By Amy Cole and Brian Turner
Today's working world is often all about “team building.” And there are ground rules for working as a team—to use more business lingo, let’s call them “best practices” and “worst practices.” In practice, Section 106 consultations should be a team exercise, with all parties working together to come up with an agreed-upon solution. Sometimes, however, consultations don’t work that way. As part of this series on Section 106, we will run posts on best practices and worst practices. In the final post of the series, Amy Cole and Brian Turner from the National Trust for Historic Preservation take a look at a recent successful example of Section 106 consultation and include a list of best consultation practices for agencies. In the coming months look for the next blog series on the National Historic Preservation Act, which will focus on Section 110.
|View of Nike Site Summit in Alaska. | Credit: Brian Turner
Compared to other state and federal environmental and historic preservation laws, Section 106 is unique in that it gives parties with a “demonstrated interest” in a project affecting a historic place the ability to consult with the federal agency to “avoid, minimize, or mitigate” impacts. This power-to-the-people aspect of the law gives those who know their communities best a role in the decision-making process. Section 106 places faith in the power of discussion to resolve disputes.
But, as some of the most hardened advocates will admit, in practice, full consensus is a laudable goal that is rarely achieved. Ultimately all sides must be prepared to make some compromises in good faith.
Which begs the question, what is good faith? How much should advocates be expected to give up when things aren’t going their way? No consulting party has to concur with the Memorandum of Agreement (MOA) or the Programmatic Agreement (PA)
that emerges from a consultation. Ultimately, the best exercise of good faith is advocates using everything at their disposal to make an outcome work.
A example of a recent successful consultation involved the Nike Site Summit in Alaska.
Nike missile sites, which were constructed around the U.S. in the 1950s, played a major role in America’s national defense strategy during the Cold War. The Nike Site Summit, commissioned in 1959 and decommissioned 20 years later, is located in the mountains above Anchorage. The site contained numerous buildings including launch aprons, administration buildings, storage sheds and barracks, and today is one of the only fully intact survivors from the era. The National Park Service has indicated that no comparable Nike site in the U.S. possesses the same level of physical preservation.
So when the Army proposed to tear down 12 buildings in 2007, advocates rallied. The ACHP, SHPO, NPS, and several consulting parties, including the National Trust, played a role, supporting local consulting parties, including veterans associated with the Friends of Nike Site Summit
, that were intimately familiar with the site. Ultimately the groups succeeded in convincing the Army in dropping plans to demolish nine buildings. So how did it happen?
The outcome was creative, culturally appropriate, and based on intelligence gathered as a result of the consultation process. The MOA had consensus from all parties and exhibited good faith giving and taking on both sides. The Army ultimately created retention plans for many of the buildings initially proposed for demolition. It allocated many of the future responsibilities for the buildings to the Friends group, including maintenance and bringing the buildings up to code for public access. For other buildings the Army agreed to delay demolition and let the Friends group do stabilization work. All agreed that some buildings were too far gone and some demolition occurred. The Friends group was particularly persuasive with the Army as it had demonstrated capacity to rally volunteers to do the necessary work. Today, the group remains active and eager to interpret the site.
A View From Across the Table
|Consulting party site visit to the bridges of Yosemite National Park. | Credit: National Trust for Historic Preservation
So what makes this consultation a success? As lawyers at the National Trust, we’ve taken part in too many Section 106 consultations to count. We gather with local governments, SHPO staff, advocacy partners and neighbors “across the table” from the federal agency sponsoring the undertaking. We spend time, often many months, navigating “the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them,” as the regulations define consultation. Through this lens of seeking ways to avoid, minimize or mitigate effects on historic properties, we have identified some Best Consultation Practices for Agencies
which have proven to make the difference between a doomed consultation outcome and a stellar one.
Take all comers.
If an organization wants to be a consulting party, let it join. Why get off on the wrong foot by cutting out interested participants? You never know what great ideas you may miss when people aren’t at the table. Focus on inclusion, not exclusion.
Don’t assume you know the consultation outcome before the first meeting.
An open discussion about the goals of all parties and about how the consultation can address those goals is great place to begin. Announcing at the first meeting that “we are absolutely going to tear down this building in a month” is not the right approach. Set a collegial tone at the outset. Consider that all parties are supposed to be there to add value to the discussion, offer ideas and alternatives, and develop creative solutions that others may never have considered.
It’s okay to use a cultural resource/environmental consultant, but remember that the buck stops with the agency.
Identify a responsive, collegial and responsible agency contact for all inquiries related to the consultation to ensure that the agency, its consultant and consulting parties work jointly. Do not pit participants against each other. The agency and its consultant should participate jointly in Section 106 consultation. Offer honest responses to questions and be upfront about who makes the final decision on the consultation and undertaking.
Use an outside facilitator.
It can be very difficult for an agency staff member to run the meeting, smooth out problems, take notes, operate the PowerPoint, provide coffee, and still be able to have his or her head in the game on the substance of the consultation discussion. These tasks can be delegated to a trained third-party facilitator or meeting assistant. In addition, this avoids the perception that the agency is involved in “self-dealing.” A neutral facilitator can ease tensions among parties, provide ample opportunities for people to voice their points of view, and manage difficult participants and issues. Even the most contentious, substantive negotiations can be made easier when the meeting is well run.
Set a meeting format and schedule and stick to it.
At the first meeting, establish a proposed timeline, a regular schedule for meetings, and meeting format. This can be made easier by the use of technology like Google calendar, setting a schedule with a Doodle poll, and offering reliable connection for remote participants via conference call or webinar. For a complex consultation, consider a Web page where all relevant documents can be accessed by all.
And finally, take time to develop personal relationships among the consulting party group.
Group site visits to look at a project or meals with agency staffers at the meeting lunch break, provide a wonderful opportunity to get to know people outside of their defined roles at the negotiating table. It’s easier to work with people that you know on a personal level. I was once told by a fellow consulting party, “It’s pretty hard for an agency staffer to yell at me across the table when she’s been dinner guest at my house.”
Want more? Read the full Section 106 series and the series on Section 110 of National Historic Preservation Act on this page.
Brian R. Turner is the senior field officer and attorney in the San Francisco Field Office and Amy Cole is a senior field officer & attorney in the Western Office of the National Trust for Historic Preservation.#Section106 #Legal