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Section 106 goes to court? What do the recent changes to NEPA and NHPA mean for CRM? - Ep 307
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The crew discusses the recent changes to NEPA and NHPA and how these job creation programs for lawyers will affect CRM… or not.
Transcripts
- For rough transcripts of this episode go to https://www.archpodnet.com/crmarchpodcast/307
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Transcript
Introduction to Cultural Resources Management
00:00:01
Speaker
Welcome the archaeology podcast.
00:00:07
Speaker
serum archeology podcast it's the show where we pull back the veil of cultural resources management archeology and discuss the issues that everyone is concerned about welcome to the
00:00:23
Speaker
Hello and welcome to the CRM Archaeology Podcast, Episode 307 for March of 2025.
Legal Challenges of Section 106
00:00:32
Speaker
I'm your host, Heather McDaniel-McDevitt, and on today's podcast, we are going to Talk about Section 106 goes to court. I don't think anyone's going to be surprised that we're talking about that today.
00:00:46
Speaker
And oh boy, you know, i think there's so much since we came up with this or, and this is doug Doug's i idea on this one. And this is kind of a carryover from our last episode when we had Spencer Pelton on. We're talking about the executive orders.
Meet the Guests
00:01:01
Speaker
But before we get into that, first, I want to welcome Andrew to the show from Southern California. And I am so happy to be here, Heather. And Bill in Northern California. Good morning.
00:01:15
Speaker
And Doug in Scotland. See, with Andrew's intro, I now felt like so much pressure to say something really amazing. Yeah. failed like Yeah. andrew's came yeah i mean i actually think they yeah iikes Yeah. and And then me, I'm actually in Southern Florida for work. the Oh, do ecap from the rain. I see. Huh? Or is it raining there I'm very close to the keys and wow.
00:01:46
Speaker
So I'm representing the East coast. but't feel like great It's like 80 degrees there right now, isn't it? It's actually nice. Yesterday it was like in the low 70s. Yeah, it was humidity. I'm not quite used to it, but I'm not. I know i could be in Chicago or.
00:02:04
Speaker
and And for the rest of the world viewers who are not, you our listeners who are not in the States, you know that's, that's in the, that's in the twenties, twenties and Celsius. In February. sounds really cold.
00:02:17
Speaker
she was In February too. but so so we have a lot to cover today. So I think we're going to, we're just going to go straight into it. And Doug, I'm going to, I'm going to just push it over to you.
Changes in Section 106 and NEPA
00:02:30
Speaker
Yeah. So I thought this podcast was going to go a bit differently. And actually, we're we're slightly delayed. i should say like we're recording this on February twenty third ah because it's you know ah Trump administration. like By the time you're listening to this, but we could have already been overtaken by other events.
00:02:48
Speaker
And the the topic of this was sort of overtaken. were going to look at some of the legalities of what happened if they opened up the regulations are around Section 106, which was somewhat of the thoughts that might happen a couple of weeks ago.
00:03:02
Speaker
But now two changes in the last three, four days is basically um they've come out and sort of straightened out some of the thoughts around what the National Emergency Presidential Declaration is around oil and gas and what how that's going to impact historic properties.
00:03:21
Speaker
And they've also done a sort of and you could call it I would call it an ingenious way of essentially legally being able to remove NEPA overarching regulations.
00:03:37
Speaker
ah They basically found a loophole to be able to do that in the regulations to basically get rid of them all and now set them that back down to each agency um to decide what they're going to be doing for NEPA. So those are the two developments.
00:03:51
Speaker
I think in this first segment, we're going to try to talk a bit about you what's going on and what these mean. And I'll just give a quick summary. Probably if I could sum this up in like one word, lawsuits.
00:04:05
Speaker
So that's where we're going with everything, but especially for NEPA, once they've sort of removed that top level regulations and now goes down to all the agencies, basically, unless they all keep doing exactly what they were doing, which they still might do,
00:04:19
Speaker
There's going to be discrepancies and there's going to be lawsuits about, you know, is that actually according to the law? And it's going to be sort of a huge issue. But I think we should focus on National Historic Preservation Act.
00:04:34
Speaker
And basically, there's been emergency declared. And in the regulations, um I believe it's 800... eight hundred point 12 yeah 800.12 is the procedure so that's the regulations that come under um if emergency is declared and that changes up a bit of what happens potentially around oil and gas and it's again it's going to be all over the place so to say that
00:05:10
Speaker
but Actually, we can't really say what's going to happen because but essentially, if you go and read those, if you really love government regulations and ah stuff, if if you go and read it, it basically says, if an agency has a procedure for emergency, follow that.
00:05:25
Speaker
If not, follow the agreements that are between agencies and the council. And there's like 22 of those. it actually gets more complicated because I went and looked up the BLM one, which is basically says, oh, our agreement is that we're going to have agreements with states.
00:05:44
Speaker
And so I think there's like 11 or 12 state agreements. I happened to look up the one ah for New Mexico. wonderful mentions about you know fires because it's the Southwest, stuff like that. But basically, it then points back to the top-level arrangements as well. So it's going to be all over the place.
00:06:05
Speaker
Depends who the lead agency is. Depends what agreements they have in place. It's going to be kind of a mess. I'm pretty sure... Those documents have probably got like, if I was the web stats guy looking at I kind of wonder why all of a sudden, like all these documents saw spike in traffic. Cause I'm pretty sure most everyone and CRM has suddenly started to go look and see what these regs actually said on emergencies, but it's kind of all over the place at the moment.
Executive Orders and Their Impact on NEPA
00:06:35
Speaker
It's going to be fragmented. Some of them going to sort of follow the, that The main regulations, the 812,
00:06:47
Speaker
um which again is also complicated in that if you know local governments, the responsible head agency for the 106, they can basically say no.
00:06:59
Speaker
So your SHPO, if the SHPO is the sort of the lead agency on the 106, they basically, as long as they do the objection within seven days, they can say no. And then it goes back to the normal process of 106. And yeah, it's...
00:07:14
Speaker
and yeah It's going to be all over the place, but in terms of impact, it's kind of hard to say. So one of the things is basically it cuts down the notification to like Shippos and Tipos and ah Native American tribes and Native Hawaiian groups.
00:07:35
Speaker
So basically they get like seven days to comment back on what exists there on the high level. So it really makes a really quick process there.
00:07:47
Speaker
But it's going to be confusing, and I just think there's going to be a lot lawsuits, because essentially, there's two ways to do lawsuits around regulations. One is basically process-based. So if you didn't follow the process, they can sue and block it, and now there's...
00:08:08
Speaker
20 some different processes possibly going on, maybe more, maybe 30 different processes. So if someone was supposed to do something in seven days and they it in eight days, well, they failed. Someone can sue them. Restart the clock on the process.
00:08:24
Speaker
The other aspect is, is this actually legal? But before we jump into all that stuff, I think I'll throw it over to my other host to see what your guys' thoughts are. All right. I just I just want to go really quick on this. Not really curious about what Heather has to say. So to me, I tried to understand this as best I i could. And I think the the three of you actually understand this better than me, if anything.
00:08:49
Speaker
But I think we have to remember that this executive order first is energy focused only, right? So if you're in CRM and you're working on like a new housing tract, this doesn't mean anything to you, right? This is like if you're working on an oil and gas pipeline, you know, like that kind of stuff. So first off, it's not that all of CRM has crumbled overnight, you know?
00:09:10
Speaker
And then second, what does this emergency mean? And as as you were talking about, Doug, and how it felt to me, and I know this is a gross overgeneralization, but just that it wasn't just that everyone goes home and you start drilling, but it's basically that the process is sped way up, like you were talking about the seven days or this kind of thing. So that's what I was able to learn just sort of like with my deep dive. But that, you know, that's that's the best I could deal with with ah the information that I had.
00:09:39
Speaker
There you go. Sure. So before we jump to Heather, in the wonderful confusion that everything is, weirdly some housing developments have been swept up into this, but probably again, if they go through, that'd be a lawsuit and then they'd be kicked out or it was a mistake. But basically they put out a list of quote unquote 600 projects. And I'm pretty sure it's one of those things where someone literally did a search and just put in like petroleum.
00:10:08
Speaker
Cause it's, it's like a housing us ah build on a former petrochemical site or something like that. Yeah. so So, you know, technically, like, yeah, this is going to be a project that's sped up, but it has nothing to do with oil and gas. So there's going to be a lot of confusion. I'm sure that list is going to be cut down quite a bit because,
Misconceptions About NEPA
00:10:29
Speaker
like, know, a lot of first reactions from, like, environmental groups were like, well, there's 600, but, like...
00:10:35
Speaker
A lot of these don't really make sense and probably are not part of it. It's probably more of a, you know, press release. i'm so I'm sorry, Doug, as you were talking, 600
00:10:48
Speaker
600 quote-unquote projects that are permittable that should go out. that Basically, they did this announcement about the ah energy emergency and what it's going to do.
00:10:59
Speaker
They announced it both for historic sites but also environmental ones. but And they put out a list of 660-some potential projects as they said now will be able to go ahead really quickly.
00:11:13
Speaker
But again, some of those aren't really... energy project so probably it's not going to happen they're just trying yeah the big numbers you know biggest biggest numbers ever
00:11:30
Speaker
well i i think the the one thing that i'd like to kind of just put to rest is if possible, is first of all, you know, this, this idea that, you know, NEPA is completely disappearing and it's going to be completely gutted and it doesn't exist anymore is in large part a misunderstanding of the executive order, whether you agree with it or not, let's just look the facts here.
00:11:58
Speaker
So there's the council or environmental quality, the executive order basically says that, you know, That Council on Environmental Equality, which is an agency, it's a White House and agency that coordinates like ah the federal environmental tasks.
00:12:17
Speaker
And you know it's been around for a long time. It was a establish established by NEPA back in 1969. um But what had happened is that there were these quote-unquote states regulations, binding regulations, which CEQA did not have the authority to issue these.
00:12:34
Speaker
And so this executive order pulls that back and says the CEQ, Council Environmental Quality, it's those regulations, basically how NEPA is used just from the CEQ's perspective, those have been pulled back because they didn't have That's not, was not the intent or the role of the CEQ.
00:13:00
Speaker
So that, I just kind of wanted to start there as far as, you know, what that executive order means. It's, it does not mean that NEPA does not exist anymore. And I think there's a lot of people that understand that, but I think there's enough people that don't.
00:13:15
Speaker
So I just kind of want to put everybody's mind at ease. And just like Doug was saying, now there's maybe that just not going to put your mind totally at ease, but it, it is not as bad as some people are pushing.
00:13:28
Speaker
So NEPA still exists. There are still, now it's going to be, you know, more on the states. And just like you said, Doug, it is definitely going to be all over the place. um We're not going to have the same, we're not going to have consistency. Although I will tell you from somebody who works in lots of different states, there isn't that much consistency, but Anyway, so I'll just kind of stick with that because we're getting near the end of the segment. We'll be right back with segment two.
00:13:59
Speaker
Welcome back to the CRM Archaeology Podcast, episode 307. We're talking about all the changes. sos I'm not even going to try to give you a little breakdown, but we're in segment two.
00:14:13
Speaker
And um Bill, you had a segment that was definitely too too big to tackle in end of the first segment. so yeah and Yeah, no problem. but So, you know, we were talking about how the laws are quite complicated and just...
00:14:29
Speaker
focusing on energy law is like the first step, right? And so, you know, in some ways, some of us that are more skeptical could be like, well, this is just the first step, right? But the even bigger thing that we need to think about is what happens if and folks are placed at agencies that otherwise would have administered these regulations and they're You know, like, you know, inside candidates or folks that are sympathetic to the overall ah goals of an administration. So let's just say that the administration's goals are to just not comply with any environmental laws overall.
00:15:02
Speaker
And they're starting with energy and using that as an emergency. but systematically going through every agency and replacing the existing folks with folks who are sympathetic to the cause of no more environmental laws. Like what happens then?
00:15:16
Speaker
What happens if everyone at all the agencies that it's in charge has been told not to care about environmental laws, and then they end up being the handmaidens who do that? So I have an answer for that. And that that was like my one word answer for the beginning, which is lawsuits.
00:15:31
Speaker
but So essentially, yeah basically there's going to be a lot of lawsuits about these things. One is procedural, but even even off the bat, it looks like the council has opened itself up to a lawsuit because the regulations say...
00:15:48
Speaker
An emergency can be declared, and then the agencies can come back. they have to do it within 30 days of the emergency being declared and ask for an extension.
00:16:00
Speaker
But the counselors came out right off the bat and just said this is in effect – And, you know, the extension lasts basically for as long as the quote unquote emergency lasts, which will probably be the length of Trump's term.
00:16:15
Speaker
um And then, you know, if a Democrat gets in, they'll close it down. Another Republican may last longer or not. You know, it's hard to predict the future. but For that to happen, the agencies have to have gone back to the council to ask for that.
00:16:31
Speaker
And it's not actually very clear that that's happened at all. So effectively, potentially any projects that... goes beyond those 30 days and using this emergency framework is opening itself up to being sued and losing because they didn't follow the regulations.
00:16:53
Speaker
um And there's going to be all sorts of like these little, you know, compliance issues and all that stuff. I mean, like if history
Legal Challenges and Emergency Regulations
00:17:03
Speaker
repeats itself,
00:17:05
Speaker
The Trump administration's going to lose 80% of them. so they did a whole yeah There's been a couple of studies. I'm a big stat person. It's great. like They literally looked at like all the challenges against Trump and first administration.
00:17:19
Speaker
and Most administrations, their win rate is 70%. think it's actually 68%, 69% the average. His 22%, 23% over years. um is the average and his was like twenty two twenty three percent over four years um And that's because they were not very big on procedural people.
00:17:37
Speaker
They were very much on, you know, we're going to tear down government, fire a bunch of people as they're doing now, but you have to follow those rules or you're going to get sued and then you're going to lose.
00:17:49
Speaker
And so potentially like, you know, I suspect a lot of projects will probably might run into two groups. like So people who have done Section 106 before, big contractors, you know large companies are basically just going to be like, yeah, we're going to keep doing what we're doing, which is the same thing we've always been doing because we don't want to basically get sued, which will then...
00:18:14
Speaker
potentially, you know, they could put an injunction and on on the project and make it last, you know, be like, oh, well, we're gonna put an injunction while this court case goes through. So, you know that's like two, four, six, 10, 12 years. I mean, they can last for forever.
00:18:28
Speaker
So they might just keep doing that to avoid being sued. And then you might end up with sort of I might be stereotyping some people, but some smaller sort of wildcat sort of organizations who this as advantage, but then again, they're going to get sued and potentially either shut down their oil well or their pipeline for a long time until it gets resolved or shut down the project entirely.
00:18:52
Speaker
And even like... Again, no one i don't think anyone looked through it because they're moving so fast, but these emergency regulations aren't actually that friendly buildings. I looked up New Mexico because you know home state and all that stuff.
00:19:09
Speaker
But you if it if it's occurring on BLM land, the emergency regulations there that should be the ones that are put in place basically says that um they must you must treat every site, everything that's potentially known as being eligible.
00:19:24
Speaker
So you you haven't even gone through the process of like you know determining is it eligible or not, you have to basically assume every single thing is eligible. And that could you know potentially be a lot more expensive than just sending out an archaeologist for like two days to have a look at these sites and be like, oh yeah, no, not eligible for the lists. It's going be basically lots and lots of You know, this is going to be a job creation program for lawyers, basically.
00:19:56
Speaker
That's what's going to happen. It's going to create so much work for so many courts, paralegals, lawyers. It's probably going to be a bonanza, actually. And yeah honestly, I think they've probably handed like Sierra...
00:20:07
Speaker
Yeah. Sierra club has probably just been like, this is like handing them like, ah i don't know, like Christmas came early to them or like the national council for historic reservation, know, like national trust for a historic preservation.
00:20:22
Speaker
They're just handed like so many ways that they could basically sue and hold up so many projects. Yeah. Cause they're, it's the way to do it. Well, and I also, i you know, you're talking about jobs creation. i also have the,
00:20:35
Speaker
We wonder a lot about the, you know, recommendation that things need to be expedited and stuff has to get done in X amount of days. Right. So I can also see where, you know, I can't tell the future, but I can also see where those agencies that are quite familiar with the process in the, you know,
00:20:54
Speaker
push to get things done in the expedited review window, we'll just start, you know, put more people on the project,
Impact of Changes on CRM Projects
00:21:01
Speaker
right? Like if you otherwise would have had five CRM archaeologists now magically you throw on seven because you need to get it done sooner or, um you know, bigger bonuses for getting the report done faster. I mean, it it also seems to me like that is a pathway to which rather than saving money, we'll actually end up spending more money.
00:21:20
Speaker
Yeah, it actually might. but It's hard to tell. I think it's going all over the place. It'll just depend who has the project, who's the lead agency, what's the regs, who does it. But yeah, potentially you could end up with like more higher wages on some projects because it'll be like, we need we have one week to do this and we need people and we're willing to pay whatever. And so it's probably actually going to end up costing taxpayers, which, well,
00:21:50
Speaker
I don't make enough money to have to pay that second tax in America, but it's going cost you guys probably more money, you know, like two cents or something. i live in California where it's fantasy land on taxes anyway, so don't worry. If there's a way to increase taxes, we'll either vote for it or they'll just magically find a way for it to happen.
00:22:09
Speaker
Man, I don't have any great segue out of we'll probably have had more taxes. I love it when that happens. Well, you know, and I, in the past, I worked on a project that was one of those, let's get it done super fast. It was one of those ah reinvestment act ones during the, in the wake of the 2008 recession.
00:22:29
Speaker
And I'm not joking. We had like 35,000, thirty five archaeologist on this project. I mean, there was like six crew chiefs and a couple of PhDs running these huge crews to dig all these features. There was, you know, multiple backhoes trenching this thing.
00:22:44
Speaker
And it was like a nine month project. And it was one of those, hey, hurry, let's get this thing done because the president has said X, Y, z And this agency needs to be in compliance. And they just hired an army of folks.
00:22:55
Speaker
and And it worked for for a long time. You're still doing the work, though. Yeah, no, I know. doing it You're just doing it faster. so Yeah, and you know so and that one was also one of those, like, got to get it done by X amount of days. And so the agency was like, yeah, well, you know what? We'll just get a huge army of folks to get it done.
00:23:12
Speaker
Well, I'll just say it again, that's not going to cost more. It just means that you have to find the people, which that might cost more because you have to have competitive wages to bring everybody in and So I don't know, you know, this ah concept that CRM is going away. It's not going away.
00:23:30
Speaker
And in fact, I think we there may be more and more consistent, more work and more consistent work. because people are gonna have to be on the ready.
00:23:41
Speaker
Like the idea that you can just hire as needed and cross your fingers hoping that you're gonna have the the big staff that you need in order to get something done within a period of time.
00:23:54
Speaker
that's allotted, i i you know, that's very hard to do when you're just relying on, you know, a big crew of as needed people that have other companies that are trying to hire them for the same reason.
00:24:05
Speaker
So yeah I do think it's going to change how people are hired. I don't think that we're looking at a significant reduction in the amount of archaeologists that are going to be needed.
00:24:17
Speaker
i really don't. But I mean, it's it is hard to tell. And, you know, the one thing the one thing that i did want to that I did want to just go back just a little bit on the CEQ Council of Environmental Quality.
00:24:34
Speaker
and I wanted to make sure that, you know, people understand that this isn't like they're not going to have any any kind of oversight. It just means that. but These are going to be guidelines. The guidelines are still going to be reworked.
00:24:47
Speaker
They're still going to be looked at and they're still going to exist, but they're not going to be binding. And that was part of the problem, you know, the reason for the lawsuits before this all happening happened.
00:24:59
Speaker
So anyway, I wanted to go back on that. And then I, I did want to talk just a little bit on, since we're talking about, you know, employment and, you know, how many jobs are going to be out there. I did want to just touch on that.
00:25:11
Speaker
So just, um Doug, do you have something? This is your subject. So do you have something you want to talk? Yeah, well, was going to say, i was going to bring in, it may not change anything as well. So like the Permian Basin, you know, Texas, New Mexico, huge gas oil area for the country.
00:25:30
Speaker
we actually don't do archaeology. or survey there anymore. So basically, they got an agreement. There were so many oil wells put in there and so much work, seismic activity for checking out that basically they kept recording the same sites like 10, 20 times. You could go through the record and you know like almost every other year a site's been visited. And so what they be basically actually did was in certain areas, where they feel that they have enough survey where they basically found everything.
00:26:01
Speaker
Instead of forcing people to do another survey, they just put money into a pot that then goes to research-based projects. So even if there was that emergency thing they're not doing survey in the parts of the Permian Basin, it's not going to affect the archaeology because they haven't done surveys there for 15 years? No, 18?
00:26:21
Speaker
It's maybe 20 years um in certain areas. So that money will still get paid in And it's not going to change anything there. That's a huge oil and gas area. So lot of those smaller projects on gas wells and stuff like that, we're not actually going to see any difference because there's not actually work really happening.
00:26:42
Speaker
yeah And, you know, as far as just just to touch this, we have a few more minutes. I think it's a good way of ending the segment. So, you know, there's been a lot of talk about the layoffs. It's always sad when people get are laid off. I mean, it's a very scary situation to lose your job.
00:26:59
Speaker
especially if it's one that you love dearly, you really enjoyed, it was something you had worked really hard to get to that point. And especially, you know, you get hired. Those that are being laid off right now are probationary.
00:27:12
Speaker
So probationary meaning they've been in their specific job for a certain amount of time, typically a year, And that also includes people that may have been working for the National Park Service for years, but had re been promoted into a new position.
00:27:28
Speaker
And so now that position, they are now probationary. So, you know, it's scary and it's sad, but this is not uncommon. There were a lot of layoffs in 2017 when Biden came into the office into office and Also, just remember, this is not, of course, not to say I don't personally have compassion or the other hosts don't have compassion for those that did lose their jobs.
00:27:54
Speaker
But we do need to at least deal with the facts here. We have 2,300 that were, sorry, let That's my brains. That were sorry let go. like breath that were let go in the National Park Service, or sorry, 1,000 in the National Park Service, 800 in BLM.
00:28:14
Speaker
And the National Park Service, ah all these right now are probationary roles that were let go. think there were maybe a few others, but for the most part, it was probationary. If we look that across the national parks, we have over 400 national parks. You're looking at two per national park.
00:28:30
Speaker
I'm sure it's more in some areas. than in other areas, but this is not a massive layoff. That does not mean that it's not hurtful to those that were laid off and they now have their life in upheaval they find another job.
00:28:44
Speaker
Yes, that is the case, but it's not like this mass gutting of the National Park Service that some um people are imagining it it is.
00:28:55
Speaker
So i with that, I think we're going to switch over to segment three and we'll be right back. Hey, welcome back to CRM Archaeology Podcast episode 307.
00:29:11
Speaker
We are are on the third segment, are wrapping up this topic, which just like last recording is for sure going to just ah spring. We're going to have another episode, I'm sure, on this.
00:29:24
Speaker
I think i have a feeling this is all we're going be talking about this year. But anyway, I did want to say one correction. I said 2017, the last segment, as far as the layoffs, I meant 2020, but it also happened in 2017. And then it happened at the, you know, every administration has layoffs. So anyway, that's, I i just wanted to correct myself.
00:29:47
Speaker
So Doug, Yeah, I think going back to our previous question, also, you know, back to bills, you know, what happens if you sort of have people who don't want to enforce the law?
Abolition of the Chevron Doctrine
00:30:02
Speaker
And actually, i'm pretty sure there's not many people who've gone through and read through the regulation, Section 106, because it's not just Section 106, there's a whole law. There's actually a section in the National Historic Preservation Act that literally says,
00:30:17
Speaker
So while Section 106 is actually quite small, there's other sections throughout, and some of those were added by amendments in 1980 and 1992, which expanded Section 106 to include tribal representation and consultation, stuff like that. so While it is a very small section that a lot of stuff is built on, there's actually other sections in the Act that sort of expands that out and what needs to happen in Section 106. And one of those is literally just saying that agencies cannot avoid Section 106. They can't undertake work that basically undermines or in any way is seen to try to...
00:30:59
Speaker
Spirit under, avoid, don't know, use whatever words you want to do Section 106. So again, potentially, this is probably going to be lawsuits that are going to take years to work their way through the courts.
00:31:12
Speaker
But if someone wants to, again, this emergency declaration might not actually be legal within the regulations, and it might not actually be legal within the overall act.
00:31:23
Speaker
So um if you guys had seen the stuff that came out from ACRA and you know different organizations um a couple of months ago saying that you know Section 106 and all the regs around them are all safe with the change in the Looper Bright case, and we'll get to that in just a moment.
00:31:43
Speaker
you know What they somewhat did mention was actually part of the regulations that were the big redo, it took seven years to do it. They put them out. In 2000, they got sued by the mining trade body, won most of it, which made most of those regulations safe.
00:32:01
Speaker
But actually, they one of them they basically found was an overstep. that Actually, the council had given itself in the regulations the ability to basically challenge agency findings and say they were wrong.
00:32:14
Speaker
And that was not in the act. And so it was seen as an overreach and basically declared illegal. And they had to take it out of the regulations, which they did. But the same could happen. like There could be a challenge and they could basically go back to that section of the act and say, well, this emergency declaration is actually just an attempt to get around doing section 106.
00:32:37
Speaker
And could go through the courts and... it might basically fail. Or, well, I guess the emergency thing could fail as well. And part of that is actually this sort of this change.
00:32:51
Speaker
I'm not sure if anyone has kept up with their legal cases. There used to be what's known as the Chevron but ah Doctrine, which was if there was ambiguity in the documents or the laws, the agencies could basically do an interpretation and their interpretation If it was reasonable, ah reasonable has this huge backing in legal terms. So when say reasonable, don't think of this as like common term of reasonable. Think about this like if I was talking about some Latin term, because it' it's really what comes down to in legal sense.
00:33:25
Speaker
As long as those are reasonable, they would defer. Now, the courts threw that out last year with the looper bright and basically said, instead of deferring to the executive on what these regulations would mean, and now goes back to the courts.
00:33:40
Speaker
And so potentially... ah this People looked at it as sort of a it was going to affect and be more harmful for the environment, um but actually, somewhat, you know going back to Bill's question in common, what happens if you have administrators who basically don't want to fulfill their obligations or try everything they can to, say, change the regulations or the rules or their interpretation or their actions, anything like that, to not enforce it?
00:34:10
Speaker
This actually takes away a lot of that power that you used to be able to get away with a lot more with that in the executive. And now it goes back to the judicial. And so again, it's just going to be more lawsuits, lots of lawsuits, but it's going to be decided in the courts and it's actually going to make it a lot easier Or say anyone now to say challenge the Trump administration because there's no longer that sort of almost instant win of, oh, well, the agency says it, so it must be true.
00:34:39
Speaker
That is, of course, a bit of exaggeration and a simplification. It's a lot more there. We don't have, you know, the next six hours of a podcast go through all the legal bits of that. But Yeah, I honestly am just seeing like massive amounts of lawsuits in the future and all sorts of questions about, is this legal?
00:34:58
Speaker
And actually, probably the current administration is going to lose a lot more because of this in a somewhat ironic twist. i feel I kind of feel like the lawsuits are actually the goal of it.
00:35:13
Speaker
Because they'll slow things down in the in the short term, right? And so, you know, it'll be easy to say the entire system's broken and therefore we shouldn't really listen to anything. But I guess maybe I'm a negative person. But, you know, it just seems to me like the lawsuits are the goal to make ambiguous laws so that purposefully, you know, it it sparks a reaction that then just ties everything up.
00:35:38
Speaker
So I think Bill and i are more on that side of things than maybe Heather and Andrew in our sort of tin hat conspiracies. But i will say, i actually...
00:35:52
Speaker
I don't know if you can call this more hopeful, but I think that is a step too far in their ability to think. and this this I will be completely honest. This is based on but I see, and this will be my perception. but Honestly, like they put out like you know that list of 600 projects that, quote-unquote, the emergency act is going to go through, and they even double-check it. There are projects that have no relation to energy and gas.
00:36:17
Speaker
like Honestly, most of it just feels like they're going through the motions of... They're not looking for governance. They're not actually really looking so much to change the system. They're just looking to make sp splashy headlines. and and just like I don't think they actually think about this mess. like This is going to cause a massive mess.
00:36:38
Speaker
So many lawsuits. It's going to slow down oil and gas production. and you know All these products are going be slowed down by lawsuits. And I don't think they even care. Like that sort of assumes that they care about morphing the country into like their ideology or anything like that. I feel like you're, that might be a step beyond their thinking.
Future Lawsuits and Changes
00:37:01
Speaker
But again, that is a personal opinion. i will be very clear on that. but This is not me looking at numbers and saying like, you this is a fact. I'm just looking at and being like, it just seems like a shit show, like the first term. And, you know,
00:37:17
Speaker
Well, I mean, they did not hire career bureaucrats, right? So it's like a combo of the cabinet from idiocracy mixed with like the cabinet or the group of people that Dr. Evil was working with. And we all know how that turns out.
00:37:30
Speaker
Yeah, I mean, like there is, so there's quite a bit of power that they could really do but to change things. And maybe we spend the last minutes thinking about like, if we had that power, what would we do to change things? But like, ah so in the regulations, in the Act at National Historic Preservation, they basically say the council can put together regulations that implement it. So all that, you know, all the 800 regs are basically been empowered to the council and that can changed at any time.
00:37:58
Speaker
Of course, any changes could then lead to lawsuits, but there's other regulations as well. So like there's parts in there that where the secretary of interior has been given power and it's, you by a,
00:38:10
Speaker
currently in the law system, if the law says so-and-so has this power, then they have that power. And that's not affected by Looper, Bright, and all those court cases. and So like, you know, if we wanted to, we could lobby the Secretary of Interior to change the Secretary of Interior's qualifications to be an archaeologist.
00:38:29
Speaker
We could change any of those Section 106 regs that come out from the council. And I guess I throw it up to you guys, you know, but maybe it could happen in this administration, but, or in the next or in in the future, but if you could change anything, cause we could change a lot. What would you actually change?
00:38:46
Speaker
I know. Okay. I'll go first. So I, I, I love this question. i think it's funny for me. ah What matters for me is being a resident of California. And I was just thinking about this. I think I'm a fourth generation resident of California, something crazy, but The short answer is the federal laws i've I've overall been pretty cool with, you know, be it Section 106, you know, et cetera, et cetera. i I feel like they've made sense.
00:39:16
Speaker
I feel like I've been OK with it. Sure. There's a couple of nips and tucks. Like sometimes there's kind of a multilayering of agencies and stuff. you like, oh, come on. I think haven't we already done this? But but overall, i can deal What kills me, honestly, is actually the state of California laws. Like some of it has just become ludicrous, Bill.
00:39:36
Speaker
And so if I was like all seeing emperor, God, king, I would kind of just continue with the federal stuff. Maybe a few nips and tucks. I get it, you know, but but overall, i'm cool. But the California stuff, I'd be like, dude, let's just go with the feds and stop all this mirroring of federal law and then making it 10 times worse.
00:39:55
Speaker
I mean, if if I had any suggestions to the secretary, would be prioritize 110, because just like you said in the Permian Basin, right, if you're actually out there looking at all of the stuff and you have a pretty good idea where stuff's at, and you also know which zones have been covered, then what is there really to do Like, rather than waiting for 106, like, you already actually know what's in your land and and what you have.
00:40:21
Speaker
Oh, and bill Bill, what is 110? Oh, sorry. 110 is a section of the National Historic Preservation Act that recommends or encourages agencies to proactively survey the lands under their administration for cultural resources in advance of, you know, projects.
Importance of Section 110
00:40:40
Speaker
that could create adverse effects to eligible or potentially eligible historic properties. It's a programmatic, it's like a programmatic approach. Yes. two Yeah. yeah I'm in favor of big time.
00:40:53
Speaker
Yeah, because you know not only does it set aside budget for cultural resources rather than like pushing to get money in advance of construction, you have folks essentially on retainer that are constantly looking over your lands and trying to look at areas where you have sites and then occasionally looking areas that don't, right? And so I've been part of some 110 projects. They're really cool because there's no...
00:41:18
Speaker
urgency that this very second dozers are rolling. And so you really can work with tribes. You can spend your time looking at you know historic properties and other stuff because it's not super urgent that this has to happen tomorrow.
00:41:30
Speaker
Yeah. You stole my thunder, Phil. That was actually. I'm sorry. and know It's good do because I agree that I really do think having more of a programmatic approach and a very systematic um way of looking at cultural resources is definitely a much more effective way of preservation.
00:41:48
Speaker
It really is. And when we're not in a rush to to make these decisions and when people don't have. I people breathing down their necks or applicants breathing down their necks.
00:41:59
Speaker
Like it's made, I think these decisions can be made a lot less emotionally in when we do it in a programmatic way. The other thing is that, you know, listen, the bureaucracy has created this situation.
00:42:15
Speaker
We would be really naive to say that the bureaucracy that is a a large part of our, of our, you know, disciplines and has not created this situation that we're in right now. i mean, there's, it is, it's a slow process. It's convoluted. It's many times not consistent and it has allowed for so much change.
00:42:43
Speaker
just long periods of assessments that are really ridiculous and people taking advantage of, you know, people being over, you know, overrun by work, others not doing work.
00:42:56
Speaker
And now we're just completely inefficient. And this is now gotten, it's come to a head. And i think that for, you know, wherever people sit on one side or the other,
00:43:09
Speaker
We need to wake up and we need to have a more ah more expedient way and a more common sense approach instead of having bureaucracy for the sake of bureaucracy.
Bureaucracy and CRM Improvements
00:43:21
Speaker
And whether people agree with what's going on right now or not, and I hope, my hope is, the optimists in me, is that this is going to clean things up a little bit. And I know Doug's to say that's no way that's happening, but...
00:43:35
Speaker
i I really do hope that people realize, okay, we've we've gotten into this situation because, and this is coming from somebody who works in California, obviously a lot. it's It's ridiculous. the The amount of time and the amount of expense that somebody has to endure, an applicant has to endure, even for a single family home is outrageous.
00:43:59
Speaker
And that is what VRC has created. um Yeah. See, Heather, that's what I was kind of hinting at. For me, it's always the California stuff that really brings me down.
00:44:10
Speaker
Yeah. But I think it's not just California. I mean, this is definitely on the federal side, too. I mean, i work with it all the time. There's nothing but excuses as to why things can happen in a timely fashion or in a reasonable fashion. Yeah.
00:44:27
Speaker
Yeah, so I'm not going to not agree with you, Heather. But would say... A double negative? Yeah. yeah What I was going to say is unfortunately, i think part of those problems, and this this is a completely different podcast because I can look at our time and see that we've gone over already a minute.
00:44:54
Speaker
It was to say, it's like, actually, part of that is the bureaucracy that has to work inside of the regulations. We don't have enough time to go into that. But honestly, would love to see a completely different system, and you'd have to change the law on that. It's because you know there's things like...
00:45:10
Speaker
There's all sorts of things like consultation. i think that's where you get a lot the bureaucracy because basically it says you have to consult, but actually it gives very little power. So like you know yes, you must consult the tribes and stuff, but you know if you still want to like bulldoze through their um sacred site or their grandparents' graves, you the agency can still find a way to do that.
00:45:33
Speaker
And I think you'd have to completely gut, and we don't have enough time to cover this, like actually the laws to make them more people or community friendly. Maybe that could be for a different podcast, but I would say there's different ways of doing it. There's a better, kinder future that we could strive for.
00:45:51
Speaker
So, you know, yeah yeah, exactly. Once again, going back to 110, because I don't think consultation is the problem if you're actually on time, right? Rather than waiting for
Consultation and Planning in CRM Projects
00:46:01
Speaker
dozers to come. And this is what tribes and a lot of communities are saying, rather than waiting for the day that you're going to try to sneak a freeway bypass, you know, right through our neighborhood, maybe have us be part of the planning broad process. Like rather than thinking that consultation is a problem or a kink in the system, add it as a feature,
00:46:19
Speaker
So that you can get better, a better understanding and better outcomes, you know, in the end. And as always, Bill was in like half the time and much more eloquent than what I was trying to say. Yeah, just ditto what Bill said. That's all the points I wanted to make. And you know what?
00:46:35
Speaker
That doesn't have to be left to the bureaucracy. That is our job lawyers. consultants to push that that along. Now, obviously, consultation needs to occur government to government, specifically with tribes, but it can be a lot faster if savvy consultants are pushing that process along.
00:46:57
Speaker
There are things that consultants can do to make that timing and yeah, can that can affect the timing. Part of that also, I mean, that goes back to this, maybe your point there, Heather, about like if we could change the 800 regs, because that does put a sort of sequential...
00:47:15
Speaker
process and point, which actually makes it, i feel like that process, well, you know, I should say everything, you know, like i don't want to lot of people put a lot of effort into those things over the years and over the decades.
00:47:28
Speaker
I think it's, it's not like it's better than having nothing and it should be okay. But you know, part of that is we could do better. I think there are better ways of doing those processes where you could actually make it so it doesn't hold up projects as much.
00:47:43
Speaker
But ah also like if you pushed it to, as Bill was saying, consultation before you even decide you're going to build freeway through grandma's grave. All right. Well, I think, you know, this is just an introduction to our next episode. i have a feeling.
00:48:02
Speaker
That's it for another episode of the CRM Archaeology Podcast. Links to some of the items mentioned on the show are in the show notes for this podcast, which can be found at www.archpodnet.com slash CRMARCPodcast. Please comment and share anywhere you see the show. If you'd like us to answer a question on a future episode, email us. Use the contact form on the website or just email chris at archaeologypodcastnetwork.com. Support the show and the network at archpodnet.com slash members. Get some swag and extra content while you're there. Send us show suggestions and interview suggestions.
00:48:32
Speaker
We want this to be a resource for field technicians everywhere, and we want to know what you want to know about. Thanks, everyone, for listening, and we'll see you in the field. Take it easy. Thank you for having me on this podcast, pleasure Heather. It's been a real pleasure.
00:48:47
Speaker
And you always, like, lean and you can't follow that. You can't just be like... ah cause they just like copycat and I can't just say goodbye. I couldn't even like thank Heather. now I know. I know.
00:49:01
Speaker
Andrew, man. From now on, I'm going before Andrew on everything. You better hurry it up. You're so welcome, Doug. All right. Goodbye,
00:49:11
Speaker
guys.
00:49:19
Speaker
The Archaeology Podcast Network is 10 years old this year. Our executive producer is Ashley Airy. Our social media coordinator is Matilda Seabrook. And our chief editor is Rachel Roden. The Archaeology Podcast Network was co-founded by Chris Webster and Tristan Boyle in 2014 and is part of Cultural Media and DigTech LLC. This has been a presentation of the Archaeology Podcast Network.
00:49:40
Speaker
Visit us on the web for show notes and other podcasts at www.archpodnet.com. Contact us at chris at archaeologypodcastnetwork.com.