Message #306:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: BLM-SHPO Protocols
Date: Fri, 8 Aug 1997 10:33:22 -0700

From:  John G Douglas 

Brian-- I believe you forwarded Dave Phillips' message to the SWA list
and perhaps others; will you do the same with my reply? (I already asked
Dave to forward to nmac-l and acra-l, which bounced me as a
nonsubscriber.) Thanks.   --  John

Date:  08/07/1997  03:37 pm  (Thursday)  
From:  John G Douglas
Subject:  BLM-SHPO protocols


Regarding your concerns about BLM-SHPO protocols, we talked with Lynne
Sebastian and came to the understanding that she can appropriately ask
for advice from any New Mexico group whose interests she represents. She
plans to do that.

As Steve Fosberg's letter to you indicated, public participation in the
development of this kind of instrument -- analogous to a cooperative
agreement or memorandum of understanding -- is inapplicable from our
of view. It simply doesn't meet the thresholds. More troublesome, it is
virtually impossible for us to do less than full public participation --
that is, to target a specific segment of the public and not others --
without running into conflict with the Federal Advisory Committee Act.
There is no problem if we are just keeping individuals or groups informed
in general; and we can always accept ideas about how to make things work
better. However,
when we ask non-government entities to give us their advice or
recommendations, we have to do it according to strict public
participation standards. (The purpose of this safeguard is to keep any
one interest from having undue influence over Government actions.) It
isn't that we mind doing public participation--BLM does it all the time
as an integral part of decision making--it's just that a general
agreement like a protocol, which doesn't make decisions or commit
resources, doesn't warrant it. 

Steve's letter indicated that BLM welcomes an ongoing exchange with the
New Mexico Archeological Council, and I know he meant it without
reservation. Preservation associations such as NMAC, among other
interested parties, are given an open opportunity in the PA to identify
themselves to us: "The Preservation Board will also confer regularly with
individual SHPOs and such other parties as have identified themselves to
the Board as interested parties, including Tribal Preservation Officers,
local governments, and preservation associations, to promote consistency
with State, regional, and national practice, to identify recurrent
problems or concerns, and to create opportunities in general to advance
the purposes of this agreement." (Please note, this doesn't say 'to
participate in developing BLM-SHPO protocols.') We expect NMAC's
contributions will be an essential part of helping us ensure conformance
with the body of accepted New Mexico professional practice.

Let me give you a little background that I think might help. A major goal
of the national PA is to cause meaningful up-front SHPO and public
considerations to enter into BLM decisions. I emphasize: up-front. Under
the decades-old 36 CFR 800 structure, historic properties tend to get
considered at the end stages of decision making, when it's generally too
late to influence the big decisions that commit geographical spaces--and
unknowingly the historic resources they contain--to effects in the first
place. The goal is for SHPOs and others with historic-resource
information to help us make *those* decisions, the big decisions, the
land-use planning
and EIS-based decisions, from the perspective of what would be better for
historic resources. 

I think it is verifiably true that the BLM national PA would not have
been signed if not for the fact that the Advisory Council and the
National Conference of SHPOs are comfortable with BLM's track record for
dealing appropriately with the great majority of Section 106 compliance
cases. The basic starting point for negotiating the PA was the other
parties' recognition that the BLM--working with the products and
recommendations of professional consultants to land-use applicants--has
adequate professional staff and adequate program guidance to arrive at
appropriate Section 106 decisions. In those routine, normal,
run-of-the-mill cases, SHPO and/or Council review nearly always ends in
consensus; that is, the SHPO and/or Council review does not change or
improve the quality of the BLM-recommended course of action. In
functional terms, a lot of the  routinely occurring SHPO and Council
review of BLM undertakings does not serve a useful purpose. In  practical
terms, time and staffs' energies are wasted. 

The conceptual basis for the PA, then, is to allow the BLM and SHPO to
create a structured relationship that relieves each of them from
unproductive case-by-case reviews--but not from case reviews where
resources or circumstances are out of the ordinary  -- and frees them for
proactive and collaborative work, for example, bringing the SHPO's
expertise and preservation information to bear in BLM's planning and
environmental analysis, earlier and more consistently, improving the
overall decisionmaking context.

I hope that you and other members of the NMAC will work closely with
Lynne and with BLM in finding ways to help make BLM's process succeed.

 --  John

John G Douglas, PhD
Preservation Officer
Bureau of Land Management
Washington DC

>From: (david a jr phillips)
>To:>Date: 97-07-27 14:13:34 EDT
>On June 18, I wrote to the New Mexico BLM, asking for NMAC to be an 
interested party in the development of the New Mexico state protocols
under the new BLM nationwide programmatic agreement.  On July 1, I 
received a letter from Stephen Fosberg, the BLM New Mexico state
archaeologist, stating that the state-level agreements were "internal
administrative documents" and turning down NMAC's request.  It appears
that the BLM's intent is to prepare the state level protocols, which will
affect every cultural resource on BLM land in New Mexico, without any
input from any interested group.  And this is not just a NMAC issue.
Tribes whose ancestors are buried on BLM land, oil and gas companies,
utilities, ranchers, and everyone else with a stake in how the BLM makes
decisions, will not have the slightest chance to comment on these very
critical decisions.  This is a very disturbing development; in its very
first opportunity to display what it will do when given some freedom of
action on cultural resources, the BLM has opted to slam the door on
public involvement.  My question is, what do they have to hide behind
that closed door?

Dave Phillips
President, NMAC

From:  Dave Phillips 

Here is my response to John Douglas's e-mail.  The same issues being played 
out in New Mexico apply to every other state where there is BLM land, and I 
encourage archaeologists in those other states to find out what is 
happening, while there is still time to influence the outcome.

Dave Phillips
President, New Mexico Archaeological Council

From:  Dave Phillips 
To: John G Douglas 
Subject: Re: BLM-SHPO protocols


Thanks for your long and thoughtful message about development of state level 
agreements pursuant to the BLM nationwide PA.  I'll start by stating that 
even when I write nasty letters to Steve Fosberg, I have only the highest 
opinion of him and his efforts on behalf of cultural resources...

If the NM SHPO provides a format for public input on the draft state 
agreements, NMAC will use that format, but I honestly feel that the BLM is 
making a mistake by not actively establishing its own format for public 
input on those same documents.  If it is a headache to do so, it is still 
worth doing so.  I disagree with the administrative call that the state 
level agreements to not rise to a level that warrants formal public review.

For NMAC, how we provide input is not as important as simply having the 
chance to provide input, and believing that our input will be considered 
carefully.  Routing our comments through the NM SHPO will take care of that. 
 I still believe that under Section 110 of NHPA, you should take our 
comments independently, but I'm not going to stress form over results.

For tribes, however, there is the issue of sovereignty.  By not accepting 
tribal comment except as piped through the state, you are in effect 
requiring the tribes to give up their sovereign status or remain unheard.  I 
don't see why they should do this.  In fact, under Section 110, I'm not sure 
that they have to.  You should carefully consider whether the effort saved 
in not having a formal BLM comment process is justified by the insult to the 
region's tribes, or even legal given your Section 110 obligations.

In sum, I'm glad that a dialogue is developing over this issue but I still 
strongly urge the BLM to take the extra step of making this a more open 
process now, instead of waiting until the state level agreements are in 

Dave Phillips
President, New Mexico Archeological Council