It's an Adverse Effect to Destroy
Editor's Note: This is the first in a series of two articles that will explore specifically how the 1999 revisions to Section 106 of the National Historic Preservation Act have changed the way archaeological resources will be considered and treated by the review process.
The revised 1999 version of 36 CFR 800, the Advisory Council on Historic Preservation (ACHP) regulations governing compliance with Section 106 of the National Historic Preservation Act (ACHP 1999a, Protection of Historic Properties, 36 CFR 800) eliminate a feature of the previous 1986 regulations that was colloquially referred to as the "research exception." Under this provision, an agency could destroy an archaeological site (or any other historic property valuable only for its potential contribution to research) after data recovery, and say that it had had "no adverse effect" on the property.
The demise of the research exception seems to have triggered a surprising amount of confusion and hand wringing among archaeologists and agencies. This is too bad. There are many things to criticize in the new Section 106 regulations, but from an archaeological standpoint, getting rid of the research exception is one of the best things the ACHP has done in a long time. This article and the one that will follow in the March 2000 issue are designed to explain why.
I won't repeat here what I've written in some detail elsewhere about the exception's origins (T. F. King, 1998: 109112, Cultural Resource Laws and Practice: An Introductory Guide. AltaMira Press, Walnut Creek, CA). In brief: It was developed at a time when the ACHP had no archaeological expertise and was suddenly being overwhelmed by archaeological cases. In virtually all these cases, nobody involved wanted to do anything but dig the sites up and let them be destroyed, so the ACHP saw no reason to put them through the same kind of rigorous review it applied to proposals to demolish historic structures. It reasoned that since the importance of an archaeological site lay in its information, if that information could be preserved, then destroying the mere dirt of the site didn't adversely affect it. Ergo, an agency should be able to destroy such a site after data recovery and still find that it had had no adverse effect on it, thus moving through the 106 process rather quickly and not involving the ACHP much in the process.
Some archaeologists (including me, then employed by the National Park Service) objected strenuously to the ACHP's idea, but we couldn't keep the research exception from being put in place. So we negotiated controls to minimize its potential for assigning archaeological sites to second class citizenship and for encouraging willy-nilly excavation. These didn't work very well, even when they were formally embedded in the regulations in 1986.
Under the research exception, an agency could make a finding that destroying an archaeological site didn't have an adverse effect on it if three conditions existed.
(1) The site had to be "of value" only for researchin other words, it couldn't be a spiritually important place to an Indian tribe, a culturally valued place to a descendant community, a place that was suited for public interpretation, or a type of site with a similar definition.
(2) The important information in the site needed to be recoverable using contemporary research methods.
(3) The agency had to be committed to recovering the information, by having a research design in hand, acceptable to the ACHP and other parties [notably but not exclusively the State Historic Preservation Officer (SHPO)], and supported by dedicated funding.
In theory, this was supposed to limit application of the exception to sites that nobody thought it would be useful to preserve in place, that were simple enough to make "full" data recovery at least arguably plausible, and that would be subjected to full, thoughtful, research-oriented data recovery.
It didn't work that way. People interpreted the exception to mean that if a site was found eligible for the National Register under National Register Criterion "d"containing information significant in history or prehistoryit could be subjected to data-recovery-and-destruction (DRAD) without adversely affecting it, while if it was eligible under any other criterion, it couldn't. And it was similarly understood that the only entity which has to approve the DRAD plan was the SHPO. Never mind that neither was what the regulations said; that is what people interprated them to mean.
"Under this provision, an agency could destroy an archaeological site (or any other historic property valuable only for its potential contribution to research) after data recovery, and say that it had had 'no adverse effect' on the property."
Meanwhile, Native American groups and other descendant communities had become more active in Section 106 review, and many were not wild about the idea that their ancestral sites could be destroyed willy-nilly, subject only to the ministrations of arch-aeologists, simply because someone assigned them to a particular arbitrary National Register category and an SHPO signed off on the data recovery. Those archaeologists who still thought that Bill Lipe (W. D. Lipe, 1974, A Conservation Model for American Archaeology. Kiva 39: 3 and 4. Reprinted in Social Archaeology: A Guide for Cultural Resource Management Studies, edited by M. B. Schiffer and G. J. Gumerman, Academic Press, 1977: 1942) had a point with his "conservation model" didn't view the whole busi-ness very kindly either. But even most tribes and archaeologists accepted the spurious equation of National Register Criterion "d" with eligibility for the exception, and the result was a plethora of truly silly arguments about whether this, that, or the other site was eligible only under "d" or under some other criterion.
When the ACHP set out in 1993 to revise the regulations, Indian tribes and other descendant communities, together with a few archaeologists, argued that it should take the opportunity to do away with the research exception. Nobody (except perhaps some descendant communities) argued that data recovery should never be done; the argument was simply that destruction with data recovery should be recognized as an adverse effect and given the same level of scrutiny and consultation as the demolition of a historic building.
Some agencies, and archaeologists who had grown accustomed to it, defended the exception. Transportation agencies were particularly interested in keeping it, understanding that "no adverse effect" under Section 106 equaled no "use" under Section 4(f) of the Department of Transportation Act, therefore not triggering Section 4(f)'s (ridiculous) requirement that no "prudent and feasible alternative" exist before such "use" could be countenanced. Agencies that had foolishly linked "adverse effect" under Section 106 with "significant impact" under the National Environmental Policy Act were similarly disquieted by the prospect of losing the exception.
In the end, howeverrather surprisinglythe transportation agencies backed off and the ACHP took a principled position, expunging the research exception from the regulations.
Let's be completely clear about this: Under the revised Section 106 regulations, it is an adverse effect to destroy an archaeological site, however much data recovery you do on it first.
This does not mean that you can't do data recovery. You can, and agencies certainly will, continue to. But it does mean that an agency can do so only after acknowledging adverse effect and going through some consultation to resolve that adverse effect. This will involve exploring alternatives to DRAD, and when data recovery is agreed to, we can hope that it will result in better data recovery programs than have often happened under the research exception.
However, the issue that provoked the ACHP to establish the research question in the first place still exists. There are still many cases where all involved can agree, with minimum fuss and muss, that DRAD is the best or only thing to do. There is little reason to insist on elaborate consultation about alternatives in such a case.
The ACHP has tried to deal with this fact by issuing its Recommended Approach for Consultation on Recovery of Significant Information from Archaeological Sites (ACHP 1999b Recommended Approach for Consultation on Recovery of Significant Information from Archaeological Sites. 64 FR 27085-87). If an agency follows this "approach," it can expect the Memorandum of Agreement (MOA) it develops on a DRAD project to be viewed with favor by the ACHP. If it doesn't, or can't, then the ACHP is likely to ask questions and perhaps insist on more consultation, the consideration of more alternatives.
In the next issue of the SAA Bulletin, we will look at the Recommended Approach and see what it may mean for archaeologists and archaeological data recovery. ·
John Beach Rinaldo was born in Wheaton, Illinois, November 29, 1912, the son of Philip Sidney and Harriet Beach Rinaldo. He died Monday, November 29, 1999, at Iowa Methodist Medical Center in Des Moines. A 1934 graduate of Carleton College, he attended Harvard School of Business in 1935. He received his M.A. and Ph.D. from the University of Chicago. Rinaldo was associated with the National Park Service and the Civilian Conservation Corps, as well as having been involved in various administrative and expedition positions with the Chicago Museum of Natural History. He also had been associated with the Amerind Foundation in Dragoon, Arizona, and had taught at Cochise College in Douglas, Arizona. Rinaldo served in the United States Army during World War II. In 1951, he married Ruth Bauer. They made their home in the Colfax, Iowa, area for several years prior to moving to Des Moines in 1992. Rinaldo was a member of the Society for American Archaeology, fellow of the American Anthropological Association, and Sigma XI. ·
back to top