The Protection of Cultural Resources on Public Lands: Federal Statutes and Regulations

The federal public lands—national forests, parks, and rangelands—are widely known for their vast natural resources: timber; range; minerals; watersheds; wildlife; and sweeping vistas of incredible beauty and diversity. No less notable are the cultural resources found on the public lands. Some of the earliest withdrawals of public lands from homesteading or other disposition occurred because of their cultural and historic importance.1 Preserving and allowing access to resources with cultural significance are critical to sustaining diverse, viable communities as well as our national, collective heritage. For American Indian people in particular, certain places, physical features, and objects on the public lands hold deep cultural and spiritual significance. Without ongoing relationships with a defined physical “place,” the integrity of many contemporary American Indian societies could be jeopardized.2 This Article provides an assessment of federal law governing the management and preservation of cultural resources on public lands, focusing on resources of interest to American Indians. It reviews federal statutes and regulations governing cultural and historic resource protection, as well as laws applicable to specific categories of federal public lands. In addition, it assesses the National Environmental Policy Act (NEPA),3 an integral part of the decisionmaking process for most activities on public lands, and its use as a tool for protecting the resources and accommodating their use. The principal cultural resource statutes are the National Historic Preservation Act (NHPA)4; the Archaeological Resources Protection Act (ARPA)5; and the Native American Graves Protection and Repatriation Act (NAGPRA).6 These laws provide procedural mechanisms through which interested parties can participate in decisionmaking processes, as well as substantive protection for cultural and historic resources. The NHPA requires federal agencies to engage in consultation, often accomplished in conjunction with the NEPA process, to take into account the effect of federal undertakings on historic properties and traditional cultural resources. ARPA prohibits the excavation or removal of archaeological resources from federal lands without a permit. The most recent addition to this trilogy of cultural resource laws, NAGPRA, provides for the repatriation of American Indian remains and cultural items imbedded in federal and tribal lands. These statutes and their implementing regulations provide significant roles for tribal governments, in recognition of their inherent sovereign interests in tribal historic, cultural, and religious resources.7 The public lands statutes, the Federal Land Policy Management Act (FLPMA)8; the National Forest Management Act (NFMA)9; and the National Park Service Organic Act,10 play an affirmative role in cultural resource management and preservation by recognizing cultural values in land management plans and by preventing the degradation of the resources. TheNFMAandFLPMAdirect that multiple uses be allowed on the public lands in a manner that can be sustained over time. The National Park Service Organic Act provides for conservation and public enjoyment of National Park System lands and resources. Together with the cultural resource statutes and NEPA, these laws encourage, and in some cases may even mandate, federal accommodation of cultural values of American Indian tribes. No discussion of cultural resource management on the federal public lands would be complete without considering the constitutional implications of decisions affecting cultural resources, many of which hold spiritual or religious significance. This Article provides a brief overview of the First Amendment’s religion clauses, and concludes that, although the Free Exercise Clause has not afforded concrete protection for cultural and religious resources on public lands, neither has the Establishment Clause prevented land management agencies from accommodating interests in such resources.11 Accommodation of American Indian interests is consistent with the unique federal relationship with tribes, as well as the policies expressed in the American Indian Religious Freedom Act (AIRFA),12 and the Executive Order on Sacred Sites, which directs agencies to accommodate the use of sacred sites and to avoid actions that adversely affect their physical integrity.13 Moreover, the Religious Freedom Restoration Act (RFRA),14 may prohibit federal land managers from taking action that substantially burdens religious interests absent compelling reasons

MUDSLINGING ON THE MISSOURI: CAN ENDANGERED SPECIES SURVIVE THE CLEAN WATER ACT?

This Article analyzes the perceived conflict between the CWA\u27s demand for clean water, which in some, but not all, cases means clear water, and the no jeopardy requirement of the Endangered Species Act (ESA), and determines that the two statutes are not in conflict at all. Under the CWA, water quality managers are tasked with creating standards that promote a river\u27s uses. Native species habitat is one use that must be protected under the CWA, just as it must be protected under the ESA. Water quality standards should promote that use by recognizing that the Missouri River, and others like it, historically carried far greater quantities of sediments than are present today, and that the species which have evolved in a sediment-rich environment require sediment delivery to continue at the proper time, place, and manner. BOs issued under the ESA should, therefore, guide federal and state water quality managers in setting and approving water quality standards

Wilderness Imperatives and Untrammeled Nature

Wilderness is often considered the epitome of naturalness – what nature ought to be. Indeed, in many ways, society, through its environmental laws, has prioritized the protection of wilderness over other areas of nature and other aspects of naturalness. We give our wilderness areas iconic names, like Delirium, Desolation, Devil’s Backbone, River of No Return, and Superstition, and we idealize themand treat them as something utterly unique and apart from our technology-ridden daily lives. The nation’s preeminent wilderness statute, the Wilderness Act of 1964, is credited with significant preservation achievements. Over the years, the Act has remained remarkably robust, with few legislative revisions. The Act is so well loved that, as Professor Rodgers notes, it is “virtually repeal-proof.” During almost every congressional session since 1964, new wilderness areas have been added to the system or existing areas have been expanded. But are wilderness areas really natural? And if they are something other than natural, does that diminish their value to society and to environmental law? As we grapple with these questions, a related issue comes to mind. By prioritizing “fenced-off” remote wilderness areas through stringent legal restrictions, are we unintentionally diminishing the idea of nature and short-changing a more holistic relationship between humans and nature, wherever we might encounter it? Historian William Cronon argues that the “mythicmeanings attached to wilderness” – and the perception that humans are apart from nature – “prevent realization of [other] important environmental values.” If this is true, must the “wooly-headed, tree-hugging worldview . . . which has long idealized wilderness (as true nature) while simultaneously designating humanity as the scourge of the planet, ‘die so that something new can live,’” as Ted Nordhaus and Michael Shellenberger posited in The Death of Environmentalism This chapter addresses these questions by tracing the origins and purposes of the Wilderness Act and by examining the Act’s role within the constellation of federal environmental laws and its continuing impact on society and on individual well-being. It argues that, contrary to the views of Cronon, Nordhaus, and Shellenberger, idealizing wilderness does not diminish our relationship with nature; rather, it enriches it just as much if not more than it did in 1964. Admittedly, much has changed since 1964. We now have a more sophisticated scientific understanding of complex, dynamic ecological processes, which arguably undercuts the Act’s overarching equilibrium-dominated theme. We also face unparalleled pressures wrought by climate change, which arguably calls for adaptive management interventions to maintain or restore disrupted ecological communities in hopes of keeping protected areas as natural as possible. But instead of preventing the realization of other important values related to nature, many of which are explored in this book, the wilderness construct provides a symbolic, spiritual, and ecological touchstone for some of our deepest feelings about natural areas – solitude, peace, quiet, and freedom from mechanized and motorized technologies that otherwise surround us and saturate our society and our environment

The Protection of Cultural Resources on Public Lands: Federal Statutes and Regulations

The federal public lands—national forests, parks, and rangelands—are widely known for their vast natural resources: timber; range; minerals; watersheds; wildlife; and sweeping vistas of incredible beauty and diversity. No less notable are the cultural resources found on the public lands. Some of the earliest withdrawals of public lands from homesteading or other disposition occurred because of their cultural and historic importance.1 Preserving and allowing access to resources with cultural significance are critical to sustaining diverse, viable communities as well as our national, collective heritage. For American Indian people in particular, certain places, physical features, and objects on the public lands hold deep cultural and spiritual significance. Without ongoing relationships with a defined physical “place,” the integrity of many contemporary American Indian societies could be jeopardized.2 This Article provides an assessment of federal law governing the management and preservation of cultural resources on public lands, focusing on resources of interest to American Indians. It reviews federal statutes and regulations governing cultural and historic resource protection, as well as laws applicable to specific categories of federal public lands. In addition, it assesses the National Environmental Policy Act (NEPA),3 an integral part of the decisionmaking process for most activities on public lands, and its use as a tool for protecting the resources and accommodating their use. The principal cultural resource statutes are the National Historic Preservation Act (NHPA)4; the Archaeological Resources Protection Act (ARPA)5; and the Native American Graves Protection and Repatriation Act (NAGPRA).6 These laws provide procedural mechanisms through which interested parties can participate in decisionmaking processes, as well as substantive protection for cultural and historic resources. The NHPA requires federal agencies to engage in consultation, often accomplished in conjunction with the NEPA process, to take into account the effect of federal undertakings on historic properties and traditional cultural resources. ARPA prohibits the excavation or removal of archaeological resources from federal lands without a permit. The most recent addition to this trilogy of cultural resource laws, NAGPRA, provides for the repatriation of American Indian remains and cultural items imbedded in federal and tribal lands. These statutes and their implementing regulations provide significant roles for tribal governments, in recognition of their inherent sovereign interests in tribal historic, cultural, and religious resources.7 The public lands statutes, the Federal Land Policy Management Act (FLPMA)8; the National Forest Management Act (NFMA)9; and the National Park Service Organic Act,10 play an affirmative role in cultural resource management and preservation by recognizing cultural values in land management plans and by preventing the degradation of the resources. TheNFMAandFLPMAdirect that multiple uses be allowed on the public lands in a manner that can be sustained over time. The National Park Service Organic Act provides for conservation and public enjoyment of National Park System lands and resources. Together with the cultural resource statutes and NEPA, these laws encourage, and in some cases may even mandate, federal accommodation of cultural values of American Indian tribes. No discussion of cultural resource management on the federal public lands would be complete without considering the constitutional implications of decisions affecting cultural resources, many of which hold spiritual or religious significance. This Article provides a brief overview of the First Amendment’s religion clauses, and concludes that, although the Free Exercise Clause has not afforded concrete protection for cultural and religious resources on public lands, neither has the Establishment Clause prevented land management agencies from accommodating interests in such resources.11 Accommodation of American Indian interests is consistent with the unique federal relationship with tribes, as well as the policies expressed in the American Indian Religious Freedom Act (AIRFA),12 and the Executive Order on Sacred Sites, which directs agencies to accommodate the use of sacred sites and to avoid actions that adversely affect their physical integrity.13 Moreover, the Religious Freedom Restoration Act (RFRA),14 may prohibit federal land managers from taking action that substantially burdens religious interests absent compelling reasons

TREADING WATER WHILE CONGRESS IGNORES THE NATION’S ENVIRONMENT

During the late 1960s, the nation’s attention was riveted on graphic images of contaminated resources, such as smoldering rivers and oil-soaked seagulls, as well as Rachel Carson’s haunting prose about the “strange blight” of chemical pesticides afflicting land, water, and wildlife. Policymakers recognized the need for strong legal protections for public health and the environment, and Congress responded with sweeping legislation governing the pollution of water, air, and soil, and the demise of threatened and endangered species. The Clean Water Act of 1972 (CWA), which regulates discharges of pollutants into waters of the United States, is one of the most significant statutes among this body of legislation. Under the CWA and related federal environmental legislation, the nation has made tremendous strides in improving our water quality along with the waste management practices that affect water, air, and soil. However, since the basic statutory framework was adopted in the 1970s, there have been many ecological, technological, social, and political changes in the United States, but Congress has adopted very few significant amendments, causing some to question whether federal environmental laws have passed their prime. This Article begins in the 1970s, when the nation’s environmental framework was expressed in statutes governing a wide variety of topics, including water, air, environmental analysis, and endangered species. Part I explores the intricate interplay between the agencies charged with implementing these statutes, the federal courts, and Congress, and demonstrates how Congress routinely amended the statutes as needed to ensure that the agencies and the courts were staying true to its purposes and implementation strategies. Part II moves forward in time and looks at the dramatically different legislative landscape since 1990. Very little by way of significant environmental legislation has been enacted in the past two decades. This is so despite the fact that the Supreme Court has reviewed a surprising number of Clean Water Act cases during this era, including cases challenging the jurisdictional scope of the Act, EPA’s enforcement powers,and the division of power between the EPA and the Corps of Engineers. Meanwhile, significant changes in the physical environment and in our understanding of the environment have occurred, without any meaningful response from Congress. Part III explores a variety of reasons for congressional failures since 1990. Congress has produced relatively little by way of comprehensive legislation across the board—not just on environmental issues. The lack of controls on campaign financing and the corruptive influence of money from special interest groups is one reason. A dramatic increase in the number of filibusters is another. However, there have been moments of “civic republicanism” where Congress has managed to pass broad-reaching statutes to address health care, national security, banking, and several other topics. Part III explains how environmental law is different than other types of legislation, and why gridlock is so much more palpable in the environmental arena. Despite high profile catastrophes such as the BP Deepwater Horizon blowout and the failure of the levee system in New Orleans in the wake of Hurricane Katrina, Congress has done virtually nothing on the environmental front. The chronic problems posed by hyper-partisanship and campaign funding are present here, too, but there is something more afoot. Heated rhetoric, conveyed in inflammatory sound-bites—“job killing” regulatory measures and private property rights “abuse” among them—is even more evident when it comes to environmental law than in other areas. Equally troubling is congressional mistrust—even disdain—for science. Part IV considers the implications of Congress’s failure to act, and explores the ways in which the federal agencies either have stepped into the vacuum or could fill the vacuum left by congressional inaction. It posits that environmental gridlock may not be such a bad thing after all. True, from the standpoint of democratic legitimacy, Congress ought to be doing its job. But from the standpoint of environmental protection, perhaps Congress should leave well enough alone (or at least we will be no worse off if it does remain silent). Neither congressional members nor their staffs have sufficient time, inclination, or expertise to craft adequate responses to modern environmental problems, many of which are far more complex than the issues faced in the 1970s. When it comes to water quality, at least, the low-hanging fruit has already been picked and the remaining issues, such as nonpoint source pollution and the protection of isolated wetlands and ephemeral streams, call for solutions that are both more nuanced and more politically charged than the basic mandates issued in the 1970s were. Congress has always been better able to deal with “macro”-level issues and pose broad-brush policy-oriented solutions, but complex problems tend to be over-simplified, for example, one is either “for or against” wetlands protection or “for or against” hamstringing the economy by regulating industrial discharges. Moreover, given that the environmental laws of the 1970s, with their lofty objectives, are the high water mark, and also that the value of safe, clean water for drinking, fisheries, and recreation remains intact, it is possible we have nowhere to go but down if Congress were to start tinkering. The Article concludes in Part V with an assessment of several “portaging strategies” that offer an opportunity to work around the congressional logjam and move the environmental ball forward through non-legislative means. Although comprehensive legislative reform may be the “first best” option for addressing wicked problems like climate change and even nonpoint source pollution, empowering agencies to engage in more progressive environmental action presents a viable “second best” alternative. This alternative turns in part on empowering citizens to motivate agency action through petitions for rulemaking and citizens’ suits, and in part on clearing away impediments to agency action while minimizing agency capture by anti-regulatory interests. A coordinated strategy of regulation, Executive Orders, and enforcement might take us beyond merely “treading water” while Congress ignores the environment

Wilderness Management in National Parks and Wildlife Refuges

This Article provides a wilderness scorecard of sorts for the two dominant use land management agencies-the National Park Service (NPS) and the United States Fish and Wildlife Service (FWS). Given that both agencies operate under a similar conservation oriented mandate, one night assume that the imposition of a wilderness mandate would be closely aligned with their organic missions. However, NPS and FWS have both, at times, been surprisingly hostile toward wilderness within their systems. In NPS\u27s case, this is likely because of a concern that wilderness might disrupt visitor use and rein in its management discretion over park activities and resources. It may also be due to the perception that NPS does not need wilderness because of its long history and reputation as the preeminent land steward among the federal agencies. For FWS, wilderness may be seen as interfering with its discretion and ability to manage wildlife populations and to restore habitat through deliberate intervention, both of which are favored by the state Fish and game agencies that exert pressure on FWS. While both agencies have issued policies supportive of wilderness preservation, only FWS has put its policies-at least some of them-in its regulations, while NPS continues to rely on nonbinding manuals and policies. Neither agency has been especially committed to wilderness planning, although FWS\u27s planning processes may have a slight edge. Both agencies could improve their wilderness strategies and practices by engaging in rule making to solidify their commitment to preserving wilderness characteristics. For its part, the Department of Interior could take steps to coordinate its wilderness strategies and its oversight over all of the wilderness managing agencies

Mitigating Malheur\u27s Misfortune: The Public Interest in the Public\u27s Public Lands

The Article begins its inquiry with an in-depth look at the forty-one-day long standoff between armed militants and law enforcement officials at Malheur, which means misfortune in French. The occupation of the Refuge ended with one death and the prosecution of over two dozen individuals for trespass, destruction of government property, conspiracy, and related charges. It all began when the Hammonds, who held grazing permits on Bureau of Land Management ( BLM ) land adjacent to the Refuge, were prosecuted for starting fires on federal land.1 The Hammonds\u27 conviction for the incident might have been the end of the story, but another notorious ranching family from Nevada, the Bundys, stepped in with their own deep-seated call-to-arms against the federal government. The Bundys\u27 message resonated with other Sagebrush Rebels and members of the Patriot Movement. The result: one of the most pivotal events in the ongoing struggle over access and control of U.S. federal public lands. Part I of this Article addresses the historic and cultural context of private interests in federal public lands and resources, using Malheur, the Badger Two- Medicine, and the Sugar Pine Mine as examples. Part II illustrates the federal government\u27s constitutional authority for management of public lands and resources and for oversight of private claims to them. Part III discusses the federal statutes and regulations that govern private claims to public rangeland and minerals and reveals the deficiencies of such claims. Part IV goes beyond the letter of the law to tease out the socio-economic subtext underlying the tenaciousness and fervor of private claims. The heart of the Article is found in Part V, which examines the public\u27s interest in federal public lands and the government\u27s responsibility to protect the public\u27s interest. Drawing lessons from over a century of both public lands law and water law, Part V reframes the conversation in a way that weaves the public interest into the myriad assertions of private rights. It considers the intersection of the public interest and the Public Trust Doctrine ( PTD ), which is an ancient common law doctrine that safeguards public access to certain public lands and resources. The analysis shows that, while the doctrines are distinct, they gain strength, depth, and breadth from each other. The PTD is valuable tool for informing the public interest standard and for conceptualizing, implementing, and constraining management discretion. The public interest standard, as informed by the PTD, becomes a robust means of managing private rights and conserving public lands and resources. Finally, the Article concludes with an optimistic, but realistic, message of convergence, where public interest factors coupled with PTD duties combine to direct decision makers, the public, and the judiciary to demand sustainable uses of federal public lands and resources through the issuance, renewal, and termination of permits, licenses, and leases

Mudslinging on the Missouri: Can Endangered Species Survive the Clean Water Act?

Water quality regulations typically focus on chemical and bacterial pollutants, such as pesticides, detergents, industrial wastes, and sewage. Far less attention has been paid to the flow and function of sediments, known to most of us as mud. Sediments, however, are just as important to the ecological integrity of many rivers as the quality and quantity of the water itself. On big inland rivers like the Missouri, Mississippi, and Colorado Rivers, sediments are essential to the formation of sandbars, islands, oxbows, and floodplains, which in turn provide habitat for native fish, wildlife, and invertebrate species. Also, sediments carried by the Missouri River downstream through the Mississippi River play a role in creating and maintaining the coastal wetlands of the Mississippi Delta. But sediment is also a pollutant under the Clean Water Act (CWA).\u27 Sediments can smother and destroy spawning and foraging areas. They can carry excess nutrients from agricultural and urban runoff, causing algae blooms, hypoxia, and other adverse conditions. Conflicts over the dual nature of sediment came to a head in the Missouri River basin in 2008 when the State of Missouri refused to issue a CWA 401 Certification for the Army Corps of Engineers\u27 habitat restoration projects.2 The state ordered the Corps to stop discharging sediments into the Missouri River, stating that such discharges would violate the state\u27s water quality standards.\u27 Caught between a rock-the State of Missouri-and a hard place-a biological opinion (BO) compelling habitat restoration to prevent jeopardy to endangered species-the Corps turned to the National Academy of Sciences for advice. This Article analyzes the perceived conflict between the CWA\u27s demand for clean water, which in some, but not all, cases means clear water, and the no jeopardy requirement of the Endangered Species Act (ESA),\u27 and determines that the two statutes are not in conflict at all. Under the CWA, water quality managers are tasked with creating standards that promote a river\u27s uses. 4 Native species habitat is one use that must be protected under the CWA, just as it must be protected under the ESA.16 Water quality standards should promote that use by recognizing that the Missouri River, and others like it, historically carried far greater quantities of sediments than are present today, and that the species which have evolved in a sediment-rich environment require sediment delivery to continue at the proper time, place, and manner. BOs issued under the ESA should, therefore, guide federal and state water quality managers in setting and approving water quality standards