practice” to which you (perhaps) commit yourself is
to conduct “cultural sensitivity training” for a wide range of
personnel. This may be a good idea, but nothing in the rest of the
agreement, or in any of the accompanying documents I have seen,
demonstrates that you know anything about the cultures toward whom
incoming military personnel, dependents and contractors should be
sensitive – notably those of indigenous Chamorro, Philippine, Asian,
and Micronesian people. And as usual, you propose to “collaborate”
only with the SHPO in developing and presenting this training. Your
reference to “sensitive cultural material” in stipulation V.B.2.a
suggests to me that you equate cultural sensitivity with not picking up
artifacts or plundering graves. I wonder if you understand that CULTURE
involves things like language use, subsistence practices, and spiritual
values.
In Stipulation V.B.2 you promise to provide public notice of “major
training exercises.” Can you really be unaware of how insulting and
demeaning it is to the people of Guam to represent providing 24 hour
notice of substantial military operations as a means of managing and
mitigating impacts on historic properties? Especially when “notice”
is ALL you propose to do – you say nothing whatever about what you
might do if anyone has the temerity to respond to your notice by saying
that your operations are, for example, going to destroy a place where
their family has fished since time immemorial.
Stipulation VII is remarkable in its reservation to yourself of the
right to decide, unilaterally, what is eligible for the National
Register anywhere on Guam or its surrounding waters.
I could go on and on, but I really don’t think that there’s much
point. What you have created here is a document permitting CJRM simply
to have its way with Guam, its people, and their cultural heritage. This
is despicable. It is a travesty the SHPO and ACHP have allowed you to
foist such a document on the public as a “taking into account” of
effects on historic properties in the manner prescribed under Section
106.
I urge you to withdraw this PA from consideration and undertake real
consultation with the people of Guam about the effects of military
operations on Guam’s cultural heritage.
(Have an opinion or viewpoint? Share it with the community by having it published in PNC’s Viewpoint section! The views and opinions expressed in this section are those of the authors and do not necessarily reflect the official position of the Pacific News Center and the Sorensen Media Group. Any content provided by our contributors is their opinion. Submissions are subject to editing for length, grammar, and inappropriate content. Email your views and opinions to gerry@spbguam.com)
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