Protecting Cultural Resources in the West Mojave

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As part of my ongoing land use efforts, I spent many hours last year helping the BLM craft a Programmatic Agreement for the evaluation and protection of cultural resources in the West Mojave. The Programmatic Agreement was done under Section 106 of the National Historic Preservation Act. While the majority of cultural sites are remnants of native occupancy, a significant number are historic remnants of our more recent mining past.

As part of the ongoing identification efforts, the BLM developed an amazing predictive model for locating assets. Using data layers that identified elevation, slope, watersheds, plant species, animal migration patterns, etc., the confluence of multiple elements identified areas of increased probabilities. While the BLM's records up to that point had identified 10,000 cultural sites, the predictive model demonstrated a probability that they would eventually identify 500,000 sites!

Without being a rocket scientist, it took me like a nano-second to realize that identifying and protecting 500,000 sites could have a profound impact on recreational access. So I asked to be a participant. Eventually I asked to become a signatory to the final agreement, committing to a twenty year stint helping the Bureau implement the plan. The State Director signed the PA last September.

Since then, an initial sampling survey was done, which revealed some results that were very disturbing to me. As an FYI, enclosed is my formal protest letter to the BLM regarding what has now been made much clearer by the initial sampling survey.

 

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June 25th, 2016

Tiffany Arend

District Archeologist

California Desert District, BLM


Tiffany


I am writing to inform you of my decision to suspend participation in the HPMP process. For reasons explained in more detail below, I have severe reservations about the way the sampling survey was conducted, the way the eligibility determinations were made, and most importantly, how all the ineligible assets are going to be treated. Because of this, I do not wish to participate in furthering the goals of the PA through the HPMP process until these issues are resolved.


Since the June 6 release of the first sample survey, I have become increasingly concerned that in becoming a signatory to the BLM's Programmatic Agreement for the protection of cultural resources in the West Mojave [WEMO106], I have become an unwitting accomplice to one of the more insidious creations of the twentieth century: the cap and trade program. For those of you who are not familiar with cap-and-trade theory, the basic principle is that when a cap is set on something, it often becomes a trade-able commodity.


The first avenue in which I was exposed to this theory was the right to pollute. The premise is that once an air quality standard for an area is set, in order for a new business to locate in that area, they either have to produce no additional pollution, or they have the choice to locate elsewhere, OR they can buy out someone else's right to pollute. The gross emissions for which an already-existing business has a legal permit with the air quality management district thereby becomes a marketable commodity. To those who hoped that air quality regulations might someday lead to a tapering off of fixed-source emissions, this was a gross subversion of the law; to 'realists' it was a reasonable balance that ensured a viable tax base would remain.


Next I learned that in the downtown LA area, a building height regulation of 12 stories had been enacted. The owners of parking lots instantly had 12 vertical stories of property value added, air space which may have been problematic for them to build on, but which they were now free to sell to a high rise builder. Same environmental concerns, same 'business friendly' tradeoff. This manipulation bothers me just the same as the right to pollute. To me it smacks of the same arrogance with which DWP dealt with Owen's Valley: money equals power.


So then the DRECP comes around, and I'm on fire about the idea that species habitat is now being quantified as a commodity, with the powers that be deciding that in yet another bow to commerce [in the form of renewable energy projects], some habitats can be fragmented, or worse, because they have determined that a theoretically sustainable 'cap' exists for species preservation in other locations. Again, subversion or accommodation? It's a matter of opinion, but one on which I am obviously not neutral.


Now here I am, involved in a programmatic agreement to identify and protect cultural resources in the Western Mojave desert. Realizing the potential conflicts with recreation, but very much interested in preserving cultural values, I thought [and still think] it is important to be involved. So I got involved. I contributed a lot to the development of the Programmatic Agreement [PA] that the BLM State Director signed before he left office last September. Worthy goals for identification and protection were on the table, and I was proud to be a part of it as a signatory Consulting Party.


Fast forward to June 2016. Now we're 'in the dirt', faced with our first identification efforts. The BLM released it's first report to the Consulting Parties a couple of weeks ago. It took a few days for the warning lights to start flashing in my head, but eventually they did. Out of 298 sites identified in the initial sampling survey, only 10% 'qualified' for protection under the National Register of Historic Places [NRHP]. More importantly, it appears under my understanding of the [PA] that only those sites that 'qualify' for NRHP designation will get a Historic Properties Treatment Plan [HPMP]. The rest will have the more generic protections provided by FLPMA and ARPA. In case you need reminding, these are the same dubious plans that allowed for the burning and razing of hundreds of historic cabins during the 1980's and '90s.


So my first heartburn with this process is the realization is that cap and trade policies have already come into play in the identification and evaluation efforts. In a land-management version of the adage that familiarity breeds contempt, if there are multiple sites of a certain variety in a discrete area, say lithic scatters, the value to a mainstream archeologist is much lower than if there was only one. In this way, a site looses some of it's discrete and distinct value because of being compared to others, rather than being evaluated solely on it's own merit. We tend to cherish most that which we recognize we are on the verge of having no more of. Conversely, if multiple sites exist, they become more 'familiar,' less singular. Put another way, considerations of quantity often end up effecting considerations of quality.


In the case of Native American sites referred to in the dry nomenclature of the initial report as “lithic scatters”, I share the opinion of anthropologist and author Carlos Castaneda that each and every one of these sites is a “place of power.” These sites were not chosen randomly by those who used them. And just because it's value cannot be quantified by a mainstream archeologist on a rapidly-deployed random sampling survey does not mean it has no cultural value. And cultural value was something SPECIFICALLY IDENTIFIED in the PA process as a component of the identification and evaluation process.



However, even as Consulting Parties, we are ultimately left with having to take the BLM's word for their efforts to weigh these values in the designation process: due to confidentiality concerns, they cannot tell us where they are.


From my discussions with TIPO Bob Robinson, also a Consulting Party in this process, I understand that the perfunctory designation of “lithic scatters” is actually much more problematic than I suspected. He indicated that many sites of major significance may have already been looted to the extent that only lithic scatters remain. In this event, the contractors' perfunctory assessment based only on what is directly observable today gives woefully inadequate consideration to the site.


Mr. Robinson also indicated a very real concern that some of what is referred to as lithic scatters in this initial sampling survey may be in fact purposely fragmented and broken objects of a funerary nature. According to Mr. Robinson, it was and still is a common tribal custom to burn a dead person's possessions when they pass, and to break those things which cannot be burned. There is no way to determine from this report if those objects have been properly recognized as such.


Moving on from these specific reservations regarding the sampling survey [there are more...lots more], the next question is: For the 90% of sites that are declared 'ineligible', what will be their fate? Again, assuming my understanding of the PA is correct, they are not eligible for direct and discrete Historic Properties Management Plans [HPMPs], only the generic management prescriptions mentioned earlier. But even those baseline management principles are 'on the move' as well.


Consider for a moment the BLM's new mantra: landscape level planning. Most of us saw this hydra raise its head for the first time in the DRECP. The promise of cross-jurisdictional, integrated management is as alluring as the mythical Sirens were to those in the time of Homer. But as those of us who had the opportunity to look 'behind the curtain' at the driving force behind landscape-level planning in the DRECP discovered, the results were just as potentially lethal as those of the Homeric legend.


Picture for a moment the absurdity of the logic that says we can cut down all the trees in North America because there are still plenty of trees in South America. If you paint in a picture of a large enough landscape, you can justify just about anything. The problem here is that is EXACTLY what the BLM is proposing right now as their new baseline. They call it Planning 2.0. One of it's major tenets is to provide the Bureau with a platform for increasing LANDSCAPE-LEVEL planning. With only the DRECP to hold out as an example, we have every right to worry that Planning 2.0 will turn out to be another cap and trade 'wolf' in sheep's clothing.


In the 2.0 process, local people have every right to be concerned that local concerns will be lost in an increasingly REGIONAL process. For us, the Consulting Parties to this PA, the concern is even more acute. Our concerns are not just local, THEY ARE SITE SPECIFIC. 2.0 offers no hope for site specific management of properties that fail the NRHP eligibility test. Protection under an expanded version of our PA is their only realistic hope.


What does this all mean? In being a Consulting Party to this PA, I feel like I am becoming an accomplice in the eventual demise of a large part of our shared cultural heritage. It is one thing to rail against a proposal for its perceived dangers as a outsider, a concerned citizen. It is quite another to have your name attached to the document which has the potential to move a huge subterfuge forward.


So what do I want?


In the coming weeks I will be looking for the BLM to provide WRITTEN ASSURANCES by way of specific management policies...THAT WILL NOT BE AFFECTED BY PLANNING 2.0...that will ensure that the vast majority of cultural resources, whose fates have been made clearer by the initial survey, will be given adequate protection despite lacking formal NRHP designation.



Based on the 40 year track record of the Bureau's field offices, I have no faith in the sufficiency of FLPMA and ARPA to provide this protection absent some clear, written management directives from the Desert District.


I don't think I need to challenge the survey and evaluation processes as well, as I believe the tribal spokesmen and spokeswomen who are involved in this process will provide you with direct challenges on those grounds. However, in the absence of having their objections on the record at this time, I would like this letter to serve as an objection on those grounds as well, only to preserve the right of all Consulting Parties to continue discussion on this very important matter.


As I said at the outset, I am suspending my participation in the process for the time being. For as much as I would like to discuss these matters at the first opportunity, I realize that the upcoming meeting next Wednesday is not the appropriate time or place for these discussions to occur. Under the limited timeframe budgeted for working on the HPMP, it is not my intention to subvert your processes. My letter is intended only to put you on legal notice of my specific objections to the survey, the report, and to those conclusions only made clear for the first time by the report.


To put this bluntly, if the BLM has the potential to subvert meaningful participation in the management of cultural resources by effectively putting 90% of them 'off limits' to discussion thru a single-sided determination of ineligibility, then I want no part of it.



IN MY OPINION, the PA NEEDS TO BE EXPANDED to allow for Consulting Party discussions regarding management of ALL sites, not just NRHP eligible ones. I apologize if I misunderstood the objectives before. Had I realized, I would have objected sooner.



As always, I am more than happy to make myself available for discussion of these matters. I take my volunteer duties to the BLM as a member of CASSP, as a Consulting Party to this PA, and as a member of the Desert Advisory Council very seriously.


Sincerely,


Mark Algazy, Esq.

Member, California Archeological Site Steward Program

Member, Friends of Jawbone

Member, Friends of Public Lands Cabins

Member, National Public Lands News

Member, Ridgecrest Public Lands Roundtable

Member, West Mojave Route Network Project

Member, BLM Desert Advisory Council

Consulting Party, WEMO Section 106 Programmatic Agreement

 

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The BLM responded to my official protest letter as required under the terms of the PA. I was under impressed. I sent this in yesterday.

 

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Rebuttal to 106 Protest Summary



I appreciate the ability to continue to comment on the Cultural PA that I helped to develop with all of you. I also appreciate the manner in which the BLM is currently handling my protest to the current efforts to implement the PA through the HPMP process. For the most part, I agree with the assessment of the protest the BLM has provided you...with one important exception. I am NOT asking the BLM to consider developing HPMPs for properties that are found to be ineligible for protection under NRHP.

1. I object to the methodology used to make the determinations in the initial sampling survey, and am TERRIFIED at the prospect of that methodology being used any further without consultation, examination and modification from the Consulting Parties to this PA.
   
   
2. I object to the now-apparent likelihood that 90 percent of sites that will be identified under full implementation of this PA will simply fall into the abyss of the woefully-inadequate current management programs. I am one hundred percent convinced that had the Consulting Parties realized that such a high percentage of assets would default to this shameful place, further effort would have been put into the PA.
   

To say that the Bureau's management plans for cultural sites determined to be ineligible for Section 106 listing are woefully inadequate is an understatement; they are non-existent. The vague references to FLPMA and ARPA are non-starters: they have provided NO PROTECTION for these assets over the course of FLPMA's existence, and there is nothing in the current SEIS for WEMO to suggest that anything will change.



Since the WEMO Cultural PA is the ONLY tangible document the BLM can point to for management of cultural assets, IT BECOMES THE DE FACTO MANAGEMENT PLAN FOR ALL CULTURAL RESOURCES. Therefore it seems absolutely necessary to me that it be a COMPREHENSIVE plan that identifies SPECIFIC ways in which non-eligible assets and sites will be considered, if not afforded full protection.



The BLM and its contractors were all very anxious to prove the statistical accuracy of the model they developed, as well as the random sampling survey that was subsequently based on it. Therefore we have no basis on which to rationally believe that subsequent surveys will yield significantly different results. What this means is that of the 90 percent of 500,000 cultural sites generated by the Bureau's modeling efforts, 450,000 of them will likely be determined ineligible for listing in the NRHP. To me, both that number and that percentage are staggering. I'm not saying that these determinations don't need to be made. And I am not saying that the standards for NRHP listing need to be diluted.



But when the ONLY OTHER OPTION in this thumbs-up, thumbs-down dichotomy is to let 450,000 sites slip back into the black hole of management that is BLM's stock in trade for cultural assets, I am saying it's time to take a hard second look at this PA. I don't think any of us who signed up for this pictured 90% of a vastly expanded database of resources simply slipping thru the cracks back into the dark ages of land management.



The 106 process has been the ONLY IDENTIFIABLE EFFORT the Bureau has made in the last 17 Years to identify management responsibilities for cultural resources in the WEMO.To be more accurate, there has not been any cohesive management strategy for cultural resources since the inception of the CDCA. The Bureau's strategy for the last 37 years has been pretty much focused exclusively on identifying resources eligible for inclusion in NRHP.



Assuming for a moment that this approach could be considered tenable when the Bureau's catalogue consisted of 10,000 known resources, it is simply not so when the catalog is now expected to reach 500,000 by the Bureau's own estimate.



While principles of triage still direct that with finite resources that the highest value sites be identified and steps be taken to protect them first, the system used to make those determinations is also fatally flawed.

First, there are glaring holes in the methodology used for the initial sampling survey that undermine the Bureau's qualitative analysis. I identified those in my initial protest, so I will not repeat them here.



Secondly, and more importantly, having made the determination that roughly ninety percent of the sites identified are ineligible for NRHP protection, IT IS NOT ACCEPTABLE to simply lump 450,000 cultural sites into the same pathetic strategy of non-management that defined the last four decades of oversight (and I use that term liberally)



Put another way, it's one thing to mis-manage something you don't know is there. It's another thing to expect to be able to go forward with the same plans (or lack thereof) once you know they are there.



This PA represents the sum total of BLM's anticipated management strategy for the next twenty years. There is no basis on which to assume that anything else will happen unless we, the parties with the “demonstrated interest” who helped develop this PA, insist that the Bureau RIGHT HERE, RIGHT now, develop a comprehensive management program for ALL cultural resources.



In conclusion, I would like to say that in my opinion the BLM is asking you to focus your attention only on what is on the table. I am asking you to focus on what is missing, because what is missing is SO much larger, SO significant, consists of sites only destined to be POORLY EVALUATED given the bureau's current methodology, that it puts to shame any notion of providing meaningful protection for the overwhelming majority of our desert's cultural treasures.



If the Bureau insists that the PA cannot be modified to achieve this objective, and that they are not prepared to develop a parallel process for managing the ineligible sites, I would urge you to consider also revoking your participation in this process. I for one would have no reservations under that eventuality about removing my name from a process which has now been revealed to make a mockery of cultural resource protection.





Best



Mark Algazy, Esq.

 

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While I was in PA last Thursday attending the Coal Miner Cruiser Classic, the BLM sent me an e-mail requesting a private meeting.