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Geothermal Projects and Indian Tribes: Dealing with Cultural Resources Issues. Michael P. O’Connell Stoel Rives LLP moconnell@stoel.com 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

Michael P. O’Connell

Stoel Rives LLP

moconnell@stoel.com

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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Principle Federal Laws Resources Issues

  • 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


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Federal Land Resources Issues

  • 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


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Federal Land Cases Resources Issues

  • 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)


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Indian Reservations Resources Issues

  • 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)


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Other Land Resources Issues

  • Most states have laws protecting Indian graves and cultural resources

  • NHPA and NEPA when federal action is involved


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Other Land Cases Resources Issues

  • 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)


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Traditional Cultural Resources IssuesProperties (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)


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NHPA Section 106 Resources Issues

  • 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


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Section 106 Process Resources Issues

  • Section 106 regulations apply to all federal agencies. 36 C.F.R. Part 800

  • Section 106 regulations prescribe a rigorous, multi-step process


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1. Identify Interested Resources IssuesParties 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


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2. APE Determination Resources Issues

  • 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


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3. Resources IssuesIdentify 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)


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4. Resources IssuesNational 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


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National Register Resources IssuesEligibility (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


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5. Assessment of Resources IssuesAdverse 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.”


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Assessment of Resources IssuesAdverse 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.


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Assessment of Resources IssuesAdverse Effects

  • Agency and Indian tribe may agree to mitigation measures that support a no adverse effect determination


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7. Resources IssuesResolution 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


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Resolution of Resources IssuesAdverse 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)


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8: Resources IssuesFailure 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


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9. Section 106 Resources IssuesProgram 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


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Confidentiality Resources Issues

  • 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


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Confidentiality (cont’d) Resources Issues

  • 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)


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Inadvertent Discoveries Resources Issues

  • 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


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Inadvertent Discoveries Resources Issues

  • 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


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    Resources Resources Issues

    • 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