Geothermal Projects and Indian Tribes: Dealing with Cultural Resources Issues

Michael P. O’ConnellMichael P. O’ConnellStoel Rives LLPStoel Rives LLP

moconnell@stoel.com

206-386-7692206-386-7692

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

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Principle Federal Laws National Historic Preservation Act

(NHPA), Section 106, 16 U.S.C. § 470f• Federal agency must “take into account the

effect of the undertakings on any” properties listed on or eligible for listing on the National Register of Historic Places.

National Environmental Policy Act (“NEPA”)• Federal agency must evaluate impacts of

proposed action and alternatives on cultural resources

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Federal Land NHPA and NEPA apply to federal agency

actions Native American Graves and Repatriation

Act (“NAGPRA”) protects Indian human remains, funerary objects and cultural resources

Archaeological Resources Protection Act (“ARPA”) requires permit for removal of NAGPRA protected objects

NAGPRA and ARPA require agency consultation with tribes

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Federal Land Cases Pit River Indian Tribe v. Forest Service,

(9th Cir. 2006) (BLM and Forest Service geothermal project approvals set aside for failure to take into account impacts on tribal cultural resources)

Comanche Nation v. U.S., (W.D. Okla. 2008) (Army construction project enjoined for failure to take into account impacts on tribal cultural resources)

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Indian Reservations

Tribal cultural resource protection laws NHPA and NEPA apply to federal actions NAGPRA and ARPA apply Attakai v. United States, (D. Ariz. 1990)

(enjoined range fencing project pending consultation; consultation determined no tribal historic properties were affected)

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Other Land

Most states have laws protecting Indian graves and cultural resources

NHPA and NEPA when federal action is involved

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Other Land Cases

Lummi Nation v. Golder Associates, Inc., (W.D. Wash. 2002) ($4.25 million to settle state-law claims regarding impacts on Indian graves; site abandoned)

Port Angeles Graving Dock (Washington DOT abandoned site after three years and over $80 million investment, despite prior (inadequate) consultation with SHPO)

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Traditional Cultural Properties (TCPs)

Properties of “traditional religious and cultural importance” to federally recognized Indian tribes may be “eligible for inclusion on the National Register.” 16 U.S.C. § 470a(d)(6)(A)

“Federal Agency shall consult with any Indian tribe . . . that attaches religious and cultural significance to [such] properties,” 16 U.S.C. § 470a(d)(6)(B)

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NHPA Section 106

Federal agency must “take into account the effect of the undertakings on any” properties listed on or eligible for listing on the National Register of Historic Places.

Like NEPA, section 106 is a “stop, look, and listen” procedural statute

Compliance is federal agency’s responsibility

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Section 106 Process

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

Section 106 regulations prescribe a rigorous, multi-step process

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1. Identify Interested Parties and Tribes

Agency official “shall make a reasonable and good faith effort to identify any Indian tribe . . . that might attach religious and cultural significance to historic properties in the area of potential effects [APE] and invite them to be consulting parties.” 36 C.F.R. § 800.3(f)(2)

Interested tribes may be hundreds of miles from the APE

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2. APE Determination

APE is area where undertaking may cause alterations to character or use of historic properties

Regulations require agencies to consult with the SHPO or tribes for this step; failure to do so may generate disputes regarding APE scope

Some section 106 consultations establish one APE for traditional historic properties and another for TCPs

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3. Identify Historic Properties Within APE Consult with SHPO and any Indian tribe that

might attaches religious and cultural significance to historic properties in the APE

Agency’s level of effort:• Reasonable and good faith effort to carry out

appropriate identification efforts

• “[T]ake into account confidentiality concerns of Indian tribes.” 36 C.F.R. § 800.4(b)(1)

• Phased identification may be used for linear projects, large areas, or where access to property is restricted – § 800.4(b)(2)

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4. National Register Listing Eligibility

For properties outside reservation, agency needs SHPO concurrence; inside reservations, THPO or Indian tribe

If SHPO/THPO does not concur, eligibility issue goes to the Keeper of the National Register

Agency must acknowledge that Indian tribes have “special expertise” in assessing eligibility of TCPs

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National RegisterEligibility (cont’d) If the agency and Indian tribe disagree on

eligibility:• The action agency may agree to regard the

property as eligible and proceed to next step of assessing adverse effects

• Tribe may request the Advisory Council on Historic Preservation (ACHP) to request an eligibility determination by the Secretary of the Interior under 36 C.F.R. Part 63

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5. Assessment of Adverse Effects Agency must consider the views of

Indian tribes An adverse effect exists if an undertaking

may alter any characteristic that qualifies a property for National Register listing in a manner that would “diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association.”

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Assessment of Adverse Effects If a timely objection is made, the agency must

consult with the objector or request ACHP review.• If the ACHP timely responds, the agency must

prepare a summary “that contains the rationale for the decision and evidence of consideration of the [ACHP’s] opinion”

• The agency can adopt the ACHP’s response or affirm it’s no adverse effect determination; either way, the agency’s section 106 responsibilities are fulfilled.

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Assessment of Adverse Effects

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

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7. Resolution of Adverse Effects Avoidance, minimization, and mitigation

• If agreement is reached at this step, set it forth in MOA Required MOA signatories

– Action agency– SHPO/THPO (if effects are within a

reservation) Invited signatories are not mandatory

– Indian tribes may be invited to sign for effects outside reservation

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Resolution of Adverse Effects

Inadvertent discoveries protocol• May be included in MOA• If not, and inadvertent discovery is

encountered, consultation must be initiated Muckleshoot Indian Tribe v. Forest Service,

(Forest Service failed to consider alternatives that could have protected tribal member cultural and religious uses in land exchange)

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8: Failure to Resolve Adverse Effects

Consultation may be terminated by agency, SHPO/TPHO or ACHP

Unless THPO or tribe is involved for on-reservation impacts, a tribe cannot terminate a consultation

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9. Section 106 Program Alternatives Authorized by 36 C.F.R. § 800.14

• Alternate procedures • Programmatic Agreements (PAs) for

phased identification, large areas, corridor projects – 36 C.F.R § 800.14(b)(2)

• ACHP approval required Agency proposing program alternatives

must consult with affected tribes

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Confidentiality Tribes frequently are concerned that

providing information may lead to looting or impede their use of sites

Under section 304,16 U.S.C. § 470w-3(a), an agency may withhold information from public disclosure• That would cause an invasion of privacy• Risk harm to historic resources• Impede use of a traditional religious site

by practitioners

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Confidentiality (cont’d)

Agency head must determines that the information qualifies under section 304(a) and the Secretary of the Interior must determines who may have access.

Information not so protected is subject to disclosure under the Freedom of Information Act and NHPA regulations, 36 C.F.R. § 800.2(d)(2)

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Inadvertent Discoveries

PA or MOA may address what to do – if so, implement the plan

If not:• Initiate consultation if discovery occurs

after section 106 process is completed and agency has not approved the undertaking

• If agency, SHPO, and Indian tribes agree that property is of value solely for data recovery purposes, data recovery may be conducted under Archaeological and Historic Preservation Act

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Inadvertent Discoveries

• If undertaking has been approved and construction has commenced, agency must determine actions that resolve adverse effects, notify SHPO, interested tribes, and ACHP within 48 hours of discovery; SHPO, tribes, and ACHP have 48 hours to respond; agency must take recommendations into account, carry out appropriate actions, and report to SHPO, tribes and ACHP

On federal and Indian reservation lands, NAGPRA and ARPA also apply

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Resources Consultation with Indian Tribes in the Section 106 Review

Process: A Handbook (ACHP November 2008) Policy Statement Regarding Treatment of Burial Sites, Human

Remains and Funerary Objects (ACHP 2007) S. Hutt et al, Cultural Property Law: A Practitioner’s Guide to the

Management, Protection, and Preservation of Heritage Resources (American Bar Association 2004)

T. King, Places That Count, Traditional Cultural Properties in Cultural Resource Management (2003)

T. King, Cultural Resource Laws and Practice: An Introductory Guide (2000)

Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties, National Park Service, U.S. Department of the Interior