Geothermal Projects and
Indian Tribes: Dealing with
Cultural Resources Issues
Michael P. O’Connell
Stoel Rives LLP
moconnell@stoel.com
206-386-7692
OREGON
WASHINGTON
CALIFORNIA
UTAH
IDAHO
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
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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
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 Register
Eligibility (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 onreservation 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
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
 PA
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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
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federal and Indian reservation lands,
NAGPRA and ARPA also apply
Resources
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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