Table Of ContentConsultation and Cultural Heritage
Let Us Reason togetHeR
This book is dedicated to my mother and sister,
who did not take “no” for an answer, and to Shorty, the best
negotiator I know as he always gets what he wants.
Claudia Nissley
To the memory of Robert R. Garvey, Jr., who taught me to consult and
provided object lessons in how it’s done.
Thomas F. King
Consultation and
Cultural Heritage
Let Us Reason togetHeR
Claudia nissley
thomas F. King
Walnut Creek, California
LEFT COAST PRESS, INC.
1630 North Main Street, #400
Walnut Creek, CA 94596
http://www.LCoastPress.com
Copyright © 2014 by Left Coast Press, Inc.
All rights reserved. No part of this publication may be reproduced,
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without the prior permission of the publisher.
ISBN 978-1-61132-398-6 hardcover
ISBN 978-1-61132-399-3 paperback
ISBN 978-1-61132-778-6 institutional eBook
ISBN 978-1-61132-744-1 consumer eBook
Library of Congress Cataloging-in-Publication Data
Nissley, Claudia.
Consultation and cultural heritage : let us reason together / Claudia Nissley, Thom-
as F. King.
pages cm
Includes bibliographical references and index.
ISBN 978-1-61132-398-6 (hardback : alk. paper) -- ISBN 978-1-61132-399-3 (pbk.
: alk. paper) -- ISBN 978-1-61132-778-6 (institutional ebook) -- ISBN 978-1-61132-
744-1 (consumer ebook)
1. Cultural property--Conservation and restoration. 2. Environmental protection-
-Management. 3. Interagency coordination. 4. Intergovernmental cooperation. I.
King, Thomas F. II. Title.
CC35.N57 2014
363.6’9--dc23
2013041553
Printed in the United States of America
The paper used in this publication meets the minimum requirements of Amer-
ican National Standard for Information Sciences—Permanence of Paper for Print-
ed Library Materials, ANSI/NISO Z39.48–1992.
contents
Preface • 7
chapter 1 • Introduction • 9
Chapter 2 • What is Consultation and What is it For? • 20
Chapter 3 • Seeking • 28
Chapter 4 • Discussing • 58
Chapter 5 • Considering • 79
Chapter 6 • Seeking Agreement • 96
Chapter 7 • Reasoning Together—or Not • 120
Appendix 1 • Glossary • 135
Appendix 2 • Two Invitations to Consult • 142
Appendix 3 • The Colorado River Fish Management
Memorandum of Agreement • 147
Notes • 157
References • 160
Index • 166
About the Authors • 175
Together
Account: s4672406
preface
The authors of this book have spent roughly (sometimes very roughly) sev-
enty collective years working with the U.S. historic preservation and envi-
ronmental laws that require “consultation.” Over the decades, we’ve gained
some notion of what consultation ought to entail, and what often happens to
it instead. We’ve learned about what works and what doesn’t.
Until recently, we weren’t sure that a book about consultation was need-
ed. Quite a few books, journal articles and government guidelines that touch
on it, like education, psychology, and law. There are books collaborative plan-
ning, dispute resolution, mediation, and facilitation. A sampling of these sources
is provided in our bibliography. In the 1980s and 90s we took part in enough
seemingly satisfactory—or at least not much contested—consultations to have
been lulled into thinking that the principles of consultation were pretty widely
understood and that its practice was improving.
In the twenty-first century, though, we’ve been startled at what some
agencies of government have come to think of as consultation; it’s as though
the concept has become foreign to the thinking of those charged with do-
ing it. Often, consultation seems to be regarded as merely an administrative
task, to be endured and checked off a list of “things to do” before taking an
action already decided upon. This is a waste of everyone’s time and money,
and inconsistent with what we think, and in some cases know, to have been
the intent of the laws.
So for better or worse—since there seems to be nothing else we can do
about it—we decided that a book would be in order, and here it is. Recogniz-
ing that it will be used by busy people in working environments, we’ve tried to
make it something other than an academic tome; this was easy, since neither
of us is an academic. We’ve tried to keep it short and straightforward. Those
who want to explore the subject in more detail, or along more theoretical
lines, can find avenues to pursue in the references.
7
8 | preface
acknowledgements
Although no one but us is responsible for our errors and omissions, people
have advised us, shared information, and commented on drafts. Kathleen
Schamel and Douglas Pulak of the U.S. Department of Veterans Affairs, Da-
vid Moore of Hardy Heck Moore in Austin, Texas, and Katy Coyle and Kate
Kuranda of R. C. Goodwin & Associates have been invaluable colleagues in
recent consultations, while Mary Orton, Glenn Knowles, and Beverly Hefer-
nan made possible the Grand Canyon fish removal consultation discussed in
Chapter 7. Kurt Dongoske, Tribal Historic Preservation Officer for the Pueb-
lo of Zuni, was a treasured colleague in that consultation, too, and advised
about the Amity Pueblo case discussed in Chapter 3. Judith Innes and Da-
vid Booher of the University of California, Berkeley and the Center for Col-
laborative Policy shared the wisdom they have gained from a generation of
practice and theorizing in collaborative reasoning-together, while Kerry Kirk
Pflugh and Suzanne Shannon of the New Jersey Department of Environmen-
tal Protection shared their comparative analysis of public participation meth-
ods—now, sadly, rather hard to find. Alex Bauer of Queens College provided
valuable insights into the Gezi Park case in Istanbul. Hugh McCann advised
about what God really meant in Isaiah 1:18. Charles Eccleston, Ray Clark,
and Owen Schmidt have helped us understand how consultation happens
(or doesn’t) under the National Environmental Policy Act. Kurt Russo, Nora
McDowell, Reba Fuller, Robert Van Zile, Linda Otero and many others have
shared American Indian tribal perspectives on consultation, and Elizabeth
Bradshaw of Rio Tinto has helped us visualize the importance of consulta-
tion from the perspective of international extractive industries. Colleagues at
the U.S. Advisory Council on Historic Preservation, Department of Veterans
Affairs, General Services Administration, and Departments of Agriculture,
Defense and Interior as well as in many State Historic Preservation Offices
have contributed to our understanding of government perspectives. Kelley
Hays-Gilpin of Northern Arizona University helped us locate the cover im-
age (of people with hands waving in the air) from Baja California’s Cueva
Pintada; Bob Mark and Evelyn Billo of Rupestrian Cyber Services provided
it. And of course, our greatest thanks go to Mitch Allen and his colleagues at
Left Coast Press—Jennifer Collier, Katie Peña, Louise Bell, Lisa Devenish, and
Sally Gregg, for making this book possible.
chapter 1
Introduction
Come, let us reason together.— isaiah 1:18
Why this Book?
“Consultation” is the legally mandated duty of many organizations that build
things and manage land in the United States and other countries (c.f. Nissley
2011). Environmental and historic preservation laws, among others, require
it—sometimes with scientists and other experts, sometimes with specified
governmental authorities, sometimes with indigenous groups like American
Indian tribes, sometimes with local communities, occasionally with the gen-
eral public. Executive orders and regulations add specificity to the require-
ments.
What does this mean? What is “consultation” supposed to accomplish,
and how is it supposed to be done? The laws and regulations are mostly silent
about such details.
the Word
We consult a dictionary to find out what a word means. We consult a physi-
cian to find out what ails us. We consult a lawyer to file bankruptcy. This kind
of one-way consultation—just seeking and getting advice from a selected
consultant—cannot be what the various legal authorities mean by consulta-
tion. Consider some examples:
U.S. National Historic Preservation Act, Section 110(a)(2)
(16 U.S.C. § 470h-2(a-2))
Each Federal agency shall establish…a preservation program…[which]…
shall ensure…that the agency’s preservation-related activities are carried
9
