Meanwhile, in the Land of Enchantment...

Around the time AZGFD was busy digging up Amity Pueblo, their counterparts at the New Mexico Department of Game and Fish (NMDGF) were doing something very similar at a Mimbres site at Lake Roberts, on land they manage near Silver City. These projects were in many respects identical, but their current dispositions are very, very different. Take a look at NMDGF's account of the Lake Roberts situation presented in their annual report on coordination with tribes:

Lake Roberts Dam & Spillway Project: NMDGF, via our contractor UNM/OCA, has uncovered disarticulated, non-complete human remains of three Ancestral Puebloan individuals. NMDGF has also received formal comment on November 21, 2011 for said remains from representatives of the Hopi, and informally in November with the cultural resource representative for the Pueblo of Zuni. Hopi’s response was in favor of Pueblo of Acoma to take the lead on the NAGPRA discussion; NMDGF recognizes the formal request of the Hopi and acknowledges the Pueblo of Acoma as lead in this matter. Both The Pueblo of Acoma and The Hopi favor an onsite repatriation after construction. NMDGF will see to the interment through its contractor in an area as close to the vicinity
of the original inhumation as possible and has been working closely with the Pueblo of Acoma during this formal consultation process.

So both the Lee Valley Pond and Lake Roberts projects were initiated by their respective state's wildlife management department, on land that they owned, using federal funds provided by the very same office of USFWS. Both took place within known archaeological sites where the likelihood of encountering buried human remains should have been understood to be very high based simply on the nature of surface remains. How is it possible that New Mexico is moving forward with reburial in accordance with descendants' wishes while Arizona is mired in a pissing match with it's federal funding partner?

One difference: NMDGF had an established cultural resources program with full-time archaeologists. Looks like NMDGF even allows them to do some fairly thoughtful CRM.  AZGFD did not have an archaeologist at the time the Lee Valley project was being planned and executed. Just possibly, having staff archaeologists with the ability to advise agency decision makers helped ensure Lake Roberts did not turn out like Lee Valley Pond.

Another difference, which is huge, is that NM HPD laid down the law. They held NMDGF to a higher standard of pre-construction project review to ensure compliance with federal law, as described in this discussion of from April 2013 New Mexico Cultural Properties Review Committee meeting minutes:

Lake Roberts, in the Gila area outside of Silver City, has a very large Mimbres site, situated on property owned by the New Mexico Department of Game & Fish (NMDGF). A dam was built many years ago on top of the site. The dam was declared unsafe, and renovations are now required. The NMDGF and HPD entered into a memorandum of understanding to spell out how to conduct projects under state law that would be compatible with federal law, because so many of the NMDGF's projects start out as state projects and then become federal projects. This is what happened at Lake Roberts. NMDGF determined that they did not have enough funds and then requested federal funds from the Fish and Wildlife Service.

At about the same time, a parallel project (Amity Pueblo) was occurring in Arizona, which resulted in damage to a number of human burials at this well-known site. Both projects resulted in the discovery of human burials. Those in NM were formally excavated as part of the state's permit process. A number of tribes were interested in both projects and contacted the federal Fish & Wildlife Service, which initiated consultation. 

For Lake Roberts, the memorandum of agreement is being negotiated to address tribal concerns and integrate their views about the tribes' patrimony more effectively in the process and in a more thoughtful manner. This is an opportunity to talk with tribes in a way that has not been done before. This case points out, very clearly, the significant differences between state and federal law and how we work with tribal consultation and unmarked human burials in New Mexico. The outcome may result in needed changes to the regulations.

Oh hey, not only were NM HPD's requirements effective in making sure a "discovery" situation could be properly addressed, but the culture of New Mexico preservationists is such that they are willing to use this situation as a case for updating regulations. Whoa. AZ SHPO, meanwhile, rubber-stamped destruction at Amity prior to construction. Following the "discovery," state agencies (AZGFD, SHPO, ASM) closed ranks to blame the feds for the ensuing delay in resolution. 

All this speaks volumes about the two neighboring states' differing attitudes toward preservation, not to mention a differing commitment to basic human courtesy.

The bottom line? Amity Pueblo still lays open and unsecured, remains of it's former inhabitants still strewn across the ground. The community of Eagar does not have the fishing pond it was promised. Compare this with Lake Roberts, where reconstruction of the dam is now underway. I think it's clear which approach was more effective for all parties involved.

The legal foundation for a lawsuit

Specific and non-specific timelines are specified by law, as presented below:

• The director of the Arizona State Museum (deferred to the Coordinator) will respond in a timely fashion (interpeted as immediately, but certainly in less than 6 months)
• The director of the Arizona State Museum (deferred to the Coordinator) will convene a meeting within 6 months
• If no agreement is reached within 6 months, the remains shall be treated in accordance with the wishes of the nearest relative. Only after that 6 month period has elapsed may tribal governments or other legitimate claimants assert a unilateral demand for repatriation

ASM...TIME'S UP. 

Time was up 18 months ago. Do your job.

Also, note that Federal undertakings and Federal Laws do not supersede state law, so USFWS and SHPO can circulate as many MOAs as they want, but ASM needs to comply with the law. They are not. And this is where one would aim a lawsuit.

So, Game & Fish pony up the dollars and ASM get your ass moving before you all wind up in court. The fire's brewing and the natives are restless. 

ARS 41-844 (abridged)

A person in charge of any survey, excavation, construction or other like activity on any lands owned or controlled by this state, by any public agency or institution of the state, or by any county or municipal corporation within the state shall report promptly to the director of the Arizona state museum the existence of any archaeological, paleontological or historical site or object that is at least fifty years old and that is discovered in the course of such survey, excavation, construction or other like activity and, in consultation with the director, shall immediately take all reasonable steps to secure and maintain its preservation.

The director shall respond to every report of a discovery in a timely fashion and within six months of being notified of the discovery, the director shall convene a meeting of notified persons and representatives of notified groups to discuss the most appropriate disposition of the discovered materials. If an agreement is reached, it shall determine the disposition and treatment of the materials and the director shall oversee its implementation. If no agreement is reached within six months of the meeting, the human remains or funerary objects shall be disposed and treated in accordance with the wishes of the nearest relative with a direct kinship relationship, or with the wishes of the governing body of the group with cultural or religious affinity to the remains or objects if no relative exists. The authority to determine the disposition and treatment of remains or objects pursuant to this subsection shall not be exercised in a manner that would prevent timely completion of a construction project or other project.

If there is no person with a direct kinship relationship or a group with a cultural or religious affinity to human remains or funerary objects and the remains have no scientific value, the remains or funerary objects shall remain undisturbed. If it is necessary to move them in order to permit completion of a construction or similar project, the remains or funerary objects shall be reburied under the supervision of the director in a place as similar and close as possible to their original burial site.

The expense of any curation or reburial pursuant to this section that is required as the result of a construction project or similar project shall be borne by that project. Reburials made in order to satisfy the wishes of a relative or affinal group shall be by and at the expense of the relative or group.


And the State Museum's Implementing Guidance (selections)

A.R.S. §41-844 and A.R.S. §41-865 insure that Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony discovered on State lands, and Human Remains and associated objects from private lands, are treated with respect and dignity. These Arizona laws provide that groups having biological relationship or cultural affinity with the Remains have a very significant role in determining the treatment and disposition of these culturally significant materials. At the same time the laws insure that the various other relevant interests are also represented in the decision-making process.

When a federal undertaking on State or private lands is involved, the federal repatriation statute (PL 101-601 or NAGPRA) and agreements developed solely under that statute do not supercede the requirements of the State laws; a State agreement is needed. Agreements regarding disposition of Remains from State lands or from private lands in Arizona are legally binding under Arizona repatriation statutes only when the Museum is involved in the consultation and the resulting agreement.

ARS §41-844 requires that interested parties must consent to any agreement reached regarding treatment and disposition of relevant materials. Should all parties not consent, further negotiation is mandated for a period of up to 6 months, after which the wishes of the groups claiming affinity determine the disposition of Remains.

The Director of the Arizona State Museum has legal responsibility for coordinating the implementation of these laws. The Coordinator (Pitezel) is the member of the Museum's professional staff appointed by the Director to assist in coordinating the implementation of these laws.

Up to 6 months are allowed after the date of the initial consultation meeting for continued negotiation, should all interested parties present fail to reach agreement at that meeting. Only after that 6 month period has elapsed may tribal governments or other legitimate claimants assert a unilateral demand for repatriation of items despite the absence of an agreement between all interested parties.

Should claimants be unable to agree on appropriate treatment and disposition of Remains, the Director shall make a determination regarding the group having the closest affinity to the deceased, and shall proceed according to the wishes of that group.

[White]

Here's an abridged version of an Arizona Republic article on the excavation of pioneer graves in Maricopa County. Please follow the link below to the full article if you wish to read more about the history of some [white] historic Phoenicians. Any emphasis is added by us.

As you read this, think about the similarities and differences to the Amity Pueblo Desecration. 

We are Anonymous

I'll just leave these here...

Ladies and Gentlemen, 

One of the main reasons Amity Pueblo was desecrated lies with the archaeologist and project managers’ failure to provide an adequate records review and project description such that consultation could be meaningful and effective. In an effort to understand how Amity happened, in what ways different players are responsible, and what needs to change to avoid such crimes in the future, excerpts from the survey report and associated documents are provided below. The actual documents and locational data have been withheld. It should be noted that the supposed 1:24,000 scale map is of insufficient scale to evaluate APE boundaries within the actual cultural landscape and that the geographic coordinates defining the survey area are 900 feet West-Northwest of the project location of the project. Draw your own conclusions there...

The 1 page report: 

Eagar pond and parking lot 11/11/2010 by Miles Gilbert

AZGFD proposes to level and develop for public fishing and parking approximately 6 acres. A cultural resources inventory survey of the APE was conducted by NRCS Cultural Resources Specialist Miles Gilbert and AZGFD Fish Specialist Kelly Meyer with the result that no cultural resources were found. An electronic query of AZSITE located site AZ Q: 15: 74 (ASM) a PIII rubblemound within 100m of the proposed APE. See attached 1:24,000 scale map. The proposed APE will avoid the site boundary by at least 100 feet. A finding of no historic properties affected is recommended for this project. 

Ownership: Private No. of Cultural Resources Recorded: 0 Number of Isolated Finds: 0

YES, THAT IS THE ENTIRE SURVEY REPORT. 

The resulting SHPO consultation letter offered no additional information:

To James Cogswell, Archaeologist Arizona State Historic Preservation Office

Dear Mr. Cogswell:

The USDA-Natural Resources Conservation Service (NRCS) is providing technical assistance for the Arizona Game and Fish Department (AZGFD) to level and develop for public fishing and parking The project is located and mapped on REDACTED. The archaeological inventory of the project area was conducted by Dr. Miles Gilbert with the assistance of AZGFD Fish Specialist Kelly Meyer in November 2010 and required two person days to complete. Fifteen meter (50 foot) survey transect intervals were employed in the survey. The UTM point locations of the APE were recorded with a Garmin Map 76 GPS instrument set on NAD '83. No cultural resources were found. An electronic query of AZSITE located Site AZ Q:15:74 (ASM) a PIII rubble mound within 100 meters of the proposed APE. The proposed APE will avoid the site by at least 100 feet. A finding of No Historic Properties Affected is recommended for this project.The Eagar Pond and Parking lot APE is located within the area of traditional interest of: The Hopi Tribe, The Pueblo of Zuni and The Navajo Nation. Copies of this report will be sent to each tribe. Please send your comments concerning this project to me at the address above. We would appreciate receiving your remarks within 30 days of receiving this letter.

Sincerely, Arizona State NRCS 

A stamp at the bottom of the letter says:

No Historic Properties Affected

James Cogswell 3/7/11 

Arizona State Historic Preservation Office

Arizona State Parks Board

I encourage readers to ask if a single-page summary report with incorrect and inadequate geospatial data and project information can constitute consultation and to draw their own conclusions regarding SHPO’s concurrence, AZGF’s failure to employ and so oversee their own cultural resource specialist, and FWS’ ultimate responsibility as lead agency.

Advisory Council Wags It's Finger....

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

Watercraft Safety Advisory: Don't Go Down with the Ship

On Wednesday we reported that a whole lot of nuttin' was going on with Amity, but maybe that's not precisely true. The drawn-out process of seeking resolution has provided ample opportunity for many proverbial rats to escape the sinking ship the agencies involved to modify personnel assignments in order to better suit the changing landscape of wildlife management. A summary of selected current and former staff members, their involvement with Amity, and what they're doing now (at least as far as we can tell) is presented in this post.

OK, but what's the point? I want to illustrate the degradation of institutional memory through staff exodus, a process I expect will continue. Knowledgeable folks leave the agency or are shuffled around the org chart, new staff who have never heard of the Amity case replace them, it becomes that much more difficult for resolution to be reached, and it puts a real damper on figuring out how the hell AZGFD decided it would be a good idea to dig a fishin' hole in a graveyard. 

This ought to underscore the need for faster resolution. I can only imagine what this is like for the tribes. Like getting passed from one customer service rep to another and having to explain yourself over and over - except instead of being overcharged on your phone bill, you're talking about the destruction of your ancestors' remains and an insult to your cultural heritage.

Here we go. We'll separate the list into three categories: those who have left their respective agencies, those who have been reassigned within their agencies, and those who have remained in the positions they held during the Amity incident. You may wish to refer to the Field Guide if you need help untangling where some of these positions fall within the AZGFD command structure. 

I expect this list is incomplete. If you know something I don't, please let me know.

THE JET SET: THOSE THAT LEFT

Josh Avey - former AZGFD Habitat Branch Chief, now director of a private hunting and fishing club (maybe?): Avey was the Habitat Branch Chief prior to Amity, continuing in that position through the middle of last year (2012). Item 5 in an April 15, 2011 commission meeting agenda shows that Mr. Avey, listed under the title of Habitat Branch Chief, broached the subject of an agreement with the Town of Eagar for construction and management of a new fishing pond (yes, that pond). Searching AZGFD's web site, he disappears from documents around the middle of last year, with this August 3, 2012 agenda being the most recent mention I can find. Keep in mind - as Habitat Chief, he oversaw PEP, the agency "compliance" unit. One could imagine the discomfort of that position after the New Times article broke. He appears to have left the agency to direct a hunting and fishing club, North American Legacy, incorporated in Texas but headquartered in Phoenix. Here is their TX Corporation Commission filing record. I note they registered in 1999 and are listed as "not in good standing," so it's unclear if that's actually what he's up to these days.

Jack Husted - former Arizona Game and Fish Commissioner, now retired from public life and "spending more time with his family": You might have noticed by now that at the time of this writing, there are only four active commissioners. That is because the fifth, Springerville resident Jack Husted, resigned his post earlier this year amid allegations of sexual harassment. Husted previously was cited for encouraging a minor to shoot a prairie dog out of season, which the kid subsequently accomplished. In fairness to Husted, he is hardly the only agency official to have been picked up on hunting violations, most recently this guy. 

Husted is the only commissioner who is on record talking about the project - speaking in favor of the pond at the April 2011 commission meeting. He also made an interesting statement reminding the commission to not forget their commitments to Becker Lake improvements. Waitaminute, Becker Lake? I thought we were talking about Lee Valley Pond? See, this here's what we call horse trading, son. 

More on that later. In case you haven't yet formulated the notion that Husted is a Good ol' Boy of the first water:

Mr. Jack Husted

(you can call him Daddy)

Kirk Young - former AZGFD Fisheries Branch Chief, now working for USFWS Southwestern Region: Two official announcements, one from 2010 and one from 2012, identify Mr. Young as the AZGFD Fisheries Branch Chief. Remember they were responsible for identifying funding to build the pond. Looks like he's found employment with the feds as a USFWS Project Coordinator.

Kim Ryan - former AZGFD Archaeological Project Specialist, now a field office archaeologist for the BLM: Ms. Ryan appears to have been the lucky winner of the selection process that followed this job announcement during the summer of 2011, following the Amity "discovery." It's hard to say how she was involved though, as she doesn't appear in any agency documentation that I could find. She was the addressee of Northland Research, Inc.'s (NRI's) site assessment report, so probably she had something to do with the coordination efforts that went on in 2012. She is listed as being employed by the BLM as of 2013.

Bill Greenwood - former Town of Eagar Manager, now division manager of a materials company: Mr. Greenwood managed the Town for the 20 years ending in April 2012, and is noted here talking about the pond. He cited problems with adopting new technology as a reason for leaving. He now manages a division of the Northern Arizona Wood Products Association.

Miles Gilbert - former NRCS Archaeologist, now retired: The federal archaeologist AZGFD "borrowed" to inspect the pond construction site as part of the project review process (on state land without a permit). I won't provide any links, but take my word for it that he has recently entered the golden years of retirement.

PICK A CARD, ANY CARD: REASSIGNED WITHIN RESPECTIVE AGENCIES

Gary Hovatter - Former AZGFD Deputy Director, now Special Assistant to the Director: Hovatter held the agency's No. 2 leadership position, just below Director Larry Voyles in the org chart. Alonzo's New Times article quotes Hovatter extensively. In that article, he offered apologies and accepted responsibility on behalf of the agency, stating "we should have known better, but we didn't." He participated in the initial meeting with the tribes (August 2012). Public documents reveal little else about Hovatter's involvement with Amity, but it does seem likely as an upper-level manager active through the Macho B trapping incident, investigation, and subsequent agency restructuring, he probably had something to do with implementing the project review process that is, in my opinion, flawed.

Another possibility is that Hovatter became involved only in his capacity as AZGFD's go-to bulldog, called in when the agency needs to defend itself from reports of such unpleasantness as ESA violations, embezzlement, and creeps. Anytime the agency is under fire in the media, you'll see Hovatter front and center trying to deflect the shots.

He's still with the agency, but I can only speculate as to the nature of his appointment. The June 12, 2013 commission meeting agenda lists him as "Special Assistant to the Director" under item 9A. If you don't know what that means exactly, that makes two of us. Note the letterhead indicates someone named Ty Gray has replaced Hovatter as Deputy Director.

Jon Cooley - Former Region 1 Supervisor, now AZGFD Endangered Species Coordinator: Cooley was Region 1 Supervisor at least as early as 2010 and continued in that position through May of this year (2013) according to this meeting agenda. He might have represented a supervisory figure over pond construction, though that's not clear from the records. In any case he was Kelly Meyer's boss. We can at least say as the supervisor of the AZGFD Region in which Amity took place, he probably had his hands on the project to some extent. He is pictured in the groundbreaking article photo. He is now listed as AZGFD's Environmental Species Coordinator.

HOLDING THE LINE: THOSE THAT STAYED PUT

The entire Project Evaluation Program (PEP) team: This document identifies PEP as consisting of Laura Canaca, Daniel Nelson, Ginger Ritter, and Chip Young. Ms. Canaca is still listed as the PEP point of contact. Ritter's and Young's LinkedIn pages show that both are with the agency, though they may have taken on some new duties. Nelson sat on the City of San Luis small area transportation study TAC group representing AZGFD as recently as 2013 (that's when the document was last updated, anyway).

Kelly Meyer - Region 1 Fish Specialist, probably still Region 1 Fish Specialist: I have heard – and this is hearsay, so I can't prove it – that Meyer was the one AZGFD employee on the ground during the desecration, serving I guess as a project manager/inspector type. I have also heard that FISH SPECIALIST Meyer assisted Miles Gilbert with the pre-construction survey of the location. Again, I cannot prove either of those things. That said, consider these excerpts from NRI's site assessment.

Page 31 quotes a personal communication from K. Meyer to NRI staff: "The pond was excavated using a "ripper" to first break up the ground and then belly dump trucks were used to remove the fill. Smaller front end loaders and backhoes were also used during the pond construction."

And Page 27, "Elements of another in situ burial were removed during the construction of the pond and were not examined by Northland or [NRI's subcontracted bioarchaeologist] during the current phase of the assessment. The location for this burial was mapped based upon information provided by K. Meyer of AZGFD. Although no surface evidence was present for this burial, it was included on the maps but was not considered in our assessment of identifiable human remains or in the calculation of the minimum number of individuals (MNI)."

Sounds like a guy who is pretty familiar with the site and the construction that went on there.

Even if he wasn't involved with the arch survey or the earth moving, he is on record talking about changes to regulations at Becker Lake and the agency's intention to compensate for resulting impacts to the local community by building a pond on the AZGFD's 26 Bar Property. He is listed as a presenter representing AZGFD on this conference agenda from May 2013. It appears he hasn't left the agency, though it I can't say for certain he is still with Region 1. He may have been repositioned to another region or the Phoenix headquarters.

Steve Robertson - Regional Chief of USFWS Wildlife and Sport Fish Restoration (WSFR) Program: Alonzo's article notes that Steve's shop put up the cash to build the pond, granting the money to AZGFD out of the Dingell-Johnson fund, a federal program intended for this sort of project and funded by taxes levied on the sale of boats, fishing gear, and so forth. He was mentioned in the New Times article several times and appears to still be in place at WSFR. AZGFD recently nominated him for an award. 

Again, please point out omissions or errors as warranted.


photo credit: AZGFD 2009. http://www.azgfd.net/wildlife/commission-news/senate-confirms-appointment-of-jack-husted-to-commission/2009/04/23/

Job Announcement: AZGFD Archaeologist

Nope, not any of the ones you've probably seen lately. This is the one they flew shortly after Amity in summer of 2011, downloaded from the posting to Archaeologyfieldwork.com.

I note it doesn't say "hey somebody with credentials please come take care of this mess in Eagar," but in retrospect I wonder if that's what they had in mind.

For your consideration....

Topic ID #13366 - posted 8/18/2011 3:34 AM

Archeological Proj Spct - Arizona Game and Fish Department

Jennifer Palmer

Webmaster

From Google:

ARCHEOLOGICAL PROJ SPCT
Job ID 1000061136
Req Name AGF37-11WS
Location Phoenix
Type Exmpt HF Apvd Mission Critical
Shift
Department Game and Fish Department
Salary Grade 19
Salary Range $33,435-$56,964
Total openings 1
Apply by Aug 26, 2011

Description
This position will advise and facilitate the protection, preservation and management of historic and archaeological resources for the Arizona Game and Fish Department (AGFD) properties and activities. Oversees and advises AGFD staff on cultural resources and consults with the State Historic Preservation Office on archaeology and cultural compliance issues. Conducts cultural resource surveys on projects that benefit the Department; prepares documentation, report writing, GIS and database creation of cultural resources; project management, planning and review. Acts as the cultural resource liaison with other state and federal agencies; forms partnerships related to ensuring the protection and preservation of cultural resources. Develops programmatic agreements or other agreements to partner on compliance issues on private, state and federal lands; provides information on sites that may be eligible for listing to State Museum for inclusion in statewide database. Performs other duties as needed, attends meetings, conferences and training sessions.

Knowledge, Skills, and Abilities: The preferred candidate will have knowledge of state and federal laws pertaining to historic preservation, archeology and cultural resource management. Skills in current scientific archaeological theory, methods and techniques in the identification evaluation and preservation treatment of archaeological resources. The candidate should be able to work independently and as part of a team, be able to manage multiple project tasks simultaneously. The preferred candidate will have a master's degree in archaeology or closely related field and two years of professional experience in archaeology or cultural resources management.
AGENCY JOB BOARD ID: AGF

A Field Guide for the Identification of AZGFD Divisions

Alright, how about some tedious but important subject matter? Forthcoming posts are going to refer to a slew of AZGFD divisions, branches, groups, work units, subcommittees, cabals, and whatnot that won't make much sense unless you can navigate the bureaucratic hierarchy.  A summary of AZGFD's organization follows, with attention focused on those heads of the hydra that are publicly known to have been involved with Amity. 

Please understand that I have no first-hand experience with said organization, and I have pieced this information together from publicly available sources. Clue me in if you notice errors or omissions. 

Take a gander at this somewhat watered-down version of their org chart, excerpted from their Volunteer Handbook: 

I have highlighted the units I know were involved with Amity. Let's start with the state Game and Fish Commission. Basically, the Commission is the body empowered by law to manage the state's wildlife. It consists of a panel of five voting members. You can read all about their purpose, legislative mandate, and implementing regs if you really want to here and here. For our purposes, just understand two things:

1. The commissioners are directly appointed by and serve at the pleasure of the governor.
2. The rest of AZGFD essentially works for the commission. The commission dictates     policy, the rest of the agency implements that policy and/or conducts research used to advise the commission's policy decisions.

The Commission has regularly discussed Amity according to their meeting agendas, though mostly in closed session (transcripts not publicly available). One commissioner in particular, Jack Husted, spoke in favor of the project in public session shortly before construction began. Furthermore, as the agency's policy makers, including them here is only right as part of discussion of a tragedy resulting, in my opinion, from a policy failure.

Moving down the chart. Let's skip the Director's office for now, because Director Larry Voyles has not been publicly active in the Amity case. I imagine he must be engaged internally, but based on public documents we know nothing about his activities (or lack thereof). The managerial role in this case appears to have been largely delegated to the Deputy Directors. At the time of the desecration, two men held this office, Gary Hovatter and Bob Broscheid. Of the two, Hovatter appears to have been more engaged with Amity. 

AZGFD breaks the state up into six regions (see map below, also taken from the Volunteer Manual).  These regions function somewhat autonomously, but are beholden to overarching management and technical support from the Phoenix office, particularly the central Field Operations Division. Region 1 (Pinetop) includes most of northeastern Arizona, including the greater Spingerville-Eagar area. This is where the Amity incident took place, and Region 1 staff members were on the ground during pond construction.

Fisheries Branch is fairly self-explanatory. These folks deal with fish and fisheries. Clearly they would have some involvement in a project aimed at creating a fishery, like the Lee Valley Pond. Fisheries Branch was tasked with identifying funding for the project. Beyond that, I have seen only scant evidence that speaks to the nature and extent of their involvement.

So far so good, but there under the Wildlife Management Division, Habitat Branch is highlighted. How are they involved in all this? They do what? Make sure the bighorn have access to water so we can go shoot them? In fact, yes, that is one of their functions. Perhaps that's unfair paraphrasing - they do many other, less ignoble-sounding things. 

In relation to Amity, we are really only interested in a subset of Habitat: the curiously positioned Project Evaluation Program (PEP). This AZGFD webpage describes their function as follows: "to facilitate the inclusion of fish and wildlife resource needs statewide, in proposed land and water development projects and to identify possible impacts to the Department's wildlife management authorities and State Trust responsibilities," whatever that means.
More to the point, and the reason I say they are curiously placed, the page points out that PEP "ensures environmental compliance through coordination with other state and federal agencies and other Department work units and regional staff. Further, PEP assists with the development of agreements, such as Memorandum of Understanding (MOU) or a Memorandum of Agreement (MOA) [sic]." PEP also "provides technical and environmental policy guidance and oversight through coordinated reviews of internal and external projects, management plans, and related policies affecting fish and wildlife resources" [emphasis added]. 

INTERESTING. So this is where the agency archaeologist is, right? Well, no. PEP has never, so far as I can tell, included a staff archaeologist. Their project review flow chart (source) is telling:

So cultural resources fall under PEP's purview, but the group doesn't perform technical assessments or make determinations themselves - they identify "appropriate reviewers." That is, they pass the buck to SHPO.

VERY INTERESTING. More soon. In the next few posts, we'll take this academic information into the applied realm.

So, what's happening now?

Well folks, a whole lot of nuttin's been going on. Well, at least it seems that way from the public point of view. In fact, there have been meetings, draft agreements, and a whole lot of letters flying about but still NO RESOLUTION. The time to get this back on track is NOW. ARCHAEOLOGISTS ANONYMOUS will be updating this blog in coming days with new and shocking information.

Feel free to subscribe to the RSS feed using your favorite news reader by linking to http://amity-desecration.blogspot.com/feeds/posts/default?alt=rss

Macho B, the Game&Fish culture - "We should have been more diligent"

The byline from the AZRepublic is "

Macho B: Cover-up amid celebrations 'We were instructed to cover up ... we decided to follow orders'

Hovatter, who is still reviewing the criminal files for Game and Fish, said additional disciplinary actions are possible based on new revelations. "We didn't cover ourselves in glory in this," he added. "We should have been more diligent." 

http://www.azcentral.com/arizonarepublic/news/articles/2012/12/09/20121209cover-up-amid-celebrations.html#ixzz2EgcL6SkO

also

http://whistlingforthejaguar.wordpress.com/

exerpts:

Smith eventually confessed his role in the cover-up to state investigators, and admitted making false statements to federal agents. "It's like when you're a kid in junior high and someone pulls down your shorts," Smith told investigators. "You cover up. That was my reaction."

Smith was asked, "Are you sacrificing yourself to protect anyone in this?" Arizona Department of Game and Fish officials redacted his answer from records provided to The Republic.

McCain, who never previously acknowledged a cover-up, told The Republic: "Neither one of us liked the idea, but we were scared. We wanted to protect the department and ourselves. At the time, we thought the department would stand behind us. ... We were instructed to cover up and we decided to follow orders."


Amid the investigations, Game and Fish employees were ordered not to discuss the case with those involved.

Excerpts from Listserv Chatter

These excerpts are quotes from the AAC-L, ACRA-L, and NMAC-L listservs.

------

How to NOT do archaeology. This is a good case study for any agency or client that tries to bypass or shortcut the Section106 process: not only delays, complications, and vastly greater costs in the end, but also possible legal action and some really, really bad publicity.

-----

I heard about this incident (series of incidents?) but didn’t appreciate the full dimensions of the screw up (I would use harsher language but I’m in public).  Bottom line, federal and state agencies don’t seem to understand that the preservation requirements act as an insurance policy against just this sort of thing.  Agency officials either don’t know about the requirements or don’t care about them until one day their failure to follow the regs bites them in the ass.  Then they care.  Case in point.  Missing in all the finger pointing is the terrible loss of cultural heritage.  Only the tribes seem to feel this.  

-----

I respectfully disagree that "only the tribes seem to feel" that this incident is a terrible loss of cultural heritage.  The article clearly quotes Todd Pitezel, Arizona's archaeologist over repatriation, burial agreements and permitting, as being sympathetic to the tribes and working to mitigate the loss:

"In my opinion, they're not being treated with dignity and respect [in this situation]," he says. "This is a spiritual matter for [the tribes]. It's pretty disturbing. And we're just sitting here."
 

His comment about "just sitting here" refers to the fact that according to the law, it is the responsibility of the U.S. Fish and Wildlife to respond to the requests of the tribes, and it appears that they have yet to fulfill this portion of the process to the satisfaction of the entities involved.  People care, but at times their hands are tied by policy. I feel that the real need is policy reform including stricter sanctions and expedited timelines.

We should be careful not to overgeneralize when characterizing those within federal and state agencies.

-----

Point taken, and after all, it appears that a state employee at Game and Fish was the one who took steps to finally halt the construction.  I don’t mean to imply that no one but the tribes care about heritage resources.  In this case, however, it appears that the people who were responsible for ensuring that the work site was properly inspected by a qualified archaeologists before construction started apparently didn’t care enough or didn’t see the need to perform the due diligence that a nearby prehistoric village site would seem to demand.  

-----

 Sure, the article quotes an archaeologist, but otherwise there's a depressingly familiar lack of acknowledgment here that it was an extremely egregious error, one that extends beyond mere institutional responsibility.  It's analogous to what's been going on with the LA Plaza, where disturbance of historic burials is regularly characterized as a simple "mistake" rather than a really horrible violation of propriety.  The fact that we continue to make such "mistakes" is continued evidence that we've set up a bureaucratic process to address such issues as they come up rather than to address deeper cultural misperceptions of indigenous heritage.  

In other words, until high school kids realize on their own that they shouldn't be digging up a Native American graveyard with heavy equipment, we haven't done our job.

--------

Several people posted the archaeology article from the Phoenix New Times on NMAC and AAC listservs.

Again, I'd like to note another recent article http://triblive.com/business/businessbriefs/2793469-74/hanna-company-health-howard-bank-michigan-billion-cemetery-general-pipeline#axzz2Dj7gmRzR in which it is stated "... Gas drillers who plowed through a cemetery for a historically black coal camp community in 2004 were ordered to pay $200,000 in punitive damages on Wednesday, on top of the $700,000 in compensatory damages a Logan County, W.Va., jury had awarded a day earlier... ". The lawsuit took about six years.

Iin the Arizona case, dignity and respect is a fine argument to make, but it seems unevenly distributed across the landscape, and unfortunately, dignity & respect will not assure much long-term preservation without additional tools like law and process and courts and the redress of wrongs.

I might point out  that this is the very same amoral government landscape where the Arizona State Land Department under Fife Symington gave the Casa Malpais property to the City of Springerville to serve as an erstwhile run-down tourist trap in the name of economic development (not preservation), and, where James R. Cunkle's Talking Pots Raven Site ruins field school scam quickly played out a few years back http://www.tucsonweekly.com/tw/08-17-95/outthere.htm http://www.swanet.org/zarchives/gotcaliche/alldailyeditions/97jul/263.html. (There are more examples from the region).

I call the NM-AZ borderlands an amoral government landscape because the area is rural with spotty, poorly developed fragile economy, many federal government agencies have little daily presence there except on an occasional project basis, they pass laws they will not enforce, and the State power centers of Phoenix and Santa Fe are far away ("The sky is big and the emperor is far away" syndrome).

There should be a lawsuit brought by the Tribes (with a class-action lawsuit by archaeological organizations?) against AZ Game & Fish AND USFWS and any additional agencies or individuals who were involved or who contributed their professional negligence to violation of the law in this case.

The lawsuit in W VA took about six years and there is a $900,000 bill to pay. A lawsuit in the Arizona matter (filed by individuals with standing in the case) would send a signal  and be a reminder that proper management and professional archaeological work up front is much cheaper than the alternatives.

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"Dear Sir or Madam,

"We regret to inform you that certain remains of your ancestors have been disturbed in the process of building a fishing pond.

"Please accept our profound condolences in this inadvertent episode.  Rest assured that appropriate mitigation will be in progress shortly: see attached memorandum (a) concerning applicable federal and state policies, and schedule (b) identifying a series of meetings at which remediation measures will be discussed.  Your prompt attendance to these matters will ensure rapid compliance.

"Allow us to note that this unfortunate incident in no way reflects the high regard in which we hold you and members of your community.  Looking forward to conducting these proceedings in a positive and productive manner.

"Sincerely...."

-------

What my fellow archaeologists don't understand is that by not getting the archaeological councils and other professionals into a class action lawsuit, there are no teeth. Then my fellow archaeologists can sit and spin cynical webs of dark humor and continue to accept GS-7 temporary assignments and diminished-pay contract jobs, with Masters degrees and RPA credentials, all the while federal agencies with dignity & respect hire high school students to learn how to run heavy equipment over your favorite sites preserved for just this type of occasion.

This really requires a big honking-ass class action lawsuit by archaeologists, archaeological councils, SHPO in conjunction with a lawsuit by affected tribes. Even if it takes six years.  Otherwise take your trowels and go home, because the USFWS & AZG&F have just punked your colleagues and your regulations, and they can do it any time they want.

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This is a very strange case.  As I understand it, the Arizona Game and Fish Dept, with funding from U.S. Fish and Wildlife Service, proposed to put in a public fishing area right next to Amity Pueblo, a known, recorded historic property of known cultural significance to Zuni Pueblo people and others.  Instead of initiating 106 consultation about the project, again as I understand it, the state agency somehow got an archaeologist from NRCS to survey the site, and somebody (I'm not clear as to who it was) filed a "no historic properties subject to effect" finding with the SHPO, who for unclear reasons concurred.  So the project went forward and bulldozed a big chunk of the site, including at least ten grave sites.  Hard to say who was most responsible for the screwup, but it seems to illustrate one of the problems with not doing what the Section 106 regulations say to do: FIRST initiate consultation, BEFORE you go out and have archaeologists wander around and pronounce about what's there or not.  Had somebody talked with the Zuni, the significance of the site and the need to be careful surely would have come out.

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There have been several multi-million dollar disasters of this sort in Washington State. The major ones known to me are the Port Angeles Graving Dock project and the Blaine Sewage Treatment Plant project.  Darby Stapp and Julie Longenecker have a book out titled "Avoiding Archaeological Disasters"
(Left Coast Press, 2009) that covers these cases, among others. Here's a review http://archaeology.about.com/od/culturalresource/fr/stapp2009.htm

Here's a summary of the Port Angeles Graving Dock situation:
http://www.historylink.org/index.cfm?DisplayPage=output.cfm&File_Id=7344
Also a book about it in 2009 from the U. of Washington Press:
http://www.washington.edu/uwpress/search/books/MAPBRE.html

The state of Washington spent $58 million on the graving dock project (which was to construct concrete pontoons for use in a floating bridge) before it was abandoned and the work moved elsewhere. Hundreds of graves had been encountered (and disturbed) during the early phases of construction, and this was the reason that the project was abandoned and moved. After the project was cancelled, I think quite a lot of additional money was spent to recover and study archaeological material (including human remains) recovered from the construction backdirt.  The Washington Department of Transportation spent only $7000 on the initial archaeological survey of the project location, which found no evidence of archaeological resources, but did note that a large Klallam village site and cemetery was historically known to be located in the general vicinity of the proposed project.

The Blaine Project had a similar history--lots of burials encountered and disturbed after construction started. The cultural resources consulting firm that was involved in the mitigation and monitoring eventually paid the Lummi Tribe $4.25 million as a settlement.
http://www.nathpo.org/News/NAGPRA/News-NAGPRA49.html

The Register of Professonial Archaeologists also took action in this case:
http://www.rpanet.org/associations/8360/files/resources/members_tucker_repor
t.html

Archaeologists and the agencies they sometimes work for need to be aware of these cases. Big money can sometimes be involved, in addition to the loss of irreplaceable cultural heritage.

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Obscene is my most favorable reaction.  A whole bunch of people-governmental entities really screwed up - looks like many are candidates for prosecution/firing, whatever needs to be done to make sure that this never happens again.  There should be lawsuites (and hopefully firings of culpable individuals, formal and heavy sanctions of culpable governmental entities).  The affected Native American community (ies) concerns need to be redressed, and although it is late, some good can still come of this, hopefully, in that such a compendium of mistakes/incompetence may never again affect another archeological site.  Is this the way things are going, or is this just an isolated screw-up?.  This matter cannot be put aside and "lets move on".  Too many mistakes, misjudgements, maljudgements, purposful miscreance, and plain old incompetence.  But mostly, there is no real way to redress the physical loss of much of the site, and the mental toll which this incident is taking on the tribal members.  On and on!!  

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Very sad....

It is a shame that people are still systemically refusing to do archaeology.

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Pursuit of redress under full force of ARPA/NAGPRA is the best thing that could happen to focus the Agencies' AND the local's attention. Filing suit has worked previously. It does require persistence that stretches the members and officers of an organization to near breaking, BUT it needs to be done in this case..

--------

 

Put a statement or letter together to these agencies and to our state and our Federal elected representatives

and allow those who wish to sign it or send it on their own to these entities do so.

A very good exmple of how this can be done online is shown here for the recent Fox Mountain wolf bounty incident

in New Mexico:

http://www.mexicanwolves.org/index.php/news/832/51/Press-Release-WildEarth-Guardians-Sues-for-Information-on-Captured-Mexican-Wolf/d,News2

A link at the bottom of page allows readers to online sign and submit/send prewritten message to both NM US Senators.    

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A petition? That's charming hehehe (LOL). State and our Federal elected representatives are currently fighting over smaller government and less regulation. They are not going to listen to archaeologists and their petitions. AAC should consult with the Tribes and join in filing a class action lawsuit against USFWS & AZ Game & Fish and any additional agencies or individuals who were involved or who contributed their professional negligence to violation of the law in this case at Amity. Why? Because the USFWS & AZG&F have just punked your colleagues and your regulations, and they've re-discovered they can do it any time they want. And, Bonus Points, they now will do it again.

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There is Federal Agency involvement, all Fed laws apply.
The Agency IG and the FBI should receive letters about this illegal activity.
There is State Agency involvement, all state laws apply.
The State Attorney General should receive letters about this desecration.
Since archaeological site protection laws have been in effect, from over a century to only a 'few' decades, neither agency can claim any sort of unawareness.
Even kids in that area know what prehistoric remains look like...
These are knowing offenses. Knowing offenses are FELONIES.

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I think you nailed all of the salient points. I am not sure how much direct input I will be able to give without jeapordizing any future depositions etc. As for working for AGFD, XXX has pretty much determined that it would be extremely unlikely at best. I can however state exactly what we observed since the report has become/ is becoming public record. As you said, I think the better avenue would be to avoid assigning fault, but to address what AAC CAN do. Perhaps a simple lending of support to Zuni, Acoma, Hopi, and Navajo in any future actions- I also know that California tribes currently in negotiations with BOR, USFWS are watching this closely as are SRPMIC and others.

I also think that one of the other issues can be addressed is the issue of using qualified archaeologists for this kind of work. Not only AGFD but other state and federal agencies are apt to use "para-archaeologists" or unqualified archys (vis-a-vis Miles) to cut corners on projects and by doing so we get the 26 Bar screw up. A statement from the AAC illustrating the risks of cutting corners and going for the cheapest solution rather than the right solution may be in order as well. If AGFD would have spent the 5,000 odd dollars to survey their property correctly, they would have avoided the potential 2 million dollar hit they now have. I do not think this point could be stressed enough.

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I would strongly suggest that a letter be drafted to the Advisory Council on Historic Preservation as they are the ultimate authority (quite literally) on these cases. I had good luck with this as part of a neighborhood group that went after a cell tower company for not doing due-diligence (they wanted to put a cell tower in front of the entrance to our neighborhood, which is listed on the NRHP). If they weighed in on our much-less-important matter, I'm sure that they would weigh in on something as serious as this.

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Interesting email chatter about this situation in east-central Arizona.  Unbelievable to me is the fact that we are just now discussing this event near the end of 2012 when it actually happened in spring 2011.  It also seems clear to me that this is a legal issue, although it would certainly be appropriate for the Arizona Archaeological Council to get involved.

...But as we all know, the lead federal agency has a legal obligation under section 106 of the NHPA to take into account the effect of their actions (funding, licensing, permitting) on cultural resources.  It seems to me that the two federal agencies involved, USFWS and NRCS, and the two state agencies involved, AGFD and SHPO, cannot be considered blameless.   

As someone mentioned in this email chain, aside from the poor execution of the laws by the agencies, it is the cultural resources and Tribes who are suffering.

I hope that the state and national archaeological organizations can hold discussions to craft appropriate responses to the agencies.

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According to the PNT article, if the quotes are correct, everyone is waiting for someone else to do something... So the appropriate response was provided by XXX "It also seems clear to me that this is a legal issue, although it would certainly be appropriate for the Arizona Archaeological Council to get involved."

Yes, XXX, it is a legal issue. Two years have passed and everyone is still sitting on their hands. This is a real reason why AAC needs to get with the Tribes if they will be filing a lawsuit. AAC needs to be a part of that legal issue in solidarity with the tribes.

Also, professional archaeologists in the SW have been harmed by this event, too!  Thus, AAC should independently seek standing and file a second lawsuit -- a class action lawsuit -- on behalf of all SW archaeologists and tribes and preservationists. The professional practice of archaeology has been diminished and harmed over the past two years by the improper actions of the agencies to do the work cheaply without proper established procedures, and then to delay resolution hoping the problems will just go away...

------------

The intent of the people in charge versus the lack of lower agency action on
the Amity Pueblo burials desecration makes for an interesting study in
contrast.

Handed to the Tribes today at their meeting with President Obama,  a
Memorandum of Understanding by DoD, DOI, DOE, USDA and ACHP "to improve the
protection of and tribal access to Indian sacred sites through enhanced and
improved  interdepartmental coordination and collaboration."

------------

The Goldwater Institute hates regulation, but they hate really bad government more than they hate regulation. They often take on cases ...

Swallow hard. Gulp.  You can come up with additional examples if you don't like the Goldwater Institute -- AZ Center For Law In The Public Interest  http://aclpi.org/   More ??

Have you contacted anyone and asked for help with a class action lawsuit to address this issue of poor performance, damage,  and lack of redress and accountability ?

The case described below is really bad government in really bad government action.

In this case, the FEDS ignored compliance with their own rules of procedure and redress. The goal was to build a noble, well intentioned fishing pond for the public -- on government property -- then they completely fouled up. And now, they continue to sit on their hands hoping the issue will just go away. Not only has bad government created an amoral landscape in a small community and harmed the town's reputation, bad government also has harmed the Tribe's cultural patrimony, and harmed the many people (YOU) who work professionally in the public and private sectors to provide history and preservation and mitigation services to other governments businesses and the public.

-----------

I think another point that is being lost with all the talk of lawsuits and is perhaps more in the purview of the AAC is how this thing happened in the first place. Yes there were failings throughout the process however it all started when an agency and an archaeologist failed to "realize" that digging a pond immediately adjacent to a 60 room pueblo just MAY be a bad idea. Then when the agencies with oversight are hamstrung by state law and lack of funding these kind of things unfortunately take place and we get the tragedy that everybody, but particularly Zuni, Acoma, Hopi and the Navajo Nation are dealing with.

To hearken back to what XXX mentioned, the AAC has a stated purpose in the bylaws to "To educate the public about the goals and methods of archaeology". This public includes agencies that try to cut corners by not retaining permitted and qualified archaeologists to do their cultural resource compliance prior to any bulldozers desecrating a sacred Zuni place (in this case). If anything this case shows how by trying to save a couple of thousand dollars by not using a permitted/ qualified CRM firm it is going to cost the state and the agencies many more times that amount (and rightly so).

Rather than asking the AAC about filing lawsuits, perhaps we can begin a dialogue on crafting an open letter to our state agencies reminding them of their responsibilities as the administrators of our State lands and the importance of not always looking for the cheapest route possible during archaeological compliance. Rather than using unsupervised "para-archaeologists" or people "whose brother is an archaeologist" these agencies need to start looking for qualified archaeologists that have the capabilities and necessary permits to do the job.

The ACHP is involved in the Amity Pueblo discussion and will work out issues of fault and redress, I'm not sure an AAC lawsuit if even feasible will accomplish much. However, if the AAC works to remind agencies that the days of "cowboy archaeology" are over and that there are procedures that they HAVE to follow while advocating for us- the professional archaeological community- I think we will all be better served. More importantly perhaps Native American groups will no longer experience what Zuni, Acoma, Hopi and Navajo is experiencing right now and we will no longer have to discuss the destruction of sites like what has happened in this case.

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Isn't this approach something like what the SHPO does anyway -- sending letters out to all the parties so the letters can be promptly ignored? Why would we want to replicate that? The SHPO already does that.  The clock is at two years and ticking and everyone is sitting on their hands. I do appreciate how open letters to our state agencies -- sending kind little reminders -- will make some feel good, even while the responsible agencies continue to give you what you've always gotten. That is what they are doing right now -- waiting you out  -- while you cave in -- because you think it takes too much time, too much effort, too much solidarity, or too much money, to hold them accountable for their bad behavior. Why can't you go to the Tribes? Why can't you go to the ACHP? Why can't you go to the AZ Center for Law in the Public Interest to actively seek a partnership that will sue their pants off.

As professional archaeologists you have been deeply harmed (financially & social status as professionals) and you may not even recognize it, but you've also completely mistaken the issue and twisted it. The days of cowboy archaeology certainly are over, but the days of cowboy development clearly are not over.  The unqualified archaeologist in the matter is just a pawn. The responsible agencies continue to give you what you've always gotten. The regulations and the reminder letters are nothing but shredded bedding material for hamsters. The agencies are the responsible parties. They cooked-up the cut-rate disaster.  You must act decisively to form a partnership to take them to court, and sue them and fine them, and make them be accountable for following their own policies and laws.

Allow me to quote again: "... Disasters are almost by definition about the failure of authority, in part because the powers that be are supposed to protect us from them, in part also because the thousand dispersed needs of a disaster overwhelm even the best governments, and because the government version of governing often arrives at the point of a gun. But the authorities don't usually fail so spectacularly. Failure at this level requires sustained effort. The deepening of the divide between the haves and have nots, the stripping away of social services, the defunding of the infrastructure, mean that this disaster - not of weather but of policy - has been more or less what was intended to happen, if not so starkly in plain sight."  http://www.harpers.org/ The Uses of Disaster: Notes on bad weather and good government -- Rebecca Solnit September 8, 2005 (emphasis added).

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The harm that Zuni, Acoma, Hopi, and Navajo feels is much greater than any that we as archaeologists could possibly feel. I saw their faces when they were taken on the site tour, and the pain expressed on all of their faces has left an indelible mark on me that will remain forever.

As for us being "waited out" I think I can speak for most when I say we are well aware of this tactic; HOWEVER, the tribes ARE engaged and ACHP IS engaged. This will play out in arena bigger than a potential lawsuit from the AAC, and I have no doubt this will become a new case study in the ACHP Sec. 106 training. Don't get me wrong, but honestly do you think the Washington players and other sundry parties give a damned if the AAC files a lawsuit? This is much bigger than that. Instead of shooting the budget for the next umpteen years filing an AAC lawsuit, an offer of solidarity with the tribes (let them decide if they want any action by the AAC since they have been done the most wrong)and public education seems like the best bet. The agencies are in the process of being held accountable as we speak.

Perhaps I am being too pragmatic but I think the AAC will achieve more through the education part of the bylaws, perhaps if there was a program that gave those "kids on dozers" a cultural sensitivity/ awareness before they ever started digging...who knows. I can appreciate your cynicism about the reminders, I have been doing this long enough to see the disregard for the process time and again, but we really need to assess exactly what we intend to do and what we want to change before throwing the term lawsuit around. Additionally we need to look at the current laws that hamstring those charged with oversight of these projects and their lack of funding...

------

My statement was " Why can't you go to the Tribes? Why can't you go to the ACHP? Why can't you go to the AZ Center for Law in the Public Interest to actively seek a partnership that will sue their pants off."    The operative words I wrote there were "go actively seek a partnership. " Earlier in the conversation I also wrote "Not only has bad government created an amoral landscape in a small community and harmed the town's reputation, bad government also has harmed the Tribe's cultural patrimony, and harmed the many people (YOU) who work professionally in the public and private sectors to provide history and preservation and mitigation services to other governments businesses and the public.

Now you've written "Perhaps I failed to clearly make my point.. I did the damage assessment out there and I KNOW what was done, and who has been harmed- and quite frankly the harm that Zuni, Acoma, Hopi, and Navajo feels is much greater than any that we as archaeologists could possibly feel." You also  wrote " ... an offer of solidarity with the tribes (let them decide if they want any action by the AAC ... "  You did not fail to make your point. You did make your point. But not to diminish the Tribes involved in any way, there is a lot of harm to go around for many.

We may be saying the same operative thing: The partnership could decide the precise action to take.

But not to diminish the archaeologists in any way, I will reiterate: "As professional archaeologists you have been deeply harmed (financially & social status as professionals) and YOU MAY NOT EVEN RECOGNIZE IT, but you've also completely mistaken the issue and twisted it. *The days of cowboy archaeology certainly are over, but the days of cowboy development clearly are not over."

In the end, this is why the AAC must also take action to get involved & seek the partnerships, make decisions to act in solidarity, and follow through with taking action.

It does not matter what the Washington players think about the AAC. The AAC must put it's organizational skin into the game.  AAC, take some action, dammit.

I won't be shy about it. It is perfectly acceptable to throw around (introduce) the concept of lawsuit to the conversation if it will spark partnership to create standing and and action. And, it is perfectly acceptable to initiate a lawsuit proceeding if the partnership points in that direction.

" There should be a lawsuit brought by the Tribes (with a class-action lawsuit by archaeological organizations?) against AZ Game & Fish AND USFWS and any additional agencies or individuals who were involved or who contributed their professional negligence to violation of the law in this case. The lawsuit in W VA took about six years and there is a $900,000 bill to pay. A lawsuit in the Arizona matter (filed by individuals with standing in the case) would send a signal and be a reminder that proper management and professional  archaeological work up front is much cheaper than the alternatives. "

A partnership signifies a willingness to commit to a plan of action. A threat of lawsuit -- or a real lawsuit -- can be a type of education that Agencies will understand. They certainly don't seem to understand the earlier letters and admonitions that were passed along in the case.

(emphasis added)

I urge AAC to get some professional skin in the game, or as Geertz said of Jeremy Bentham's concept, get some "Deep Play" in the game

http://webhome.idirect.com/~boweevil/BaliCockGeertz.html
http://webhome.idirect.com/~boweevil/BaliCockGeertz2.html

" It is in large part because the marginal disutility of loss is so great at the higher levels of betting that to engage in such betting is to lay one's public self, allusively and metaphorically, through the medium of one's cock, on the line. And though to a Benthamite this might seem merely to increase the irrationality of the enterprise that much further, to the Balinese what it mainly increases is the meaningfulness of it all. And as (to follow Weber rather than Bentham) the imposition of meaning on life is the major end and primary condition of human existence, that access of significance more than compensates for the economic costs involved. " (emphasis added).

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The "bigger player" argument fails because that level of policy already exists in Law and CFR, yet local agency players continue to ignore or soft-pedal the law and regs. Another fine Wash D.C. settlement, published, circulated, announced to reinforce policy will get attenuated by distance as have the existing Law and regs.

Don't underestimate the power of a "local" law suit. When NMAC sued the Forest Service for dereliction in antiquities duties the results helped create change at a much wider level than the one forest, one site origins of the suit.

Also, do not overestimate the costs. As Brian has repeatedly mentioned, there are many avenues of force multiplication; PIRGs, pro bono legal sources, avocational groups, good governance groups, broader spectrum environmental groups, that share at least part of our profession's special interests. And, when you win, the malfeasant agency(ies) pay your costs as part of the settlement.

But, the members must be prepared to step outside their sinecures, and be willing to use outrage as leverage for a good cause.

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It does sound as though this is now active on a high level, and that some parts of this discussion would have been more appropriate if we'd heard about this a year ago. However, I still think that it's important to let the folks in DC (and I still think having more and more folks/organizations contact the ACHP is a good idea. CONSTITUENCIES MATTER!)
BUT... That's not what I'm trying to say in this email.
At the risk of making a fool of myself again (not hard to do), I want to make a plea for unity and action.
I hear and share the frusttration, and I share it. But let's use this situation to bring us together and have those conversations about what we need to do, and how we can accomplish those goals.

Having worked for an agencies, a municipality, universities, museums, and private CRM firms, I can tell you that ALL of us care deeply about what we do. We certainly don't do it for the money. Agencies have stuck their necks out, (and sometimes my neck), with good and disastrous results, and they continue to do so. Often behind the scenes. I've been there with them(as an underling or bystander, usually) taking on some pretty tough situations. Remember the disaster out in the Los Robles area with all the blading of state land, mountain sheep going blind, dozens of sites affected? Agencies stepped up on that one, big time. Other times, things go to court and the perpetrators/looters/ get away with everything.
All of our hands are tied to some extent, and most of us do the best we can within very real limitations. All of us want to be able to do more.

This is the most heart-felt discussion I've seen in a long time. Can we get together somewhere and talk about how to reorganize ourselves to police ourselves better? Form some sort of an alliance that can accomplish something? So far when I've been part of these conversations, they always get to a point where it's decided that we need to do something, but then we hit a brick wall. We decide it's too difficult, that no one will agree, that there's nothing to do after all, that it's Someone Else's Problem (and/or fault).

So: What do you think? Can we make it our problem?

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