Feds say Feds Fail to Consult Tribes Properly on Infrastructure Projects
A new report issued by the United States Government Accountability Office (GAO) calls upon federal agencies to fulfill their obligations under law to consult Indian tribes on major infrastructure projects. The report also recommends that Congress finally resolve the decades-long failure of the Army Corps of Engineers (Corps) to comply with the Advisory Council on Historic Preservation’s (ACHP) Section 106 regulations.
Twenty-one federal agencies and one hundred tribes participated in GAO’s efforts to understand the challenges tribes and agencies face in effectively carrying out tribal consultation on infrastructure projects.
Current Challenges with Tribal Consultation
The report is a result of lawmakers requesting a review of federal agencies’ processes following criticism over approval of the Dakota Access Pipeline and other recent highly visible controversies.
Federal agencies are required to consult with tribes when permitting infrastructure projects that may affect tribes. Tribes reported that consultations often happen too late in the permitting process, and agencies fail to meaningfully consider tribal input and report back to them the outcomes of consultation. Agencies reported that they sometimes find it difficult to find contact information for tribes to conduct early outreach.
The GAO outlines 22 recommendations for agencies to develop and update their own consultation policies, and to collaborate to create a central information system to identify and contact tribes affected by infrastructure projects. The call for a central information system echoes past recommendations by the ACHP, Bureau of Indian Affairs (BIA), and Federal Permitting Improvement Steering Council (FPISC) in their own reports on best practices for federal permitting of infrastructure projects.
Challenges to Appendix C
The GAO report also recommends that Congress address inconsistencies that have gone on for decades between the Corps’s Section 106 regulations, known as Appendix C, and the ACHP’s Section 106 regulations. The Corps’s use of Appendix C to permit the Dakota Access Pipeline led to narrowly drawn areas of potential effect and the failure of the agency to consider impacts to tribes over the full route of the pipeline.
Section 106 of the National Historic Preservation Act requires all federal agencies to take into account the effects of all undertakings on historic properties and provide the ACHP with a reasonable opportunity to comment on those undertakings. The ACHP has enacted regulations at 36 CFR 800 for implementing Section 106 that differ in significant ways from the Corps’s procedures. The ACHP has never approved the Corps’s procedures as required by law.
The GAO conducted in-depth legal and administrative research into the longstanding discrepancy between the Corps policy and ACHP regulations that will be useful to future permit challenges. The ACHP has repeatedly objected to Appendix C because it defines the geographic area of a project too narrowly, allows the Corps to delegate its responsibilities improperly to third parties, including developers, and unnecessarily limits opportunities for tribal consultation.
The report details decades of unsuccessful attempts between the ACHP and the Corps to rectify the inconsistencies. Yet, the Corps continues to insist its policies are consistent with Section 106, and the GAO calls on Congress to resolve the issue and to provide more certainty to the permitting process.
The ACHP, in response to drafts of the report, disagreed with the need for Congressional action, instead insisting that an administrative solution would be the most effective.
Why is this report relevant?
- For Federal Agencies: The report is clear that agencies have much more work to do to meet their statutory consultation requirements. The GAO provides 22 individualized recommendations to improve agency policy and practice, all of which should be implemented by the identified agencies. Any update to agency policy should also address the concerns described by tribes, namely that agencies often begin consultation too late, communicate poorly about consultation opportunities and outcomes, and lack respect for tribal sovereignty and treaty rights. Agencies will also need more resources to support consultation and to be able to pay for tribal consultation, and they need to include this funding in their budget requests.
- For Tribes: This report affirms what many tribes have been saying for a long time: tribal consultation must be dramatically improved. The report itself will serve as a useful tool in future efforts to challenge permit decisions, call for Congressional action, and push for administrative policy reform. The report provides both detailed research supporting better information systems and consultation policies, and concrete documentation of just how widespread these tribal concerns are. This report can be used before, during, and after consultations to advocate for improved policies. In addition, the report cites “insufficient funding for tribal historic preservation officers as a factor hindering effective consultation on infrastructure projects.” Tribes should work with the National Association of Tribal Historic Preservation Officers (NATHPO) and other advocacy organizations like the Coalition for American Heritage and the National Trust for Historic Preservation that are lobbying for increased Congressional appropriations for THPOs and agencies.
- For Developers: This report serves as a reminder of the risks of relying solely on the Corps—or any other federal agency—to carry out consultation and tribal engagement for your projects. The report makes clear that the vast majority of agency policies are insufficient in upholding consultation requirements. Relying on those policies puts infrastructure projects at risk of delays, protests, and litigation. To avoid these risks, developers should reach out to tribes at the first steps of project planning, long before a permit application has been filed. Developers should monitor the agency consultation process to be sure that it is on track and the agency is not ignoring tribal concerns. Relying on agency action alone may not address tribal concerns and could result in major losses for infrastructure projects.
- For Consultants: More than half of the tribes that provided comments expressed concerns about how agencies identify tribal resources. The report states, “According to several tribal officials we interviewed, agencies sometimes rely on archaeologists who may not have the specialized expertise or traditional knowledge, such as oral histories passed across generations, needed to identify tribal resources.” Consultants should be sure that they are seeking out the expertise of tribes early in the identification phase of a project to supplement their own knowledge and experience. If you are asked to consult on a federal project, ensure you have the requisite expertise, or work with someone who does.
Marion Werkheiser is Managing Partner of Cultural Heritage Partners, PLLC, a global law and policy firm that serves clients who seek to preserve and share history and culture. Questions about how these issues will affect you? Email Marion at marion@culturalheritagepartners.com.
This blog post is not intended to provide legal advice to any particular company or entity.