1. May 8, 2018 Marion Werkheiser, Cultural Heritage Partners
Building Across Boundaries: Developing Energy Projects On Or Near Tribal Lands And Resources
May 8, 2018
Marion Werkheiser, Cultural Heritage Partners

2. Overview The National Historic Preservation Act (“NHPA”) requirements
Risks inherent in the NHPA process
Strategies for effective tribal engagement

3. The National Historic Preservation Act
National Register of Historic Places
Section 106 process
Advisory Council on Historic Preservation (Advisory Council or ACHP)
State Historic Preservation Officer (SHPO)
Tribal Historic Preservation Officer (THPO)

4. The Section 106 process is a requirement of federal agencies
Federal agencies must
….consider the effects of their “undertakings” on properties already listed in or eligible for listing in the National Register of Historic Places (NRHP).
Undertakings: projects that use federal dollars and projects that require a federal permit, license, or approval
Do properties need to be situated on federal land? NO
Do properties need to have been nominated for or listed on the National Register already? NO

5. Examples of Federal Undertakings
A natural gas pipeline on private land permitted by FERC
A project built on/through a wetlands or waterway
A project that uses federal grants or financing
…and many more!

6. Consulting Parties May Include:
All affected Tribes or tribal populations
The Advisory Council on Historic Preservation
The SHPO or THPO (or both)
The Federal Agency(ies) with jurisdiction
Permit Applicants
Project Proponents – private or public
Historic Preservation organizations
“Interested parties”
Legal representation of some or all of above

7. Federal Law Requires Meaningful Tribal Consultation in the Section 106 Process
Tribe does NOT have to be located within the area of immediate impact, or even nearby!
Consultation is on a government-to- government basis

8. Traditional Cultural Properties
Spirit Mountain, Nevada
Bighorn Medicine Wheel, Wyoming

9. Agency Consultation Gone Wrong Can Threaten Your Project
Delays in permitting
Interests and details get lost in translation
Political and community opposition
Litigation: more delays, and more costs

10. Example: Ceremonial Stone Landscapes

11. Example: The Dakota Access Pipeline
Crossed Missouri River at a site of historic significance
Long-standing relationship of mistrust between tribes and USACE
Construction started long before consultation was complete

12. BUT! Section 106 is Not the Only Route
If there is sufficient trust and flexibility, companies can:
Negotiate a separate agreement
Creative mitigation
Alternative processes (NEPA)
Delegation of consultation
Direct meetings without the federal agencies
Start talking to tribes early in the planning process!

13. Top 10 things to consider when engaging with tribes
1. Every tribe is different, you can’t generalize.
2. Learn who makes the decisions in the Tribe(s) and who is empowered to work with you.
3. Respect: Treat tribal leaders the way you would other government leaders.
4. Understand the areas of concern can change - and that’s to be expected.
5. Tribes interaction with the agency might be colored by other matters they may have.
6. Thoughtful gifts can go a long way.
7. Listening is really crucial. Don’t assume you know what their concerns are.
8. Hire Professional Help.
9. Training is a MUST!!
10. Don’t Wait on the Federal Agency to Do It For You!

14. Cultural Heritage Partners
Questions?
Marion Werkheiser
Cultural Heritage Partners