This fell into our hot little hands recently....sounds like someone is dragging their heels
July 26, 2013
Stephen Robertson
Chief, Wildlife and Sport Fish Restoration Program
U.S. Fish & Wildlife Service, Southwest Region
P.O. Box 1306
Albuquerque, NM 87103-1306
Ref: Status of Section 106 Consultation for Effects to Amity Pueblo from Sport Fish Restoration Grantfor Construction of Lee Valley/Eagar Pond, Eagar, Arizona
Dear Mr. Robertson:
The Advisory Council on Historic Preservation (ACHP) is concerned about the delay in the consultation under Section 106 of the National Historic Preservation Act (NHPA) and its implementing regulations, "Protection of Historic Properties" (36 CFR 800), for the resolution of adverse effects to the Amity Pueblo Site (AZ Q:15:74(ASM)) in Eagar, Arizona. We are especially concerned about the resultant delay in steps to recover and re-inter human remains that were disturbed by the referenced undertaking.
As you know, a number of burials at the Amity Pueblo site were disturbed and human remains dispersed across portions of the project site more than two years ago by construction activities related to the undertaking, which was in part funded by a United States Fish and Wildlife Service (FWS) grant to the Arizona Game and Fish Department (AZGFD). We acknowledge that FWS was not notified of the disturbance for a year after it occurred. However, over a year has passed since FWS became aware of the issue. In August 2012, AZGFD hosted an on-site meeting at the project site attended by FWS, the Arizona State Historic Preservation Officer (SHPO), the Natural Resource Conservation Service (NRCS), and interested tribes, including Pueblo of Zuni, Pueblo of Acoma, Hopi Tribe, and Navajo Nation. At that meeting, and in consultation meetings held in December 2012 and January 2013, representatives of the tribes expressed great concern about the disturbance of the burials and the need for FWS and AZGFD to quickly develop and carryout procedures to protect, recover, and re-inter the disturbed human remains.
We understand that the process is complicated by issues related to AZGFD compliance with Arizona Antiquities Act (ARS §4l-844) which requires coordination with the Arizona State Museum (ASM) in consulting with interested tribes and developing plans for disposition of human remains disturbed on state lands. However, it was our understanding that the general outline of a plan to address the disturbed human remains has been developed in consultation meetings and follow-up correspondence. We also understand that concerns about costs and the uncertainty of funding for the treatment of human remains and for any steps to address the adverse effects to non-burial features that were disturbed by the undertaking have also contributed to the delay in resolving these issues.
In our letter dated September 7, 2012, the ACHP advised the FWS that it must take the steps necessary to consult with the SHPO, AZGFD, interested tribes, and other consulting parties to develop protocols for the handling and disposition of the disturbed human remains; come to agreement on steps necessary to resolve adverse effects on the Amity Pueblo archaeological site; and develop a Section 106 agreement document to memorialize this resolution of the adverse effects. In our follow-up letter dated November 23, 2012, we re-iterated our guidance, noting that compliance with the federal and state statutes can be coordinated. We suggested that FWS take the lead in advancing the consultation process to meet their obligations under both the federal regulations and state statute. In that letter, we noted that the availability of funding may be a consideration in development of steps to resolve adverse effects but funding considerations should not forestall the consultation process, consideration of appropriate disposition of the disturbed human remains, and interim steps to safeguard the disturbed human remains. However, we wish to emphasize that FWS needs to consider these issues with all consulting parties, not just with the project proponent. The Section 106 consultation process provides the context for working through such Issues.
We note that a draft Memorandum of Agreement (MOA) was sent to consulting parties at the end of January 2013. Comments from consulting parties were critical of the draft's limited focus on disposition of human remains. There have been limited communications from FWS with the consulting parties since that time. In late May and early June, 2013, the ACHP received a copy of a revised draft MOA and provided comments in mid-June. At that time, we understood that the revised draft MOA would be shared with all consulting parties shortly thereafter.
Recently, we have had a number of inquiries from tribes as well as from the SHPO asking about the status of the Section 106 process and expressing concern about the continued delay in dealing with recovery and re-interment of the human remains. The ACHP strongly advises that due to the extreme sensitivity of the situation, the FWS share a version of the draft MOA with all consulting parties promptly. FWS should not wait for full concurrence with the terms of a draft MOA from the project proponent prior to sharing the draft with consulting parties. The consultation process is intended to enable open consideration of all the issues, including the treatment of disturbed human remains, proposed steps to address the adverse effects to non-burial related archaeological features, as well as funding and logistical conditions that may apply. It is important to keep the consulting parties directly involved in the consideration and resolution of these Issues.
The FWS should immediately communicate with all the consulting parties, especially the tribes and advance the Section 106 process expeditiously. Leaving disturbed human remains in such limbo is deeply troubling. In light of that, the ACHP requests that the FWS provide all consulting parties with a summary of the current status of the Section 106 consultation process, including development of the procedures for treatment of human remains, a list of the steps FWS anticipates in completing the Section 106 process, and a timeline for those steps. FWS should also disseminate the draft MOA as it stands now so that consulting parties can provide comments that will help inform the development of the agreement document.
We look forward to assisting the FWS and consulting parties in completing the Section 106 review and implementing the steps agreed upon for the disposition of disturbed human remains and the resolution of adverse effects to non-burial related features at the Amity Pueblo site.
Should you have any questions or wish to discuss this matter further, please contact John T. Eddins, PhD at 202-606-8553, or bye-mail at jeddins@achp.gov.
Sincerely,
/CDH/
Caroline D. Hall
Assistant Director
Federal Property Management Section
Office of Federal Agency Programs
Advisory Council on Historic Preservation
Yes, the ACHP wags its finger, and that comes across as 10 lashes with a wet-ACHP-noodle to the agencies. This is a typically vacuous statement from ACHP - it takes 2 verbose pages to say basically nothing. This an example of "ACHP Speak". Note that "availability of funding may be a consideration" in achieving resolution, but "funding considerations should not forestall the consultation process" (which is now well into its second year).
ReplyDeleteWhat, exactly, does the ACHP's statement mean ? The ACHP is OK that nothing is being done because there is no money to do it, but nevertheless likes to see the parties continue to talk indefinitely about their unfunded predicament ? What is ACHP hoping for next - the tooth fairy to arrive ?
The ACHP is powerless here, and they know it. We all know it. It may take litigation to fix those pesky "funding considerations". But of course, as long as everybody is talking nicely, the NHPA process goes on indefinitely, the ACHP nods its approval - or occasionally wags its finger - and the likelihood of quick resolution diminishes.