I Hate Regulatory-ese

One of the big problems that I have in writing reports is the often confused language that one sees within the laws and regulations.  For example, any archaeological site, historic building, or place of strong community importance is a "cultural resource."  Under California's environmental law, any cultural resource that is eligible for listing on the California Register of Historic Resources is a "Historical Resource" which includes prehistoric sites.  However, archaeologists have long (as in well pre-dating the origin of these laws) made a distinction between historic and prehistoric sites (historic sites were occupied by people who came from a culture that produced written records, prehistoric sites were left by people who did not leave written records).  But the term "prehistoric resource" doesn't mean anything in a regulatory sense, while "historical resource" means an important site/building/whatever that might be prehistoric, but might also be historic, and it sounds alot like "cultural resource" which is a generic term that says nothing about the status of the resource regarding the California Register. 

Under federal law and regulation, the term "historical resource" means a cultural resource that dates to after European contact with the Americas.  It doesn't mean anything regarding the eligibility for a cultural resource to the National Register of Historic Places (the federal equivalent of the California Register of Historic Resources).  So, if you are writing a report for a federal agency, you can describe a site as a "historical resource" without worrying about triggering any alarms regarding register eligibility.  If you are writing a report that will be reviewed by both a state and a federal agency (which is pretty common), then you simply have to avoid using the term altogether in order ot not be making claims about the eligibility of a resource for either register. 

The problem is made more annoying when you consider that we often have to talk about historic-era resources, historic-era sites, cultural layers, and cultural deposits when we are discussing archaeological sites.  So the terms "historic" and "cultural" are in very heavy use, and it takes frequent checking and care to ensure that we are not mis-stating things and using a regulatory term like "historical resource" (a site, whether prehistoric or historic, that IS eligible for the California Register) when discussing a "historic site" (which is a site with historic-era, but not prehistoric, materials that may or may not be eligible for the California Register).  the presence of the words "cultural" and "historic/historical" become meaningless until you see what word immediately follows it, and there is a high likelihood that it will be a word that gives the sentence in which is appears a substantially different meaning, while looking very similar.

It gets rather confusing.  Adding to the mess is that all of us have our own ways of keeping the different terms straight, but that each consultant and each regulator does so in subtly different ways, so the review process often contains far too much confusion regarding what, precisely, is meant by any given sentence, and a level of scrutiny is sometimes applied to each word choice that veers away from bordering on the silly and sails through loopy harbor out into the open waters of the sea of absurdity.

And yet you have to engage in this level of scrutiny in order to present accurate information that does not incorrectly make claims as to the legal status of a particular site. 

The language seems to be a classic case of decision by committee, where the wording was eventually agreed upon in order to not piss anyone off, and everyone was at that point too tired to actually give much thought as to whether the regulatory language might not cause further confusion. 

Argh.

Regulated Madness

As anyone who regularly reads this blog knows (and contrary to what I suspected before I placed traffic trackers, there's actually quite a few of you), I spend alot of time looking into regulations and case law to try to figure out how to apply historic preservation laws to specific projects.  Right now I am particularly confounded, though.

See, I have a project in the southern San Joaquin Valley.  This project involves historic-era archaeological sites that are related to the early use of the oil fields.  Now, back in the late 90s, the Department of Energy sold Naval Petroleum Reserve 1 (which is about two miles north of my project area) to a private company, and in the process had to go through the environmental revue process.  During this process, rumor holds that they developed a good set of criteria for determining whether or not a historic-era oil field site was eligible for the National Register of Historic Places, and therefore would gain some (admittedly minor) level of protection, and that the State Office of Historic Preservation agreed to these criteria in a programmatic agreement. 

Now, the project that I have is not on the old Naval Petroleum Reserve grounds, and therefore these criteria would not be directly applicable to my project, but they can provide guidance on how to apply the regulations in similar environments within the vicinity of the Petroleum Reserve grounds.  It is, essentially, a matter of hunting down precedent.

Which makes my current task as necessary as it is frustrating.

You see, the studies and documents that I need to find were produced in the late 90s, as federal agencies were beginning to gain a strong online presence, but before the early 2000s shuffling of various federal responsibilities under Bush.  In other words, it came into being during that magical internet time when all web sites had blue balls to illustrate bullet points (mind out of the gutter!), Geocities and Angelfire were where it was at, and federal agencies were sure that they needed to do something with this internet thingy, even though they weren't sure what, exactly.  So, I can find the Record of Decision in the Federal Register that describes the project and the documents, I can find the public comments to the documents, and I can find agency comments for the documents from the Bureau of Land Management and the Department of Energy...but I can not find the document itself.  I can't even find PDF copies of one of the several documents to which the document I need would have been an appendix or attachment! 

Now, this wouldn't be bad if I could get a hard copy of the document.  But here's the problem - if I make a formal request to OHP or DOE, my project will be due before I actually hear about the possibility of receiving the document.  I could conceivably call one of my contacts at an agency that works with the documents, but I have already found that most of them are out of the office for extended periods of time on their own projects.  And the people I know at private companies who could get me a copy are currently so buried under their own work that they rarely respond to emails or phone calls anyway.

So, I continue trying to find it by some other sneaky way.  Oh joy!

Monitoring and Pondering

I apologize for not posting so far this week. I have been monitoring construction in Fresno County, and working 10-12 hour days, so I have not had much time to write.

However, this monitoring project has got me thinking about the way that we mitigate impacts to cultural resources, including archaeological sites, and wondering about what is and what is not necessary. In this case, this is a location that had been surveyed for archaeological sites prior to the beginning of construction, and nothing was found. After the initial surveys, a few additional surveys were performed to spot check a few areas about which the regulatory agency issuing the permits for this project was concerned. Again, nothing was found. The area is located on the floor of the San Joaquin Valley, away from water sources and not in or near any known travel corridor that the people of the area would have used. In other words, the location was unlikely to hold any archaeological sites (in the professional jargon, we call this a low sensitivity area). Nonetheless, the permit-issuing agency either advocated or agreed to archaeological monitoring as condition of the construction permit. And I am left wondering why.

The project proponent has a good track record for protecting archaeological sites and environmental resources, so this is likely not a case of the agency not trusting them to do what they are supposed to do (report any sites that they encounter during construction). The area is, as noted, of low sensitivity, so it's probably not a case of the agency being concerned that archaeological sites are likely to be hit. So, I am left wondering, why is there a monitoring requirement?

This is one of those odd cases where I can think of many reasons why this requirement exists, both bad and good reasons, and yet there is nothing in the documentation that explains the decision. It makes it especially awkward as, being the monitor on-site, many of the construction personnel seem to think that I should explain and/or justify my presence, and yet I would not have put a monitoring requirement in place were it my decision - again, no known resources coupled with a low sensitivity, I have a hard time justifying monitoring - so I simply tell the people who ask that it is a permit requirement and refuse to elaborate further. But, again, if the justification were written into the documents, then I would be able to make a better explanation.

The Register and Controversial Sites

Doing some research a little while back, I began looking up locations that met the criteria for listing on the National Register of Historic Places (NRHP), but where I suspected that controversy surrounding the meaning/role of the places might block them from having actually been listed. Somewhat to my surprise, I found that most of those I thought of were either listed, or at least had been recommended as eligible for listing*.

Probably emblematic of this is the Stonewall Inn, a prominent 60s-era gay bar in New York which was routinely raided by the police. One night, in 1969, a raid did not go as planned, and riots began. The riots were, in many ways, the ignition of the modern gay-rights movement. Whether one is in favor of or against gay rights, it is hard to argue that the movement hasn't had a strong impact on U.S. politics and society since 1969, and therefore has affected "the broad patterns of history", which is the criteria for listing a place on the National Register for it's role in/contribution to historic events.

I have discovered that telling people that the Stonewall Inn is on the NRHP usually gets one of two reactions: 1) for people who are in favor of gay people having the same rights as everyone else**, it seems appropriate that the location so closely linked with the start if the gay rights movement should be listed; 2) for people who are opposed to gay people having the same rights as everyone else***, finding that the Stonewall Inn is listed leads to reactions ranging from irritation to outrage. There is this notion that NRHP listing somehow puts a mark of approval or acceptance on a location.

But this isn't the case.

Listing on the NRHP is rather like Time Magazine's "Man of the Year" - it isn't an endorsement or an accolade, but a recognition of the impact that a place or events associated with it has had on history****. This impact can be good, it can also be bad, or it can even be neutral but pervasive. This seems appropriate - what seems bad or controversial now may seem like the obviously right thing to do down the line (remember, ending slavery was controversial enough that it contributed to the breakout of the Civil War), and remember things that are either controversial or even negative but influential is necessary to maintaining an accurate view of our past and not creating false legends.

It's important to remember that we are shaped just as much by our desire to maintain the status quo, often (perhaps typically) unthinkingly, as we are by a desire to improve things. Aspects of our past which we would like to not think about, regardless of the reason, are nonetheless important. What's more, one group's abomination may be another group's shrine. I like the fact that the NRHP is not a monument to our greatness as a nation, but instead is a reminder of the various types of things that have shaped us. While I think that the Stonewall Inn stands for the start of something good, even if I didn't, it would still belong on the register because it is difficult to imagine current politics and religion without the outcome of the riots. Likewise, places associated with people who I do not hold in esteem, but who nonetheless altered the United States in significant ways, also belong on it.





*This is a bit of an arcane regulatory thing. Actually having a property listed on the NRHP can often be something of a drawn-out process. As it is federal agencies that usually do the work, and the process can take a fair amount of time and money, the regulations that protect cultural resources protect both those that are listed and those that have been found eligible for listing, even if they are not actually listed. This can save time and money on the part of federal agencies, and it also provides some (admittedly limited, as the historic preservation laws have no real teeth) protection to resources that haven't been listed but are known to be important.

**In other words, people who don't think that someone should be penalized for no reason other than old superstitious dogma.

***In other words, people who believe old superstitious dogma, regardless of how they try to rationalize it.

****True story - Time magazine has listed some truly vile individuals as the "Man of the Year" not because the magazine endorsed them - often the accompanying articles have been extremely critical - but because they made a huge impact. It is worth noting, though, that both Time and the NRHP can sometimes bend to political pressure and not list something important but unpopular.

How the System Works

A friend of mine recently forwarded me a newspaper article about a land developer that was doing work on lands held by the Bureau of Land Management, and the BLM had bowed to political pressure and this developer had been "allowed" to hire their own company to do the environmental impact report. She was livid that the BLM was making an exception for this company and allowing it to hire the people who would determine whether or not the company's activities would have negative environmental impacts.

You can only imagine her reaction when I informed her that the BLM was not bowing to political pressure, that project proponents (that is, the people or organizations wanting to do a land development project) typically hire their own consultants to to the environmental impact statements (in fact, that's a primary reason why companies such as mine exist), and that this was not a case of a large company getting something special because of political ties, but rather was simply the normal mechanics of how a land development project proceeds.

This does, admittedly, sound pretty bad. Even when nothing nefarious is going on (and after many years experience in this field, I have learned that things are usually on the up and up), the fact that the people performing the environmental analysis for a project were hired by the people who want the project to go through does look pretty...well, strange. There are three things that one should know about this, however.

The first is that those of us who do the environmental work are consultants to, and not employees of, the proponents. This may seem like a fine distinction, but it is actually quite important. We are expected to understand the relevant laws and regulations, and to explain to our clients how they have to behave to keep in compliance with them. If the regulations say that "activity X must be proceeded by precaution Y" then we explain this to our clients. Our environmental review documents are just as much prescriptive ("in order to avoid impacts, the project proponent must take these precautions...") as descriptive (simply describing the environmental impacts of a project). Now, that's not to say that there isn't room for corruption in the system, there certainly is (and I know of a few archaeologists who I suspect are on the take, based on some of the results that they have put into reports), but it does mean that we don't have the same pressures on us that a direct employee of the company would. So, yes, there is room for corruption, and the fact that a project proponent is paying for the environmental review does look rather off, but it should be understood that the purpose of the environmental review process is to document potential problems, relevant regulations, and define the terms under which problems will be avoided or mitigated, not simply to give a thumbs up or thumbs down to the potential for a project to have environmental impacts.

The second thing is that these reviews are not done in a vacuum. As part of the review process, stakeholders must be identified - community groups, Native American organizations, individuals whose homes or property might be impacted by the project, historic societies, recreation groups that make use of an area, etc. The outreach to these groups can be done poorly, and often has been, but it is something that is part of the environmental review process. When you hear about how a project was halted because of environmental concerns, it's usually because one of these stakeholders (or somebody who should have been identified as a stakeholder) has terminated consultation and is seeking legal action. Identified stakeholders are given the ability to review documents, to ask questions, and to provide comments that can (and often do) result in further review or mitigation work being done. In other words, just because a large company hires the consultant to do the environmental review doesn't mean that the documents stay between the consultant and their client, they are reviewed by stakeholders, and often put out for broad public review, in order to allow for comments to be received regarding the level of effort, and anything that might have been missed (or excluded) by the consultant who prepared the document.

The third thing that should be kept in mind is that this review process is not unsupervised. All documents must be received and reviewed by the government agency that is providing the permits/money/donkey rides/whatever that the project proponent needs. Normally the documents are reviewed by a specialist at the agency (so, an archaeologist who works at the agency will review all archaeology materials, a biologist all biology reports, etc.), and the agency must sign off on the report before it is finalized. In some cases, the agency may hire a consultant of their own to help with this oversight, which often results in a rival company overseeing the work of the other - having been on both sides of this, I can tell you from experience that it does lead to a heightened sense of responsibility on the part of the proponent's contractor. Consultants who have a tendency towards corruption tend to draw the attention of the federal agencies, and there have been cases of people being pushed out because of this (probably not as many cases as there should be, but still), so most consultants feel a stronger need to keep on the good side of the federal regulators than to keep on the good side of any one client.

Now, there has been talk of ways of reforming this system, such as the proponent paying a fee to the agency and the government agency hiring the consultant who does the review, to remove the appearance of subservience to the proponent. These sorts of solutions all have problems of their own, but I appreciate the notion behind them. Regardless, the system, as it exists, is not simply a matter of "proponent hires consultant to say what proponent wishes" - the system is more complicated. Not to say that there isn't room for vast improvement, but it's not the horrific mess that many people seem to feel.

When Terminology Irritates People

A few days ago I stood in a construction trailer while another archaeologist, my superior at the company for which I work, explained the process of testing an archaeological site for eligibility to the National Register of Historic Places. In order for a site to be eligible, it must be relatively intact (or, in regulatory terms, "maintain integrity") and also "have significance", that is, it must meet one of the criteria for listing on the register (see here for a description). Because the regulatory language states that the site must "have significance", archaeologists often refer to this process as significance testing, and often refer to register eligible sites as significant.

As my superior was explaining this process to the project engineer, I looked over at the Native American liaison for the project, herself a member of a local tribal council, who whispered to me "I hate the term 'significance'."
Later that day, as I dug holes in the site, the Native American liaison came by to see how we were doing. She and I got to talking, and the subject of regulatory terminology came up. While she acknowledged that the term significance was used because it has a specific regulatory meaning, she felt that it was a term loaded with other meanings, and therefore she found it upsetting. As she put it, just because a site doesn't have research potential for archaeologists doesn't mean that it is insignificant for Native Americans, and the use of the term implied this, whether or not that is intended.

I think that she's right. While the term has a specific regulatory meaning, it is often used in contexts and discussions where only a small portion of the participants are familiar with the regulations, and therefore it is likely to be understood more broadly than it's regulatory meaning. What's more, we have a perfectly acceptable (and arguably more appropriate) term that we can use: register eligible. In the end, when we describe a site as significant, what we are actually saying is that it is eligible for the register. This being the case, why not simply say "register eligible" and be both more precise and less likely to upset or offend the Native American community.

Don't get me wrong, I am usually annoyed by people who demand that perfectly legitimate terms be used in order to avoid offense. But, in this case, the nature of the offense is due to the term being understood by it's normal rather than specialized meaning, and there is a more precise and arguably better substitute. Personally, I think that I will change the way in which I speak.

Tactless Tactics

One of the more frustrating aspects of working in environmental consulting is watching your work become a part of the political football game that surrounds many major projects. For example, several years back, I worked on a transmission line project in California's San Joaquin Valley.

The purpose of the project was to upgrade the existing electrical grid to account for population growth (and hence increased power construction) in the county. There were several potential routes, and the environmental crews were performing review activities to determine which route was the most environmentally feasible. As I performed the archaeological surveys for the project, I routinely encountered land owners (including home owners, farmers, and ranchers) who made it clear that they felt the project was necessary and even a boon to the community, but who routinely informed me that they would fight tooth and nail to make sure that the project crossed somebody else's land.

The fighting involved professional attacks against my work. A group of land owners denied access to my crew, preventing us from surveying these locations for archaeological sites. So, with no other recourse, we used a combination of older archaeological reports and records, historic photos and maps, and current topographic maps, as well as observations made from public roads, to gain a rough idea of the likelihood of finding archaeological sites in these areas. The report that was finally produced stated clearly that the estimate was rough, and that it was no substitute for a careful archaeological survey, and that such a survey must be performed before anything could be built.

Well, the landowners who had denied us access got hold of a copy of the report, saw this, and then contacted members of the local Native American tribal organization and the head of the local historical society, claiming that the project crossed through a known native village site (not true, the village site was several miles to the north of the proposed project area) and that my crew and I didn't perform any analysis of the area in question and claimed that a "windshield survey" (where you drive through the area and look at stuff from the road, which we did admittedly do as a part of the larger analysis) was sufficient (which we very definitely did not claim, the exact opposite was stated in the report, in fact). A letter containing these, well...let's call them dubious statements*, was sent to the tribal organization and the historical society, who then complained to the state agency in charge of licensing the project. The next thing I know, the agency's environmental office is demanding an explanation for my alleged malfeasance, which is odd as had they bothered to actually read the document in question (and which was sent to them before it was sent to anyone else) they would have found that the claims being made about the report were completely untrue.

Luckily, my boss knew the historian, so I was able to call her. Once I had her on the phone, we had a very strange conversation in which she started by telling me how terrible a job I had done and how poor my professional ethics were, but as I walked her through the report and the information contained therein (and pointed out the page numbers where it was shown that we were unable to perform a pedestrian survey because the very same landowners who had gotten her worked up had denied our crew access to the land), she began to change her views and take my side. When all was said and done, she asked for a few changes to make it clear that any route selected would be subject to pedestrian survey (which was already stated clearly and prominently multiple times in the report, but I was willing to play politics enough to include it yet one more time), but was otherwise satisfied that we had done the best that we could, and that there may be more to the situation than she had been led to believe.

The weird irony is that the other possible routes were riddled with archaeological sites and weird biology issues. The route where the landowners had denied us access was an unknown, but our preliminary analysis indicated that it was likely to be the worst of the all possible routes. The problem is that, lacking data, there is a possibility that the powers that be at the utilities company might eventually decide to take a gamble on the route for which little is known rather than sink money into mitigation for the other routes, and the stunt with the lying about the studies hurt the credibility of the opponents of the route. The effects of the attempt to prevent construction of the route by denying access and lying about the contents of the report are still unknown, but there is a possibility that it may result in these people losing land in an eminent domain grab and essentially backfire. Time will tell.




*A polite way of saying "slanderous bullshit told by liars with no sense of morality and a desire to get their way even if it means screwing other people over." Not that I have an opinion, or anything.

Uluru, Lawsuits, and Culture Change

So, this entry is somewhat inspired by the last one, but covers somewhat different ground.

While a graduate student, I met Eve Darian-Smith, an Australian anthropologist who had, in her previous career, been an attorney in Australia. In a conversation with her, she told me about Ayer's Rock, known amongst the Pitjantjatjara people of Central Australia as Uluru. The landmark, and impressive stone monolith rising above a plain*, has been a draw for tourism for decades. It is also a sacred site to the Pitjantjatjara people, and this led to a confrontation between Aborigine groups, Aboriginal rights activists, and the Australian government, which was settled in 1985 when the title of the land on which the sandstone formation stands was deeded back to the local aborgine group, and the national park that had formed around it was leased to the Australian government for 99 years to be joint-managed by the national government and the aboriginal people.

Image from Wayfaring.info

Now, this seems like a good outcome, on the whole. One thing, though, that Dr. Darian-Smith told me left me thinking about potential problems. At some point during the legal negotiations, it was argued that the Pitjantjatjara should only have control of Uluru if they were going to use it only for activities "practiced in the traditional manner." I don't know if this became part of the final legal settlement - my web-fu is weak and I have been unable to find any confirming or disconfirming information, and I don't know enough about the Australian legal system to make much of the information that I have found. But regardless of how Uluru ended up, the fact that such a thing even entered the discussion is both fascinating and disturbing.

The problem comes from people outside of a culture arguing for what is the "traditional" patterns of that culture. I wrote in the previous entry about how Dr. Darian-Smith found in her research that people living in California often object to Native Californian-owned businesses (she focused on casinos, but it is likely that this applies to other businesses) on the grounds that running a business is not in keeping with the traditional values and practices of Native Californians. Of course, prior to the arrival Europeans, the archaeological and ethnographic evidence indicates that many Native Californian groups engaged in the production and trading of goods in a manner that showed all of the intelligence and calculation that one would expect from any European businessman of the same period. Moreover, the Native Peoples of California (and the rest of the Americas, and Australia, and Africa, and Asia, and Europe, and everywhere else that humans have wandered to) were very adaptable, and both developed new ways of coping using a mix of existing practices and technologies as well as developing new ones, and adopted new ideas, tools, and practices when they became available. While I suspect that there is a good deal of argument within Native American communities regarding casinos specifically, I doubt that there is much argument regarding the ability of people to make good in the modern world, or even that to become knowledgeable about business, law, science, etc. is somehow anathema to being a Native American, nor is the use of new tools necessarily frowned upon. While I am less knowledgeable about the anthropology of Australia, I suspect that the same is true there.

Historically, I know that the Native Californians (and the Natives Floridans) were happy to accept glass beads from the Spanish and integrate them into the bead economies that already existed. Likewise, I have spoken with members of different Native Californians who tell me about collecting acorns for the preparation of traditional foods, but smashing the acorns using a blender rather than a bedrock mortar. And I have now met several Native Californians who are getting involved in archaeology and ethnography in order to build up a history and understanding of their heritage based on these disciplines, in addition to that which they receive from oral traditions. Reading journal articles published on the anthropology of Asia, Australia, Africa, and south America, I see the same things occurring in these regions. Culture changes, but that doesn't make it somehow non-traditional: it is the nature of culture to change.

Really, this is the way that it has always been. In the archaeological record, the use of tools, residence patterns, and pretty much everything that makes up material culture are constantly in flux, changing due to the environment, the needs of the people who formed a society, and the introduction of new tools and ideas from outside. Humans have always adopted new concepts and items and incorporated them into the existing culture, changing the culture - sometimes slowly and sometimes quickly - but never losing it. The culture of London today is no less "traditional" than it was in AD 1710 or AD 1410 or AD 1110, but we assume it is because we think of the "modern" as being opposed to the "traditional". But they are not opposed, the modern is merely a continuation of the old, and even the movement of cultural traits across the world - sometimes referred to as an aspect of globalization - is nothing but a continuation of the ways that humans have always behaved. That doesn't mean it's necessarily either good or bad (I have a hard time seeing the proliferation of coal-fired power plants as good...but the use of new technology to provide clean drinking water in Africa is definitely a positive thing), but it does mean that the knee-jerk rejection of it as an attack on tradition needs to be more carefully considered. It is an attack on traditional culture when someone is currently being forced to give something up by force or threat of force (it was - past tense - an attack when it occurred in the past, what happens after the attack stops is the aftermath - which may or may not be bad - but it is not the attack itself), but when people adopt things because they want them...well, trying to stop that in the name of preservation is an unnatural act.

Which comes back to the possibility of laws or regulations being put into place which require the use of lands only in keeping with traditional use. The story of human culture is a story of change. To hold that something is only legally allowable if it conforms with traditional culture is to create an artificial (and, it should be noted, essentially modern) definition of traditional culture. And in these cases, traditional culture almost invariably is either defined by an outsider or by those within the culture group who have a particular agenda, and can not ever really reflect the truth of a culture. culture is living and dynamic, and to enshrine some version of it in regulation turns it into a stagnant parody of itself**. Regulations and laws can be, and have been, written that take the inevitability of change into account, and those are the models that need to be followed.








*Interesting bit of information - this formation is what is called a inselberg, or "island mountain", the sole remnant of a larger mountain range that has long since eroded away. So, it is the last mountain of a once standing range of them...if that example of the deep time and monumental scale of geology doesn't send a shiver down your spine, get your pulse checked.

**This also applies to non-native/aboriginal cultures. When you hear someone talk about the importance of enshrining some practice in law because it matches "traditional values", you can be certain that the person is less concerned with tradition than with pushing their own, often absurd, agenda.

Looters

A friend of mine by the name of Scott once had a job performing archaeological survey and recording sites in the portion of the Sierra Nevadas in eastern Fresno county. He told me of coming across a rather large site, covered in bedrock mortars and a containing a large midden, and finding a man already there, apparently waiting for them. The man confronted Scott's team, and informed them that the site on which they were standing was his site, and that the survey team could go find their own.

The man, of course, was a looter, someone who illegally goes to archaeological sites and destroys them looking for collectible or sellable artifacts.

The site was located on public lands administered by the Forest Service, so his claim that he owned the site was laughable at best. Nonetheless, this sort of mentality is not uncommon. Many looters feel that they have staked a claim to a site and that anyone else digging into or even recording the site, even people authorized by the agency that manages the land, is a violation of some sort of code of honor - this despite the fact the looters are doing something that is clearly illegal and therefore in violation of whatever code actually does govern resources on public lands.

Scott, being new to field archaeology, didn't know what to do. He tried to explain that the crew was there on the Forest Service's business and that they were simply doing their job. The looter was having none of it - as far as he was concerned, this was his site and nobody else was touching it. As I recall, Scott and company left the site and came back later, when the looter was gone, to record it. They also reported the looter to the Forest Ranger.

I find myself thinking about Scott's experience now because I am reviewing site records and reports for the region in which he had been working at the time. Looting is much more common in these sites than in any other area that I have worked. Several of the reports discuss attempts to stop looting, and they run the gamut from capping the site with gravel (relatively effective, but expensive) to occasional monitoring by archaeologists and Forest Rangers (not quite as expensive, but extremely ineffective) to posting signs telling people not to loot (cheap, but about as effective as you'd think it is).

Looters occupy this weird place in the archaeology world. They are universally reviled by archaeologists, Native Americans, and most Forest Service personnel, but within their own ranks there is considerable variability. Some see themselves as archaeologists, not comprehending that they are employing unnecessarily destructive methods and that their lack of methodology and publication both ensures that data will be destroyed and that data which does survive will never be passed on. Others see themselves as a sort of frontiersman, making a living off the land by selling that which comes out of it. Others are essentially hobbyists, treating potsherds and arrowheads like other collectors treat baseball cards and comic books. I have met looters who feel that, as the land is public land, they have a right as members of the public to take from it whatever the please...and I have met even more who give this as a rationalization, but then become upset when someone else is looting "their" site. And some see looting as a way of "sticking it to the man", although they tend to be vague about the identity of the man to whom they are sticking it, which I guess goes to show that for some people it is best to rebel even if you haven't a clue as to against who or what you are rebelling.

So, really, the approaches to preventing looting will be more or less effective depending on who it is that is doing the looting. Simply putting up signs saying telling people not to loot, or listing the potential legal penalties for looting, may stop the hobbyists, while that may encourage the self-styled "bad boy" looters. Capping a site with gravel will stop many looters, but those who are making a living off of it may simply increase their activities to make sure that they get enough from their activities to justify the effort.

But the role of looters is a bit more complex still. Often, they don't know that their activities are illegal, and many of them don't understand that there is a difference between looting and controlled archaeological excavation. I have met a number of professional archaeologists who once were looters, but who came over to the "light side" when they became more curious and decided to learn about the sites that they had been digging up. When I work with these people, their attitude towards looters is somewhat schizophrenic - they tend to become upset over the damage done by looting, but they can identify with the looters and that either tempers their anger or stokes it, depending on the individual.

Ultimately, the problem with looters from the perspective of an archaeologist and a member of the public is that they are essentially stealing from public lands and doing it in a way that destroys the cultural resources on those lands. Even if the individual artifacts that they take weren't at issue, the fact that they destroy sites to get them would still be a problem.

Research vs. Management

I have had the strange experience these last few weeks of being confronted face-on with the difference between research-oriented archaeology and management/compliance-oriented archaeology.

I have been out in the Mojave again - called out at the last minute to help define the boundaries of archaeological sites in order to ensure that they will not be harmed by planned construction activities, in this case, the use of specific dirt roads to get to and from construction locations. This means that I have spent the last two weeks digging 50-centimeter wide holes, sifting the soil through metal mesh screens, and making a catalogue of what was found, and then filling the hole back in.

And those of you who were in the Army probably thought that you were the only people required to continuously dig holes and fill them back in again.

This process is not nearly as arduous as it may sound when you are finding archaeological materials or when the soil is easy to dig and to screen. But digging through it is a bit like digging through concrete. So, we have had long days of hard physical labor. One the one hand, it is commendable that my client is going through such trouble to make sure that it doesn't damage any archaeological sites. On the other hand, my hands, shoulders, and back have probably aged ten years in the last two weeks.

Simultaneous with this field work, I have been working on a paper for publication in an archaeology journal. It is based on my Masters thesis, and represents and effort to reconcile two strands of anthropological data that are frequently at odds with each other. While working on the paper, I have been reminded of both the difficulty of doing the work that resulted in my thesis, and also the intellectual pleasure that I took in analyzing the data and writing the document.

Or, put another way, I have been reminded of what originally attracted me to archaeology in the first place.

It's a bit demoralizing to be working on a project that is regulation/management-driven and so far way from any real archaeology while simultaneously working on a research project. I know that not all of my projects are like this, and that my line of work has allowed me to dig up airplane crashes, cling to cliffsides, climb mountains, get whisked around in helicopters, and all kinds of other groovy things. However, at the moment, I am feeling a bit low, and wondering why I didn't become a dental hygienist.

So it goes.

Avoidance

I am currently in the field helping with some basic avoidance and mitigation work. The way that the process goes is as follows:

Once we have identified archaeological sites, we notify our client and the relevant government agencies (those that issue permits or money or both). The client then generally has one of three options*: determine whether or not the site is avoidable for a state or federal register of historic places, and therefore requires mitigation or avoidance; or just avoid the site to begin with.

I have written about determining site eligibility before. So I'm going to talk about avoidance here.

Avoidance seems pretty straightforward, and sometimes it is. Sometimes it's as simple as "Hey, if you move the road 10 feet to the west over here, then you avoid a site!"

Sometimes it's not. First off, you have to know precisely where the site is in order to avoid it. This is not always simple. For example - if a site is largely buried, then what you see on the surface is just the tip of the iceberg, and determining where the site is, and therefore what must be avoided, requires digging many, many holes and simply seeing if there is anything under the surface. And how deep you have to dig (and how difficult it is to do so) depends on the erosional history of the landscape. For example, I once had to dig a hole that was 50 cm (about a foot and a half) around, and I had to go down 2.5 meters (about eight feet). In the end, most of the upper half of my body was in a hole, while I used two shovels like a pair of claws to pull rocks and soil out of the bottom of the hole. And, despite layers of sterile deposits, I found the buried site at the bottom of the hole.

In addition, you have the question of what the government agencies with which you are working consider to be a single or multiple sites. For example - I worked with one agency archaeologist who wanted a group of five different sites listed as one site, as none was more than 200 feet away from another. A few years later, same agency but with a different archaeologist, wanted all sites that were more than 150 feet apart separated into different sites. So, the boundaries of the site changed not because the site itself changed, but because of agencies direction. When they were gathered together, it might have been permissible to construct where there were no archaeological materials, but it might also not have been, depending on the views of the agency archaeologist concerning the relevant laws.

Then, once you know where the site is, you have to figure out how to avoid it. again, the most straightforward answer is to simply move what is being built, and this is usually what happens. But not always. If a site is to be covered with something such as a temporary access road, or a feature that doesn't require much ground disturbance, it might be acceptable to simply cap the site with gravel. The gravel takes the punishment, and can be dug through if it becomes necessary to access the site later.

A more controversial measure is to cap a site underneath a proposed building. For example, in the town in which I reside, there is at least one major building that has been knowingly constructed on top of a prehistoric archaeological site. The project engineers avoided damage to the site by building up several layers of earthen pads, and placing the building's foundations in these pads, thus avoiding damage to the site itself.

On the one hand, this does protect the site - it is not damaged, and the presence of the building is likely to prevent problems such as site looting.

On the other hand, the legal rationale usually given for protecting sites is that they may yield information important to the study of human history, and are therefore eligible for the National Register of Historic Places under Criterion D: data potential. And, well, if there is a building on top of the site, the odds of successfully studying the site are something close to zero.

One further problem comes in when you consider that a site might be considered eligible for the National Register of Historic Places because of a particular feature or attribute. If this is the case, then there are two schools of thought: 1) the site is eligible, and therefore must be protected in it's entirety; 2) the site is eligible because of a specific aspect of the site, and as long as that aspect is not changed, damage to other parts of the site is acceptable.

I tend to fall into category 1, as do most archaeologists. However, I have come across agency archaeologists who go for category 2, and have been told that it is acceptable to sacrifice certain portions of eligible sites because this will not impact their eligibility in legal terms. There are usually good reasons for this - it allows the protection of some portion of the site, when it would otherwise have been even more heavily damaged - but it always seemed to me to be a bit like using the letter of the law to defeat the spirit of it.

Anyway, I don't know if this is of any interest to anyone outside of my field, but it's a little bit o' the archaeological world that most people aren't familiar with.





*Please note - there are many exceptions

Alleged Worst Case

When I worked in Santa Barbara County, I would frequently be called out to consult on City of Santa Barbara projects. these were public work projects such as the construction of roads, replacement of sidewalks, construction of sewer lines, etc. One of the planners, a fellow whose name I can not recall (which is just as well, as my sense of ethics would prevent me from including it here without his permission), would always ask the same question:

"What is the worst case scenario, from a historic resources standpoint?"

Each time the conversation would play out the same way. He'd ask the question, and I would talk about what was likely to be found. For example, I was once asked to explain the "worst case scenario" for a new sidewalk installation. I explained that the proposed sidewalk was on a road that traversed a steep hillside with no rock outcrops or caves, meaning that the odds of there being an archaeological site was very, very low. Therefore, I couldn't conceive of a "worst case scenario."

"Well, what if we find an Indian cemetery while working?"

I then explained that this was rather unlikely, as people who don't have heavy equipment tend not to bury their dead on 60 degree slopes with no caves or rock outcrops.

"What if this was the exception? What if there was someone really important and special, and they made the effort? What if this was a group that thought it was religiously very important that everyone be buried in a steep hillside?"

And so it went.

This was typical, I would be asked to give a worst case scenario, and when I explained why the situation wasn't dire, I would be faced with a question about an absurd situation which I could pretty much guarantee would never happen, and I was asked to provide a full plan for how to deal with it, complete with budget and schedule (seriously, I was sometimes asked for a budget and schedule for dealing with things that didn't even exist).

The problem is that if you are going to play the "we have to think everything through, no matter how unlikely" game you will never reach an end point.

What if you find the site that provides actual, legitimate proof that the Knights Templar fled France and settled in California? What if you encounter the remains of a neanderthal who managed to migrate to the Americas? What if you find a site that contains clearly unearthly material, proving aliens landed? It's absurd, it's silly, it's stupid to waste time considering it, but if you are going to consider every possibility, no matter how far-fetched, you can't rule it out.

The problem is that, in archaeology, even things that are likely can't be worked out until they are certain. If we do find a burial ground, I can't say how it will be dealt with until the most likely descendants are contacted and consulted, the number of burials is known, and the potential for modifying the project to avoid impacts is assessed. In other words, asking for a "worst case scenario" before anything has been identified in an area is a bit like going to the doctor and asking for a worst-case scenario before he has been able to examine you or heard you describe the symptoms. And you know, I can kind-of forgive construction contractors or land developers when they ask these questions. they may not have dealt with this before, and they may simply be trying to wrap their minds around it. But a city planner who has dealt with countless archaeological consultations? Different story.

This is a situation that I don't find myself in very often, but it does happen, and it's always annoying.

Information Centers and Confidential Information

Throughout the U.S., there are clearinghouses that store information on the known archaeological sites within each given state. The name and organization of these clearinghouses varies from state to state, but in California they are known collectively as the California Historic Resources Information System (CHRIS) and consist of regional offices that house the site records for the surrounding area.

Archaeological site location information is considered sensitive, as there is a long tradition of people looting sites. As a result, in order to get information from the clearinghouses, you typically have to show that you are either a legitimate and responsible archaeologist or the owner of the land on which a site is located, and you have to sign a confidentiality agreement. However, this creates a tension, as the rationale behind most of the laws protecting sites is that the sites are of importance to the people of the United States. So, we preserve them based on the premise that they are important to the people from whom we hide their locations.

This also makes it a bit of a pain to gather information on known sites within a given area. So, if you happen to be an archaeologist with a project in, say, northern San Luis Obispo County, you need to go through the process of having a record search done at the CHRIS information center in Santa Barbara, complete with confidentiality agreements, making appointments (or waiting for the info center personnel to have a chance to do the search for you), and a bit of a hassle.

To this end, many of the information centers around the country have been working to create digital archives of their holdings in order to free up space and make searches easier. This has resulted in a discussion within the archaeological community regarding whether or not to make this information available online.

The upside to online searches is that they would allow an archaeologist to get results within days or even hours, rather than the weeks or months that it currently takes. It would also reduce the overall costs of running the info centers (less workspace needed), as well as reduce the inconvenience to our clients when we are waiting for search results.

The downside is that site location information would be readily available to those who would like nothing better than to loot sites, destroying them in an effort to get collectable or sellable artifacts out of them. Certainly, websites can be password-protected, but these passwords only provide so much safety, and are routinely bypassed by those with sufficient knowledge - just ask anyone who runs a membership-driven website.

A few years back, I attended a session at the Society for American Archaeology annual conference on the issue of improving access and performance of systems such as CHRIS. One of the attendees, a representative of the the state historic preservation officer for one of the southern states (I don't recall which one) stated that we should simply put everything online, and that we are worrying too much about what "one guy with a shovel" can do.

But the problem is that "one guy with a shovel" can do alot of damage - most of the historic archaeological sites that I saw while working around Taft last year were heavily looted and disturbed, and I have been present on more than a few prehistoric sites where looters have nearly destroyed the entire site. It gets worse when you consider that, very often, we aren't even dealing with "one guy with a shovel", but rather with groups of people with shovels, backhoes, and (in at least one case that I know of) heavier equipment such as bulldozers. It bothers me that we keep site location information secret, but it bothers me even more that once a site's location becomes widely known said site becomes a magnet for looters who will use whatever equipment they can get their hands on to pull things out for either their personal collections or for sale.

It's a thorny issue - how do we maintain public communication while hiding some of the most basic information about a site - and one to which I don't have a solution. Until one is found, though, I don't see any alternative but to keep location information confidential.

Dirty Hands Environmentalism

I have addressed this before in footnotes, but it is something that has long bothered me, so I want to write an actual post about it.

Seven years ago, I took a position as an intern in the environmental conservation office at an Air Force base in southern California. I was still in graduate school at the time, and this was an ideal place to gain some nuts-and-bolts experience in the actual application of historic/archaeological preservation regulations. It was, on the whole, a good experience (if at times a strange one), and I do not regret having done it.

However, as soon as I signed on to do the work, I began to catch flak from some of my friends. So much of the reaction was based on knee-jerk political liberalism. People who knew my philosophical and political views seemed genuinely confused that I would work for the military.

But this confusion had more to do with people wanting to place a label on me (in this case, the label is "liberal" - a label that I reject) than with what was really happening.

The simple fact of the matter is that the military is one of the largest land-holding organizations in the U.S. This means that it has great potential to either preserve or damage environmental and historic resources. We can sign all of the petitions and attend all of the rallies that we like, but the simple fact of the matter is that if we are not willing to get in and work with the organizations that have the ability to impact the environment, then none of that matters. Whether you like the military or detest it (personally, I have more issues with the way that our elected officials use the military than I have with the military itself), the simple fact of the matter is that if you are truly in favor of the conservation of the natural and historic environment, you have to be willing to work with it. To refuse to do so is to cut off your nose to spite your face. When the military brass were serious about environmental protection, we helped guide them through a maze of often opaque laws and regulations. When they weren't, we had the tools to protect resources that were in danger.

I have since worked with and for many other organizations and industries that my friends tend to view with suspicion, especially with the petroleum industry. And I keep running across the same sort of accusatory questioning - how can you call yourself an environmentalist and work with those people?. And my answer remains the same: if you don't trust these people/organizations, then you should view me as extremely valuable - I'm the guy who can keep them honest. If they are as bad as you think (and they usually aren't, although sometimes they can be worse), if you don't trust them to follow the regulations on their own, then why are you giving me grief for making sure that they do? It is the height of hypocrisy to scream about the need for environmental protection and then to attack those of us who actually do the necessary work to see to it that the regulations are obeyed.

People who are honestly interested in historic preservation and environmental protection need to understand that it is not sufficient to forward emails, place "Go Green" stickers on your personal property, attend rallies, and talk about the evils of whatever organization is your bogeyman for the day. Rather than asking why I work with various different government agencies and private corporations, ask yourself why you don't. Yes, I work with organizations with rather questionable track records. Yes, sometimes I have to hold my nose while doing the work. Yes, I get my hands dirty, but that's because I'm working in the garden, not dining in the ivory tower. The simple fact of the matter is that none of the laws or directives make the slightest bit of difference of everyone who is in favor of them backs away when the work of implementing them needs to be done. If you are serious about protecting the environment, put down your silverware and haul your ass down here to work with me.

Drafting

All of the reports that we produce are submitted to the lead agency (the state or federal agency responsible for licensing, permitting, or funding a given project) for comments. The purpose of this practice is to provide the agency a chance to give feedback on the environmental review process before we finalize the work. Ideally, the report is done well enough that the agency provides few, if any, comments. Realistically, if all else fails, the agency folks will provide comments (sometimes accurate, sometimes not) about the grammar. Really, some of these folks are that bored.

More substantive comments are also common. When, as is not uncommon, one or two people produce a 400-page report (complete with all of it's appendices) in the space of two weeks, it is inevitable that something will be unclear or missing from the report, and agency comments will point this out.

On other occasions, an agency will allow someone who has no knowledge of the relevant subjects to review a document. In those cases, the comments are often nonsensical. For example, one report that my company submitted to a state agency was returned with a comment stating that the report had failed to explain how the proposed project would impact a known Native Californian village site. We responded by contacting the agency and explaining that the village site in question was six miles from the project location and was separated from the project location by a mountain range, and therefore there were no impacts. The agency responded by demanding that we explain how the proposed project would impact the village. We responded again by explaining the distance and the mountain range, the agency demanded that we explain the impacts (apparently failing to grasp that six miles and a mountain range is sufficient buffer to keep a graded dirt road from impacting a site), and so on for several months.

One state agency, which shall remain un-named, has even elevated abusive comments into an art form. I once received a comment from this agency informing me that a report I had written "has a whining, petulant tone that the reviewers found offensive." If you have ever read one of these documents then you'll know that the notion that they can have a tone other than "dry and boring" is comical. This same agency, one seeing the field schedule for an excavation project, wrote that "a quadriplegic without his wheelchair could dig faster than this!"

As amusing as those comments are, at least that particular agency has a reputation for knowing their own regulations and applying them evenly, correctly, and fairly across the board. In order to provide a contrast, I have to explain that when a report is submitted to an agency, it is called a "Draft" report, and will become a "Final" report once comments have been received and incorporated into the document.

Now for the contrasting agency. We work, routinely with a federal agency (that shall also go un-named) that has offices throughout California, and most of the people in most of these offices are good at their jobs and pleasant to work with. But every now and again we hit up against someone who isn't. In this case, we submitted a draft report for agency comments. The agency archaeologist took exception to this, apparently viewing it as an insult that we would submit a draft report and not a final report. So, they shredded the document and demanded a final report.

Of course, going by this agency's own processes, we can't actually generate a final report until after the agency has commented on the draft report. The report was, therefore, re-submitted with an explanation that we were waiting on comments so that we could issue a final report. The agency shredded that one and demanded a final report.

And so, we find ourselves in a position where we are being held responsible for actually following the agency's own requirements.

Fnord!

Negative Declaration

Several years back, when I worked for a different firm, a project manager sent me an email stating that "I need you to write a negative declaration for a reservoir project."

A negative declaration, to give a simplified explanation, is a document that states that an environmental study was performed and that it was found that the proposed project, in this case the modification of a reservoir, will have no adverse impacts to the environment.

Knowing this, I sent an email back to the project manager requesting information regarding the study. She responded that there had not been a study. I requested a copy of the records search results, figuring that there hadn't been a survey because one had already been performed previously. No dice, no record search.

Puzzled, I figured that there was one last chance. The reservoir was being modified on behalf of the county, so perhaps they had worked out a programmatic agreement, a legal document that specifies the measures to be taken to protect environmental resources in the event of various types of development or construction, and the terms of that agreement removed the reservoir from consideration. So, I asked and was told that no, there was no programmatic agreement.

So, I asked, being as how there had been no attempt to assess the presence of or impacts to historic sites, how was I to write a negative declaration? If I had no information to go on, I had no legal way to prepare a document stating that there would be no impacts. Before I sent my response, I double-checked with another archaeologist who had been in this business for decades to make sure that I had a correct understanding of the regulations. With confirmation that I was correct, I sent the email back to the project manager.

An email came back, saying (and I'm having to paraphrase): "why is this so difficult for you to understand? You need to write a negative declaration! The area's a reservoir, so there's nothing there!"

I again checked with the older archaeologist, and then I wrote back explaining that archaeological sites are routinely found within reservoirs (in fact, I can think of three reservoirs off the top of my head which contain National Register Eligible archaeological sites), and so the fact that this location was a reservoir in no way exempted it from review and study.

The response (paraphrasing again): "I promised our client a negative declaration! You need to write one, or I will talk with the vice president in charge of our division."

I responded by copying and pasting the appropriate parts of the state regulations into the email, the parts that the explain the conditions under which a negative declaration can be prepared, and concluding by stating that if she disagreed with the state regulations, I would be happy to discuss the matter with her and the vice president of our division.

The next day I received an email that said, simply "just write the negative declaration."

Having gotten tired of this, I decided that I would do what she asked, but not in the way that she asked. The negative declaration is essentially a form that states what measures were taken to identify environmental issues and any outstanding matters yet to be resolved, and so I filled it out, explaining in each appropriate space that nothing had been done to assess whether or not the project would impact historic resources, and stating that such an assessment was an outstanding issue that had to be resolved before construction could begin. When I sent this, I included, once again, a paste of the relevant sections of the state regulations, and I copied the vice president and my direct supervisor on the email.

The next day she backed off and agreed that I should go out and do the necessary record search and survey.

At the time I had thought that she backed off because she realized that I wasn't going to allow myself to be bullied into doing something that I knew wasn't right, and because I had called her bluff by letting my boss and our vice president in on things.

About a year later, as I was preparing to leave the company, we had hired a new archaeologist. She requested that he write a negative declaration for a new project. When handing the project to him, she said that she wanted him, and not me, to do it because I "don't understand that sometimes you just have to write a negative declaration."

So, I don't know if she was corrupt, incompetent, stupid, or some combination of the three, but she apparently didn't get it. I was happy to see, however, that the new archaeologist did manage to force her into allowing study as well. And he found a few important sites, making a negative declaration a bad idea.

No Management Necessary?

So, I am currently working on a project where we have to make management recommendations for the sites that we encounter. This can be rather tricky, as we have to balance the preservation of important historic and prehistoric sites with the necessity of completing an important energy project (in this case, getting renewable energy facilities on line). It's a hell of a lot better than last year's work in the oil fields, and the intellectual challenge can even be fun, but it's a tricky job nonetheless.

It also, however, once again highlights one of the tensions inherent in being an archaeologist in a resource management setting rather than a research setting. I have described the ways in which we have to evaluate archaeological sites in the past. The issue is that pretty much any and all sites are of potential interest to researchers (my MA advisor even wrote an article for The Journal of California and Great Basin Anthropology arguing that we need to not write off "small" or "limited" sites) because there is no limit to the research questions that academic archaeologists may develop, and therefore no limit to the types of data (or types of site from which they derive that data) that they might need.

By contrast, those of us in the management/compliance side of things have to make our arguments for site preservation based on the criteria of the appropriate federal or state regulations. These regulations are written to balance research interests (which usually wants site preservation) with economic interests (which often requires construction), and therefore, not every site can be protected. The appropriate laws do provide decent criteria to make these calls, which is nice as it gives us ground on which to stand when protecting sites, but there is no way that these criteria can cover every potentially interesting site.

Also, we on the compliance side have to choose our battles. As is, there are plenty of legislators and individuals and organizations that can afford to contribute large amounts of money to legislators who want the National Historic Preservation Act and similar laws repealed. If we fight on every site, and make construction and land development more difficult than it needs to be, we run the risk of tilting public opinion (which is currently in our favor) against us, and emboldening those sorts of attempts. But, of course, if we fold routinely, we make the laws toothless and irrelevant. It's a difficult line to walk.

So, I always feel uneasy when I tell someone that a site is not significant.

the Riverside Debacle

Native American consultation is a regular aspect of my work, and is a fact of life for anyone on my career path. I have had a wide range of experiences, everything from being told that I am a grave robber (ironically at a time when I was trying to persuade my client not to force a site to be dug into) to having the privilege of sitting in on elder's council meetings to hear what they have to say. On the whole, my experiences have been positive - CRM archaeologists such as myself prefer preservation over excavation, which means that we are usually, if not on the same frequency, at least in the same part of the radio spectrum as the Native Americans with whom we work. I know many people who can tell horror stories, and I even have a few myself, but most of my interactions have been professional and clearly oriented towards trying to make sure that everyone gets what they need.

And then, in 2006, there was Riverside County.

Riverside County, in southeastern California, had hired a new county planner. This planner either decided to do outreach to the Native American community, or was receptive when they came to him - I have never been able to get a definitive answer either way. Regardless, it was decided that archaeologists working in Riverside County or planning to work in the county would be required to attend a training/sensitivity workshop at a reservation within the county.

Many of my colleagues were displeased with this. To give a bit of background, there have been a number of federal and state laws passed that have required interaction between archaeologists and Native Americans. the best known is the Native American Graves Protection and Repatriation Act, better known as NAGPRA, which requires both that Native Americans be consulted when graves, burial goods, or certain religious items associated with federal properties or projects might disturbed, and that federal facilities inventory their collections and work at repatriating human remains and funerary and religious items*. Federal and (at least in California) state agencies are also required to communicate with Native American groups regarding activities that might disturb archaeological sites or the vaguely-name (and even more vaguely-defined) Traditional Cultural Properties (TCP).

In the wake of these laws, it has become more common for municipal and county governments to make an effort to interact with the Native American community. In fact, California's Senate Bill 18 requires that such be done when General Plans and Specific Plans are being created and/or revised.

So, in the wake of all of this, the government of Riverside County decided that they wanted to increase their cooperation with Native Americans within the County. To this end, they made a requirement that archaeologists working within Riverside County would be required to attend a training session with the Native Americans. Okay, so far, so good. This seemed like a pretty good idea to me, and like something that was, frankly, long overdue.

The problem is that the execution was rather poor.

For starters, in the days leading up to the meeting, the county sent out multiple contradictory statements saying that A) only project managers would be required to attend, B)Oh, sorry, scratch that, all field supervisors are required to attend, C)yeah, 'bout that, actually, everyone who might possibly ever be in the field in any position is required to attend, D) You know, actually, just the field supervisors after all, and finally E) only one archaeologist per company is required to attend**.

The meeting was held in a conference room at a reservation casino hotel. The hotel was a gorgeous place, and I had no complaints about the accommodations - both larger and more comfortable than my apartment, which was actually quite large and comfortable. And the evening before the session was quite pleasant, one of my co-workers enjoying the casino (and doing quite well at the blackjack tables) and me in my room reading.

The trouble started the next morning.

At the entrance to the conference room we obtained our name tags and spiral-bound books (common items at any sort of workshop or seminar). Upon entering the room, we found that all of the archaeologists were to sit on folding chairs behind long tables, while the county and Native American representatives all occupied a raised platform at one end of the room.

Now the raised platform may not sound like too big of a deal, but I have been to many seminars and workshops, and I can tell you that it is unusual in my line of work. In rooms such as the one into which we had been herded, there is nothing preventing someone even int he back of the room from seeing the speakers at the front if they are on the floor like the rest of us. The use of the raised platform sends a message, whether intentional or not, that we were not there to talk or interact, but to be scolded. We were all put on-guard from the get-go.

The first part of the day, leading up to lunch, was, despite the poor choice in room set-up, actually quite useful and productive. It essentially consisted of archaeologist (and cultural resource policy wonk) Tom King lecturing, and then interacting with the audience, on the areas of cultural resources law that pertain to Native American consultation. It was interesting and extremely valuable to those of us who were participating.

Then we broke for lunch. And then the second half occurred.

The second half consisted of a representative from Riverside County laying out the new guidelines and regulations for work in Riverside County, the Native American representatives scolding the archaeologists, and the archaeologists responding to the scolding. All of it was bad. Let's break it down:

New Regulations and Guidelines: According to the county planner explaining these guidelines, all artifacts found during work would be turned over to the tribes, regardless of whether they were on public or private lands, and all entities performing work on county lands, including federal agencies, would be bound by this requirement. Moreover, no research would be allowed without express consent of the tribes, and representatives from some of the tribes, though it must be stressed not all of the tribes, stated that they would not give consent for research under any circumstances.

Now, a lot of people will argue that it is ethical to side with the tribes and to turn all of the artifacts over to the tribes. I don't entirely agree, but I will concede that it is a fair position to take. The problem, however, is that it doesn't work within the law.

If materials are found on private land, they are considered the property of the landowner (there are some exceptions, but as a general rule, this holds). It can be argued that from a moral standpoint prehistoric materials should be considered the property of the tribes, and there is a valid argument to be made for that position. But from a legal standpoint, this doesn't work. For the government to claim otherwise may constitute a violation of the Fourth Amendment of the U.S. Constitution. So, the county was begging for a lawsuit on this one.

Moreover, while private citizens may be cowed by the County's rules, it is unlikely that the federal government is going to care. I would love to be in the room when this county planner decides to dictate to a federal representative what the Department of Defense is going to do.

Then there's the issue of research. Good arguments can be made on either side for the importance of research vs. the rights of the tribes to prohibit research. However, the problem here comes from the fact that sites are only protected if they are eligible for the National Register of Historic Places or the California Register of Historic Resources. In order to be eligible, they have to meet one of the four eligibility criteria, and the only criterion that applies to the vast majority of archaeological sites is federal Criterion D and state Criterion 4 - that the site has yielded or is likely to yield information important to the study of history or prehistory. In other words, it is eligible if it has potential to be important to research.

When research isn't allowed, this puts everything into a grey area. The site still has the characteristics that would make it valuable for research, but research will not be allowed, which practically negates research potential. In other words, it can be effectively answered that the site has lost research potential and therefore is no longer eligible for the registers, and is therefore no longer protected. I don't know how such an argument would go over in court or with an agency, but in attempting to protect sites from archaeologists, they may very well have created the conditions under which the sites can be destroyed by development.

so, there is a significant chance of a lawsuit, and a good chance that any archaeologist working in the area would get caught up in one. So, this was a problem.

The Scolding: Nobody likes being scolded. In fact, it is one of the fastest ways to make your audience tune you out. It doesn't matter how legitimate your claim or how just your cause, this is simply a bad way to try to persuade someone. So, as you can imagine, having a group of people on a raised platform lecture us about our alleged sins didn't exactly lead to us feeling either contrite or inclined to be helpful.

In addition to the basic communication problems that this created, there was a further content problem. Most of the scolding was over things that had been done by research archaeologists. Not just that, but research archaeologists of the past, for the most part.

A little background information may be in order here. People in my line of work act as consultants to help our clients keep in line with the historic preservation laws. We identify sites, and the agencies with which we work have policies that advocate for avoiding sites, so there is regulatory support for preservation of sites rather than excavation. When we do have to excavate, we know that we will be at a time and funding disadvantage, so we prefer not to excavate when it can be avoided. We are, by both our professional ethics and our training (and many of us by our natures) conservationists, and we would rather not have to excavate a site, and by excavating it damage or destroy it.

Research archaeologists, by contrast, are driven by research questions rather than policy goals. They will, therefore, excavate a site if necessary to answer a research question, and are not necessarily going to be conservationists. However, over the last several decades, an increasingly larger number of research archaeologists have come to the realization that excavation is eliminating sites, and therefore we may be better off using existing excavated collections for research and excavating only as often and only as much as is strictly necessary for a research project.

So, when we were scolded for our "grave robbing" and our "unfettered excavation for no reason than our own personal curiosity", we were being scolded for things that most of the people in that are in fact innocent of. Again, we were conservationists, so we are the natural allies of people who want to preserve sites***. Hell, I know that at least one person in that room had even thrown himself in front of a bulldozer to prevent a site from being destroyed. So, we were being scolded for something that we don't even do, and being accused of destroying sites when it was the new rules from the county that were likely to actually result in the loss of sites.

I should state that most of this scolding came from a few members of the tribal groups represented. The representatives of the other groups showed a better handle on how to talk with and work with archaeologists, as well as the nature of the law (whether or not they agreed with it). However, they were not as vocal nor as forceful as the ones who were throwing accusations, and as such the more negative members set the tone.

One representative even said "you archaeologists have been working for years, and if you've actually learned anything, I haven't heard of it!" It took a good deal of effort to bite my tongue and not yell "yeah, we sneaky bastards cleverly hide our results in published books!" There was a legitimate point here - archaeologists aren't as good as we should be about communicating what we do, especially not to the descendants of the people who we study. We are at fault for a lot of that. At the same time, to say that we haven't learned anything is an astoundingly ignorant statement. She seemed to think that she was putting us in our place when, in fact, she was convincing us that she was someone who wasn't worth listening to.


The Archaeologists Strike Back: So, as you can imagine, the archaeologists were pretty riled up. Some of us tried to point out legitimate issues - that we are preservationists, that we don't dig up sites for our own curiosity but only as a last-ditch effort to protect something from destruction, and that the proposed new rules were likely to endanger sites rather than protect them - but others decided to scold back, achieving nothing but exacerbating an already bad situation.

There was one fellow who began shouting that the Native American representatives in the room weren't even from the groups they claimed to be from. I can not confirm or refute his claim, but I can say that, from a legal standpoint, it's irrelevant, these groups have been legally recognized and we have to work with them. All that his comments did was piss off people with whom we needed to find some sort of common ground.

Other people made statements that sounded good, but seemed to irritate the Native Americans present. For example, one fellow stood up and announced that the archaeological sites were part of our common human heritage, and were shared by everyone. this is a strictly philosophical point of view, and one that I agree with, but after a couple of hours of an "Us vs. You" routine, this did nothing but piss off the other side.

So, while we archaeologists were led into a bad situation, we didn't necessarily acquit ourselves well once we were in the mess.

When the day was done, my coworker and I left Riverside County with the conviction that working there would be a recipe for disaster. The Society for California Archaeology decided to issue a response, but it is no longer easily found. I have not heard of any lawsuits out of the county, so I would assume that matters simmered down.




In the end, though, this was a perfect example of what not to do. The county planner was clearly ignorant of the law, being motivated, as far as could be told, by ideology without regards to reality. The Native Americans were by no means a monolithic group - many of the tribal Representatives made good observations and showed a solid understanding of the situation - but there was no clear leadership amongst them, and as such those who were the most passionate (which were often the ones who knew the least about what archaeologists actually do, based on their statements) were allowed to set the tone, preventing cooperation and creating needless conflict. the archaeologists, rather than being calm and trying to sort out the valid criticisms, and there were valid criticisms voiced, became defensive and went on the counter-attack.

Nobody came out smelling of roses, and it was a truly bas situation all the way around.







*Failure to accomplish this task on the part of many facilities doesn't change the fact that there is a legal obligation to do so.

**Meaning that a company like my employer at the time - a large multi-national engineering and environmental compliance firm - could get away with sending one of many archaeologists, while a smaller company would have to send one of very few archaeologists. Yay for disparity!

***Though, admittedly, the fact that the regulations do protect sites for research potential does introduce a tension into any potential relationship. Nonetheless, we can, and try to, help in preservation.

Sites, Non-Sites, and Mega-Sites

So, as I said in the previous post, we are finishing the site records and writing the report for the project that had me out in Taft for most of last year. As I am working on this report and these site records, I keep thinking of an issue that came up every day during our time in the field: how do we define what is and what is not an archaeological site?

When I talk to non-archaeologists, this tends to get treated as a straightforward problem - if it has archaeological materials, then it's a site. right?

Well, sort of. The answer to the question is more complicated, and what that answer is depends in no small part on the reason why you are asking the question.

If you are a researcher, then you are faced with a basic problem - the locations where you find archaeological materials were not the only parts of the landscape that were occupied by or important to the people who you are studying. A sacred hilltop is a culturally relevant location, even though it may not contain archaeological materials. A location where leaders met to discuss matters is important to understanding prehistory, but might not contain artifacts. Places that were avoided are certainly important, as the reason why they were avoided will tell us something about how the people who lived in an area occupied the land. An area where young couples go to consummate their unions, so to speak, might also contain no artifacts, yet still be an important cultural location. And what about the locations between sites? Is the spacing between sites important? Is the empty space between villages or between a village and a satellite site relevant?

The point is that there are places on the landscape with limited or no archaeological materials present that are nonetheless important to an understanding of the people being studied. Should these be considered archaeological sites despite the lack of materials? If not, is there another designation that we should give them? Should we simply treat everywhere as a cultural landscape and not rely so heavily on sites? Should we pay attention to sites, but always try to account for why there is not a site in an empty location? It's a complicated question, and much ink has been spilled and many a tree killed in publishing arguments and pontifications regarding issues such as landscape archaeology, "site-less" archaeology, intra-site analysis, etc. Although every now and again someone will claim that a consensus has been reached on how to re-shape archaeology to account for these more difficult types of locations, it nonetheless remains the fact that archaeologists are still reliant on sites that clearly contain archaeological materials, pretty much as we have always been. Hardly surprising, as it is difficult to assess the cultural importance of a site that has no signs of cultural importance, despite some people's dubious attempts to do so*.

Okay, so that's research. What about where I currently occupy my niche - archaeological resource management?

Well, here the issue is somewhat different. We are informed by the academic discussions and debates, and they have helped us to better understand the landscape with which we deal. However, ultimately, we have to develop concrete definitions of the term "archaeological site" so that we can extend what protection the regulations allow to these sites. This means that when we ask the question "what is an archaeological site?" we have to take into account not only the cultural importance or use of a location, but also how that site articulates with standing regulations, case law, regional values and activities, the local landscape, and common practice. In other words, it's something of a Frankenstein's monster of a term.

So, we have to start with a question of age. Even though it can be fairly argued that, from a purely technical standpoint, any physical remains of human activity that is not a standing/functioning constructed feature is an archaeological site (including the remains of a legendary party), the regulations don't generally apply to anything that is less than 50 years old** (45 years old by some agencies' policies).

And then there is the question of artifact quantity. If only one artifact is found, then the location is not considered a site, but an isolate. Although there are exceptions, isolates rarely qualify for protection by themselves (although they are sometimes re-examined to see if there is a buried site). If you have two artifacts, then that may qualify as a site or an isolate, depending on the agency with which you are dealing. Three artifacts, and you typically have yourself a site (although this can get muddied, as some agencies have different thresholds for a site vs. an isolate for historic and prehistoric sites).

Artifact density also comes into play here - if three artifacts are found within a 10-square meter area, then you pretty likely have a legitimate site. If three artifacts are spread across a quarter-square mile, then you probably have three isolates. However, this is also where local landscape comes into play. In one region of California, for example, you can't walk more than 20 feet without finding a historic artifact. Now, if we wanted to get really technical here, we would have to say that a 400-square mile area covering multiple counties is one big archaeological site. Such a definition might be valuable for a researcher (or it might not, depending on what they are doing), but it's pretty damn useless for resource management, not least because most of that area, while covered in materials, isn't going to qualify for listing on state or federal historic registers, and therefore is not going to be protected in any way.

The approach of the government agencies and archaeologists in the area is to treat the entire area as a "cultural landscape" in which it is known that people have been making use of pretty much every square inch of land for a couple of centuries. That being the case, rather than treat the entire area as a giant archaeological site, we locate areas of high artifact concentration and label them as sites, and the rest of the area is treated as "background noise" - valuable for understanding the context of our sites, but not particularly instructive overall.

The end result is that the definition of what is or isn't a site varies greatly across the land - even within the state of California, the term "site" is open to re-definition depending on what's going on in a given locality.

And people wonder why archaeologists are given to alcoholism***.





*You may notice that I am inconsistent with my use of the term "archaeological site" between the linked entry and this entry. This is, unfortunately, typical of much of the archaeological literature. As there is little clear consensus as to what is a site and what is not a site, you'll find that even an individual archaeologist will use the term a bit loosely.

**There are, of course, exceptions. If a resource is of exceptional historic importance, say Cape Canaveral for example, then it may qualify for protections even before 50 years have elapsed.

***Truth - archaeologists are actually notorious for alcoholism. I am something of a weird anomaly in that I rarely drink, and never to the point of inebriation, which leads many of my colleagues to falsely conclude that I am a Mormon (no joke).

Know Your Regs

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:

Photo Deleted

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.