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Geothermal Projects and Indian Tribes: Dealing with Cultural Resources Issues. Michael P. O’Connell Stoel Rives LLP [email protected] 206-386-7692. O R E G O N W A S H I N G T O N C A L I F O R N I A U T A H I D A H O .

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geothermal projects and indian tribes dealing with cultural resources issues

Geothermal Projects and Indian Tribes: Dealing with Cultural Resources Issues

Michael P. O’Connell

Stoel Rives LLP

[email protected]

206-386-7692

O R E G O N W A S H I N G T O N C A L I F O R N I A U T A H I D A H O

principle federal laws
Principle Federal Laws
  • National Historic Preservation Act (NHPA), Section 106, 16 U.S.C. § 470f
    • Federal agency must “take into account the effect of the undertakings on any” properties listed on or eligible for listing on the National Register of Historic Places.
  • National Environmental Policy Act (“NEPA”)
    • Federal agency must evaluate impacts of proposed action and alternatives on cultural resources
federal land
Federal Land
  • NHPA and NEPA apply to federal agency actions
  • Native American Graves and Repatriation Act (“NAGPRA”) protects Indian human remains, funerary objects and cultural resources
  • Archaeological Resources Protection Act (“ARPA”) requires permit for removal of NAGPRA protected objects
  • NAGPRA and ARPA require agency consultation with tribes
federal land cases
Federal Land Cases
  • Pit River Indian Tribe v. Forest Service, (9th Cir. 2006) (BLM and Forest Service geothermal project approvals set aside for failure to take into account impacts on tribal cultural resources)
  • Comanche Nation v. U.S., (W.D. Okla. 2008) (Army construction project enjoined for failure to take into account impacts on tribal cultural resources)
indian reservations
Indian Reservations
  • Tribal cultural resource protection laws
  • NHPA and NEPA apply to federal actions
  • NAGPRA and ARPA apply
  • Attakai v. United States, (D. Ariz. 1990) (enjoined range fencing project pending consultation; consultation determined no tribal historic properties were affected)
other land
Other Land
  • Most states have laws protecting Indian graves and cultural resources
  • NHPA and NEPA when federal action is involved
other land cases
Other Land Cases
  • Lummi Nation v. Golder Associates, Inc., (W.D. Wash. 2002) ($4.25 million to settle state-law claims regarding impacts on Indian graves; site abandoned)
  • Port Angeles Graving Dock (Washington DOT abandoned site after three years and over $80 million investment, despite prior (inadequate) consultation with SHPO)
traditional cultural properties tcps
Traditional Cultural Properties (TCPs)
  • Properties of “traditional religious and cultural importance” to federally recognized Indian tribes may be “eligible for inclusion on the National Register.” 16 U.S.C. § 470a(d)(6)(A)
  • “Federal Agency shall consult with any Indian tribe . . . that attaches religious and cultural significance to [such] properties,” 16 U.S.C. § 470a(d)(6)(B)
nhpa section 106
NHPA Section 106
  • Federal agency must “take into account the effect of the undertakings on any” properties listed on or eligible for listing on the National Register of Historic Places.
  • Like NEPA, section 106 is a “stop, look, and listen” procedural statute
  • Compliance is federal agency’s responsibility
section 106 process
Section 106 Process
  • Section 106 regulations apply to all federal agencies. 36 C.F.R. Part 800
  • Section 106 regulations prescribe a rigorous, multi-step process
1 identify interested parties and tribes
1. Identify Interested Parties and Tribes
  • Agency official “shall make a reasonable and good faith effort to identify any Indian tribe . . . that might attach religious and cultural significance to historic properties in the area of potential effects [APE] and invite them to be consulting parties.” 36 C.F.R. § 800.3(f)(2)
  • Interested tribes may be hundreds of miles from the APE
2 ape determination
2. APE Determination
  • APE is area where undertaking may cause alterations to character or use of historic properties
  • Regulations require agencies to consult with the SHPO or tribes for this step; failure to do so may generate disputes regarding APE scope
  • Some section 106 consultations establish one APE for traditional historic properties and another for TCPs
3 identify historic properties within ape
3. Identify Historic Properties Within APE
  • Consult with SHPO and any Indian tribe that might attaches religious and cultural significance to historic properties in the APE
  • Agency’s level of effort:
    • Reasonable and good faith effort to carry out appropriate identification efforts
    • “[T]ake into account confidentiality concerns of Indian tribes.” 36 C.F.R. § 800.4(b)(1)
    • Phased identification may be used for linear projects, large areas, or where access to property is restricted – § 800.4(b)(2)
4 national register listing eligibility
4.National Register Listing Eligibility
  • For properties outside reservation, agency needs SHPO concurrence; inside reservations, THPO or Indian tribe
  • If SHPO/THPO does not concur, eligibility issue goes to the Keeper of the National Register
  • Agency must acknowledge that Indian tribes have “special expertise” in assessing eligibility of TCPs
national register eligibility cont d
National RegisterEligibility (cont’d)
  • If the agency and Indian tribe disagree on eligibility:
    • The action agency may agree to regard the property as eligible and proceed to next step of assessing adverse effects
    • Tribe may request the Advisory Council on Historic Preservation (ACHP) to request an eligibility determination by the Secretary of the Interior under 36 C.F.R. Part 63
5 assessment of adverse effects
5. Assessment of Adverse Effects
  • Agency must consider the views of Indian tribes
  • An adverse effect exists if an undertaking may alter any characteristic that qualifies a property for National Register listing in a manner that would “diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association.”
assessment of adverse effects
Assessment of Adverse Effects
  • If a timely objection is made, the agency must consult with the objector or request ACHP review.
    • If the ACHP timely responds, the agency must prepare a summary “that contains the rationale for the decision and evidence of consideration of the [ACHP’s] opinion”
    • The agency can adopt the ACHP’s response or affirm it’s no adverse effect determination; either way, the agency’s section 106 responsibilities are fulfilled.
assessment of adverse effects18
Assessment of Adverse Effects
  • Agency and Indian tribe may agree to mitigation measures that support a no adverse effect determination
7 resolution of adverse effects
7.Resolution of Adverse Effects
  • Avoidance, minimization, and mitigation
    • If agreement is reached at this step, set it forth in MOA
      • Required MOA signatories
        • Action agency
        • SHPO/THPO (if effects are within a reservation)
      • Invited signatories are not mandatory
        • Indian tribes may be invited to sign for effects outside reservation
resolution of adverse effects
Resolution of Adverse Effects
  • Inadvertent discoveries protocol
    • May be included in MOA
    • If not, and inadvertent discovery is encountered, consultation must be initiated
  • Muckleshoot Indian Tribe v. Forest Service, (Forest Service failed to consider alternatives that could have protected tribal member cultural and religious uses in land exchange)
8 failure to resolve adverse effect s
8:Failure to Resolve Adverse Effects
  • Consultation may be terminated by agency, SHPO/TPHO or ACHP
  • Unless THPO or tribe is involved for on-reservation impacts, a tribe cannot terminate a consultation
9 section 106 program alternatives
9. Section 106 Program Alternatives
  • Authorized by 36 C.F.R. § 800.14
    • Alternate procedures
    • Programmatic Agreements (PAs) for phased identification, large areas, corridor projects – 36 C.F.R § 800.14(b)(2)
    • ACHP approval required
  • Agency proposing program alternatives must consult with affected tribes
confidentiality
Confidentiality
  • Tribes frequently are concerned that providing information may lead to looting or impede their use of sites
  • Under section 304,16 U.S.C. § 470w-3(a), an agency may withhold information from public disclosure
    • That would cause an invasion of privacy
    • Risk harm to historic resources
    • Impede use of a traditional religious site by practitioners
confidentiality cont d
Confidentiality (cont’d)
  • Agency head must determines that the information qualifies under section 304(a) and the Secretary of the Interior must determines who may have access.
  • Information not so protected is subject to disclosure under the Freedom of Information Act and NHPA regulations, 36 C.F.R. § 800.2(d)(2)
inadvertent discoveries
Inadvertent Discoveries
  • PA or MOA may address what to do – if so, implement the plan
  • If not:
    • Initiate consultation if discovery occurs after section 106 process is completed and agency has not approved the undertaking
    • If agency, SHPO, and Indian tribes agree that property is of value solely for data recovery purposes, data recovery may be conducted under Archaeological and Historic Preservation Act
inadvertent discoveries26
Inadvertent Discoveries
    • If undertaking has been approved andconstruction has commenced, agency must determine actions that resolve adverse effects, notify SHPO, interested tribes, and ACHP within 48 hours of discovery; SHPO, tribes, and ACHP have 48 hours to respond; agency must take recommendations into account, carry out appropriate actions, and report to SHPO, tribes and ACHP
  • On federal and Indian reservation lands, NAGPRA and ARPA also apply
resources
Resources
  • Consultation with Indian Tribes in the Section 106 Review Process: A Handbook (ACHP November 2008)
  • Policy Statement Regarding Treatment of Burial Sites, Human Remains and Funerary Objects (ACHP 2007)
  • S. Hutt et al, Cultural Property Law: A Practitioner’s Guide to the Management, Protection, and Preservation of Heritage Resources (American Bar Association 2004)
  • T. King, Places That Count, Traditional Cultural Properties in Cultural Resource Management (2003)
  • T. King, Cultural Resource Laws and Practice: An Introductory Guide (2000)
  • Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties, National Park Service, U.S. Department of the Interior
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