I recently finished the field portion of a project in western Kern County, in California's San Joaquin Valley. The project area was agricultural, and we were performing pedestrian surveys - walking the ground looking for archaeological sites - in preparation for a renewable energy plant that has been proposed for the area. We found a few small, unimpressive sites, and four large but even less impressive sites. Regardless of our personal opinions of the sites, it is the place of the agency to determine whether or not they are eligible for the register, and therefore worthy of some protection. Our purpose at this point in time was simply to record the sites and turn in the report.
Part of site recording is creating a map of the site. In order to create a map of the site, it's useful to have a datum point - an object or location within the site from which the bearing and distance to all other points can be measured, and which can serve as a landmark for people attempting to re-locate the site. Usually the datum point is something like an upright pipe, or the corner of a building, or a noteworthy boulder, etc. etc.
In this case, the sites were all in agricultural fields. The area was flat. There were no noteworthy features...or, really, any features at all. Here, have a look:
So, we were a bit stuck when it came to datum points, and had to resort to using items that were on the margins of the fields and outside of the sites. This led to one of the field techs suggesting that we pound stakes or rebar into the ground to serve as a site datum - a practice that is common in certain types of terrain. I replied that we were not going to do that - again, these were farmer's fields, and these fields, while fallow at the moment, were circulated into cultivation on a regular basis. Pounding a wooden stake or piece of rebar into the ground would be futile at best, and dangerous to equipment and workers at worst.
"But," the field tech protested, "there's a site here. They can't farm at this location!"
Yes they can. And they will.
"But the site's protected under the law."
Not quite. The people proposing the energy facility have to meet the requirements of the California Environmental Quality Act (CEQA), meaning that they have to take into account their actions on archaeological sites. The farmers, on the other hand, are not applying for permits or money, and therefore they are under no such requirement.
"We can't allow them to farm over an archaeological site!"
We can't stop them. Besides, these sites have survived nearly 150 years of agriculture and I sincerely doubt that next season's plowing is going to sound their death knell. But even if it would, the fact remains that the farmers have a legal right to continue farming, and there is no legal mechanism to prevent it.
"The farmers agreed to protect any sites found!"
No, no they didn't. They are not signatories on any agreement that allows land ot be taken out of cultivation for the protection of archaeological sites.
"They have to have agreed to it! Why else would we be out here?"
We were out there because the energy company that wished to find land on which to develop an electricity-generating facility is applying for permits from an agency that requires them to follow CEQA. That developer and not the farmers is required to comply with CEQA. The law is about process and about stakeholders, not about land or outcomes. Land will not be taken away from farmers, but it would be avoided by developers. It's a compromise, yes, but it's one that allows necessary activities, such as food production, to continue, while also preventing un-necessary destruction of historic resources. Could it be better? Yes. But it usually works pretty well.
This scenario plays itself out at least once during every project in which there are more than three people in the field. One person on the crew thinks that they understand the regulations when they don't, and insists on the rightness of a very wrong position. I often wonder how many of the mis-conceptions spread about environmental law are due to people who don't work directly with the regulations mis-informing the public. Certainly much of the confusion is due to the fact that the laws are, really, just plain confusing, and much of it is due to people intentionally misinforming others in an attempt to discredit the laws, but having people who are in the rank-and-file of compliance archaeology misinforming people doesn't help.