This presentation is part of the online document Acknowledging Landscapes: Presentations from the National Register Landscape Initiative.

Steve DelSordo: As I’ve explained to a lot of you folks, I work for a lawyers agency and I often say that it’s 1,500 attorneys and then me, so I’m required by my attorneys to say that these are my own views and not necessarily those of the Federal Communications Commission, although I am the Federal Preservation Officer for the Federal Communications Commission.

I’ve had a long term interest in my career for landscapes, both small ones and big ones. This is a project I worked on probably easily 20 years ago and it was to nominate the National Harbor of Refuge in Delaware, when I was the Delaware National Register Coordinator Administrator. It only touches land in one small spot, the rest of it includes these various breakwaters, lighthouses, ice breaking piers and a whole bunch of other things. From there we moved on to looking at landscapes as part of what we do at the FCC.

To help you all understand what we do with towers because they’re not real sexy things, but they’re all over the country in a wide variety of places. Some of the challenges for landscapes is that communications towers, both cell towers and broadcast towers, public safety towers, they all tend to like to be in high places so they can get maximum coverage. The FAA requires that towers that are more than 200 feet tall have lights which tends to be a real problem for the tribes and a lot of folks live in historic communities because they don’t want to see the lights. What I tell them, I live in an historic district and when I look out my front windows I see lights for a broadcast tower and I look out my back windows I see light for a communications tower. So I’m surrounded by towers and lights.

They come in a wide variety of configurations, monopoles, guyed towers, all sorts of different heights. It’s important to remember, especially for landscapes issues, that the towers for commercial licensees, AT&T, Verizon, T-Mobile those kinds of guys they have geographic licenses so they can site a tower pretty much wherever they need to for their engineering and coverage needs. But they’ve got flexibility to move them. The broadcasters and the public safety, police, fire departments, have site licenses.  They have very little ability to move those. So they tend to need to go where they need to go. In addition to all the attorneys I work with, we have a small number of engineers and I have asked some of the tower proponents to provide us with their engineering requirements and I’ve had them checked by our engineers and we’ve been able to move things a little bit where the towers proponents have thought not necessary possible.

We try to do as little harm as possible to the landscapes. Actually I’m sort of proud of the fact that over the past few years, we usually review ten to twelve thousand communications tower projects in a year, that doesn’t include our current Railroad Positive Train Control Initiative which is different. I would say eleven thousand is an average over the past few years. Probably less than a hundred have an adverse effect on an historic property. The industry has gotten pretty good about being able to move these things around and not cause adverse effects.

They come in all sorts of shapes and sizes. They can be the size of silos. There’s some out there that look like cacti, there’s some really awful ones, especially older ones that try to imitate pine trees, they sort of don’t work, especially when there are no pine trees. But the industry has learned to paint them, they’ve learned to do all sorts of things. They’re trying to do a good job because they recognize that when the tower has an adverse effect whether it’s through the Section 106 process or through NEPA , the Endangered Species Act, whatever that this causes a lot of extra time and financial expense for them. Out of necessity they’re trying to make these things look better and they’re trying to be very careful about their siting. They will try to avoid those things, when they do their pre-evaluations that they think might cause adverse effects or other environmental impacts.

The FCC, we own a little bit of land. We own actually cold war listening stations around the country. Those things have purposes that I can’t really talk about. I can’t even photograph them, but for the most part our projects go on private land, sometimes on federal land, state land, et cetera, tribal land. But our projects don’t go on our own land. We are a licensing agency a regulatory agency, so our projects go where the tower proponents want them to go.

This is a project that we’re very close to with the tribes in New England especially Doug Harris who I hope is on the phone. Our wireless carriers needed to put up a tower that would be for telecommunications and also for some of the local community, the police and fire departments in this one town in eastern Massachusetts. When the tribes where notified, we notified through an electronic system that we have called the tower construction notification system, the tribes said that this tower project would have an impact upon what was called at that time the Upton Chamber and its associated viewing stones. The Upton Chamber is a system that has a very old history. I’m not sure exactly how old it is.

When we work with tribal nations we tend not to ask for elaborate details. When it was built, why it was built, and how was it used? We tend to take a recognized tribe elder’s word for it. In this case we did that, and they explained to us that the chamber, the one in the upper left hand slide, goes back into the hillside. Somebody standing at the back at certain times of the year could observe the movement of the stars and the sun and that had a lot to do with their yearly rhythms for planting and ceremonies et cetera.

The viewing stones, which one is shown on the lower right hand side, were at the other side of the valley. There was some concern that the original site of the tower would be visible from the chamber and that the tower a company wanted to put on top of one of the viewing stones or mounds and they complained to us. They asked for our involvement and we came directly involved. I did a site visit and worked very closely with Doug Harris and the other tribes up there and I’m hoping Doug’s on the phone I know he has meeting, and we were able to work with the licensee to move the tower so that it was not within the viewing area from the Upton Chamber and as mitigation the licensee was required to help the tribes map the various features of this site.

It was complicated by the fact that we’ve had this issue with a number of tribal resources across the country where the SHPOs don’t necessarily recognize these stone features that are important to the tribes, whether it’s a viewing system like this in Massachusetts or the landscapes of stone circles, prayer circles et cetera on the northern plains or southern plains.

What I’m finding in the work we do with tribes is these things are very common across the country. The SHPO wasn’t willing to work with us on this particular project, so using my own authority and my agency’s cooperation; we worked very closely with the tribes and the applicant to identify this as a cultural landscape. There’s no National Register nomination associated with it. We didn’t want to ask our licensee to go to that level of detail, did not want to ask the tribes involved to provide that level of specificity that we thought would be needed by the National Register to prove that it was a historic property. So we did it, basically a consensus to termination that it had been identified to us by the tribes and we moved on.

These are two tribal sites, they’re areas that were very important to the tribes. In the lower right hand corner is a tower that fell. It was a broadcast tower, a very tall one, thousand feet or so in South Dakota that the tribes objected to, but it was installed in the mid 50’s before the National Historic Preservation Act and it was installed on a site on a property known as Medicine Butte. Finally after 40, almost 50 years, the tower blew over in a storm. The licensee wanted to put it back up in the same location, a couple of local tribes objected and we worked with the broadcaster and the tribes to find a new location for this tower so that the butte could be returned for tribal access. Because while this broadcast company was up there, they actually broadcast from there in the 1950’s, local TV shows and things like that, the tribes didn’t have access to the butte.

Now with this gone and with help from the broadcaster, the butte is now accessible. One of the things that helped us in this was the tribal elders explaining the importance of the landscape and the viewing area. This is a photograph actually from a little bit down the butte. I just wanted to show that the towers fall occasionally. But that landscape you’re seeing over the top of the tower remains was important to the tribes, the view of the Missouri River and they wanted that preserved as much as possible. So they were very happy with that resolution and again it was something that the tribal elders pointed out to us was a significant landscape. There was no need because the tower was being moved off the site to go to any kind of a formal National Register nomination or identification of the features of this landscape. And we cooperated with the SHPO on that, they were very supportive of this entire effort.

In the upper left hand corner a different state, we had an issue where a tower company wanted to put up a tower actually near a national park. The park told them that they needed to move it. The site that the park told them to go to was a ridgeline and the tower company was happy because they like to be up on top of ridgelines. The tribes objected because the site the Park Service told the tower company to go to was a big cultural landscape full of stone circles, prayer circles, burials, et cetera, that had not been identified and was not recognized.

And again, we didn’t have to do any kind of nomination work because the tower company agreed to move away from this site and to go someplace else. That’s our preferred route, to try to negotiate settlements to get tower projects moved so that we don’t have to go through the National Registration process whether it’s a consensus, determination of eligibility or a formal nomination because it … For our purposes, for Section 106, it doesn’t help the project and the tribes, especially with the upper left hand one with the stone features, the tribe was reluctant to reveal what was up there. The SHPO was with us that day and the SHPO saw what was up there and recognized that it’s important landscape but agreed that it was best just to leave it alone; it’s on private land. It’s used for light grazing and pasturing or if anything at all. Both of these were good resolutions.

We deal a lot with what I call cultural landscapes, for lack of a better term. These are big natural landscapes where folks go for cultural activities or recreation. The one of the upper left hand corner is actually the south rim Grand Canyon and these are a series of towers that are on National Park Service land. We don’t regulate how towers go on federal land so this is something the park did on its own initiative. But they certainly are in the center of my photograph of the south rim.

The one on the lower right hand side is a New Mexico landscape where a community at Chimayo, which is one of the few remaining walled cities left in the United States from the Spanish period. The reason this particular landscape is important is that there is a catholic church, El Santuario, which is the subject of a pilgrimage from Santa Fe to Chimayo on Easter. Where folks commemorating the passion of Christ on the cross on Good Friday will walk up from Santa Fe, some will carry crosses and other religious symbols, and they’ll walk down the road the lower left hand corner of that slide, down to their church to be blessed and to do prayers and other things.

There’s a cell tower in the middle of that, can’t really point it out, I didn’t have a chance to point it out but it’s sort of in the center of the photograph about half way up the little green ridge line. It was very important to the community that uses this for the pilgrimage route that the tower, they weren’t happy it went up near the Chimayo community, but they were especially concerned that the tower not be brightly lit in the sunshine. Because as you come over the road to Chimayo in the mornings when you’re here for the pilgrimage the tower was reflecting the sun light. So we worked, and our licensee worked with the community to pick an appropriate paint color which easily enough came the Sherwin Williams paint chips and they picked a brown color that matched the landscape of the region there.

We are also currently working with a designed landscape. This is Frederic Church’s Olana, which is a New York State Historic Site so it’s actually owned by the parent agency of New York state SHPO. There’s an old set of towers, you can see them up in the upper left hand corner. The landscape was very important to Frederic Church and he worked very hard at this estate of Olana, to make sure that he was able to preserve the views as part of his work with the Hudson River Valley Landscape School. He incorporated designed features, incorporated viewing areas, vanity ponds, the path go in certain directions.

We’re currently working with the licensee, with the SHPO and the various friends groups for Olana to try to do something about the two towers. The towers are old, they need to be replaced, they’re full, nothing else can go on them and there’s a need within the public safety community and the county where this is located, the Hudson River Valley, to get a better tower up there to support additional antenna, additional microwave dishes to improve service both for commercial, voice messages for broadband, and also for the public safety, community for ambulances and fire department. We’re in the early stages of this and the arrow in the lower slide shows where the towers are located. This is from one of Frederic Church’s paintings, watercolor of the site, it would be part of the landscape, it’s on private property, not part of the land that’s owned by the state of New York but certainly viewable. Olana management is encouraging people to come to Olana to replicate and to do their own artwork in the style of Frederic Church and the Hudson River School, so that how these towers impact that landscape is very important.

I’ve not looked at the National Register nomination for this particular property but I suspect that it’s somewhat older and doesn’t really deal with these aspects of the landscape that we’re working with now. That’s one of the challenges for us at the FCC because we’re reacting to documents and situations that are not of our creation. The towers obviously are, because they’re our licensees’, but we sort of have to work with what documentations there are because one of the things that’s part of our nationwide programmatic agreement with the Advisory Council is that our licensees are not required to do additional survey work. They work with properties that have already been determined to be either eligible for National Register or listed on National Register, that includes units of the National Park Service, but if they’ve not been determined as historic properties of if the National Register nominations aren’t exactly written in a way that makes it easier to identify the importance of landscapes, then we have to spend a lot more time negotiating and working with our licensees to try to get them to recognize their impact and the effect of their projects on these kinds of landscapes.

And that applies to a wide variety of things, Barbara asked me about some of our issues and we have issues with the survey identification of tribal lands. Who does that? What kind of level of documentation do we need in order to assess the effects of one of our projects on that kind of landscape? We find a lot of our projects end up being near battlefields, and while a lot of the battlefields in this country have been identified by the National Park Service’s American Battlefield Protection Program, often times they’re just lines on a map with a brief history of what the battle was that occurred there, but they’ve not been determined eligible, there’s not been a lot of work done on boundaries and on the features that we would need to know more about in order to determine what kind of effect we might be having on that.

Our communication industries are building out more and more in rural areas and they’re getting close to a lot of federal lands, parks land, national parks land, BLM lands because they’re customers are demanding access when they’re on vacation. When they go to Yellowstone, they want to be able to use their cellphones. When they’re on a national forest, camping for a weekend or hiking in the woods, they want to be able to use their cellphone. Our licensees are reacting to that and trying to get closer and closer to those and we’re having some issues, we’re having discussion with some of these agencies over how they make decisions about the types of landscapes they’re trying to protect when they don’t own the land.

It’s been an interesting discussion I think for both sides but at some point I hope we’ll arrive at a resolution.

Doug Harris: This is Doug Harris, Narragansett Indian Tribal Historic Preservation Officer. I’m the Deputy Tribal Historic Preservation Officer and I just want to commend the FCC, they were the first federal agency to proactively deal with ceremonial stone landscapes in the Northeast and the Narragansett Tribe along with the Wampanoag Tribe of [inaudible] and the Mashpee Wampanoag  Tribe collaborated with FCC and the local archaeological firm in doing the non-invasive mapping of the ceremonial hill where the ceremonial stones where that were visible from the chamber in valley [inaudible].

Now the Army Corps of Engineers include ceremonial stone landscape mapping surveys as a part of their permitting [inaudible].

Barbara Wyatt: That’s very interesting. One federal agency comes up with a protocol of sorts or recognition of the type of landscape and then another federal agency steps in to do the same.  Either one of you Doug or Steve how did the corps then … how did they end up following in the footsteps of the FCC do you think?

Steve: Well the tribes went to the corps in a series of projects that had to do with utility company right-of-ways and said; “we’ve got problems here we’ve got a number of ceremonial stone landscapes and we would like to articulate for you what our concerns are.” We did a presentation. We also had a film that we showed them that had been put together around the first ceremonial stone landscape which was at Turner Falls Airport in Massachusetts with the FAA. That’s a bit more of an adversarial situation, but the National Register supported the tribes when the SHPO was not in favor of acknowledging these as tribal.

The main thing was that the tribes stepped up to the plate and we said “We would like to present to you what our concerns are.” They said and we did and they responded positively. They have now gone through three major surveys that are part of their permitting process.  We put together a survey team that understands the tribal concerns when addressing ceremonial stones in the landscape.

Linda McClellen: It’s great to hear of this project and I was involved in the Turner Falls Airport in which the National Register considered the significance of these ceremonial stone landscapes as part of larger cultural landscapes important to a number of Northeastern tribes. Can the SHPOs of the affected states, and there is a number of states I would imagine you’ve been working with that Steve you may know of some of these projects yourself, have they come around to recognizing the importance of these stone landscapes and these stone features? Are they listening and have they changed their positions when these things are found in project areas?

Steve: I don’t have a whole lot of information on that given the large number of projects I had to pay attention to. I did this one with tribes and knew from conversations with the staff that the SHPO’s position was that these things were not tribal stone landscapes they were remnants of farm houses, farm fences, field clearings, and things like that, and they didn’t really explore that with them once they made it known that that was going to be their position. The tribes tend to be very cautious about who they’ll talk to about these kinds of landscapes.

I’ve been lucky in that they’ve shared some of them with me. But they’re problematic. One of the … for the example where I talked the slide that had the Grand Canyon the other slides, the archaeologists for the cell phone company was there on that site visit when I was with the tribes and the licensee and stood on the top of the ridge and said there were no historic properties here. There was nothing here of interest for the tribes. The tribal THPOs that were there said: “You know, you’re telling us that from the middle of a prayer circle and there is a burial behind you.”

The issue becomes who identifies these and what kind of knowledge they need to have in order to do that and is this the kind of information that folks wanted to be made public through the National Register process.

Doug: Since 2002, the United South and Eastern Tribes have been making available resolutions to the public and to federal agencies addressing this problem. Many tribes have been reticent about describing the significance of these stones. But what we’re finding is that if we don’t go public then these places get inadvertently destroyed and so United South and Eastern Tribes has been stepping forward and publicizing these issues and recently in an agreement with the U.S. Forest Service, I was a part of a team that consulted on the ceremonial landscape in the Talladega National Forest in Alabama.

Robert Thrower the Tribal Historic Preservation Officer for the Poarch Band of Creek Indians organized that process because fortunately the state archaeologist in Alabama was supportive of these as ceremonial stone landscapes and in many states that has not been the case. In Rhode Island the currently retired state archaeologist is supportive of that practice. There are still people who are comfortable on the fence with regard to this issue. I think the tribes simply have to step up and step to people and say “this is what is ancient to us and this is what a federally recognized Indian tribes we want you to do as federal agency who have a trust responsibility to the federally recognized Indian tribes.”

Barbara: Steve I have another question for you. It’s interesting and I believe it or not I do understand why these . . .a lot of your projects don’t come to the point of nomination, that they end in consensus, but even ending in a consensus determination under what guidance from the National Register are you using? Are you using the National Register bulletins? Have you developed some of your own guidance, some of your own protocols? Tell me what kind of guides you process through some of these?

Steve: Basically, it was our own internal protocols, which I’ve got written down. Some principals that I’ve learned over the years. A lot of it is informed by conversations with Valerie Hauser  at the Advisory Council when I worked there, which was that we should as cultural resource professionals listen to the tribes, and if what I call tribal recognized elder, not just a member of the tribe but somebody with standing within the tribe says this is a site that’s important to us then we listen and my agency has incorporated that in its general policies with regard to Section 106 in tribal engagement.

With the Upton Chamber, I would have liked to have done a little bit more work and been able to use some guidance from the National Register program and the various bulletins especially the one on Traditional Cultural Properties, but without the cooperation of the SHPO it just seemed like it was going to be too long of a process and we did it the way we did, which was basically an agreement with the SHPO was involved and knew what was going on about the work did was directly with the tribes and our agency.

It would have been nice to have better guidance. I would have felt more comfortable because that’s how I’ve grown through my career, but it wasn’t going to work in this case.

Nancy Brown: Nancy Brown here from the Advisory Council. I was just going to say that I’ll be talking about some examples later on to where there was no formal eligibility determination or nomination as a way of moving forward in a timely manner where there was not enough information to make a formal determination. It’s happening in a lot of agencies I think.

Jennifer Hirsch: Steve I was wondering what your experience has been with projects concerning our National Historic Trails, like the Santa Fe Trail, the Oregon and California Trails, Lewis and Clark Trails.

Steve: My licensees have had the adverse effects to in particular the Santa Fe Trail. I’m not aware of any to the Oregon Trail. We’ve had, one of the things that’s a challenge for my agency is that if the trails are there but they’re not historic properties or safe byways and heritage areas are there but they’re not historic properties in their own right, but are composed as some individual historic properties, then our nationwide programmatic agreement with the Advisory Council and the NCSHPO means that we don’t have to consider those. I think one of the thinks that I’d ask the folks that manage those kinds of areas is to look at your documentation and your legislation to go about if you’re interesting in trying to protect those.  Or work with the power companies to do it in the way that helps us through our regulations.

Jennifer: Given that the view shed issues are not a concern for you and that you don’t work…

Steve: I didn’t say … the view shed issues are a concern, but if there is a trail nearby somebody needs to show me how our composed towers have an adverse effect on an historic property. The same think applies with the Park Service land. I had an example which I’ve shared with senior management of the Park Service where a park was about a tower proposed for several miles away from the park. And they made the licensee and their consultants go down the Delaware River in the middle of the night, seven and a half miles to see if they could see a lantern on the a top of a crane where the tower was going to be. That’s a little excessive, but these things are being done through the Park Service’s Organic Act and we need to have further discussions about how that actually is going to work or not work. So we want to be responsive, but things needs to be historic properties in order for us to deal with in the Section 106 process.

Jennifer: I guess my question involved these National Historic Trails where you have the designation of the trail, but you don’t have an actual listing for all portions of the trail.

Steve: Right.

Jennifer: A lot of those are now subject to survey and we’re slowly getting multiple property documentation that’s coming in to identify intact segments. It’s always been my understanding that Section 106 considers adverse impacts that are within the project area of a registered property or one recognized as significant. It’s always been my feeling in dealing with cultural landscapes that those things that happen outside of the boundaries are as important to consider as the things that are inside the boundaries.

Steve: I don’t disagree with that but the thing I have to get back is that our nationwide program action agreement that governs our rules for tower sighting from Section 106, we were specifically exempted from having to do additional survey work. When a tower is proposed and there is a scenic trail, scenic byway, Route 66, Oregon Trail whatever they are if that segment is within the area of potentially affect the APE hasn’t already been determined to be an historic property then our licensees are not required to consider the effect of that proposed tower project on that scenic byway or whatever.

Nancy: I thought you said that before and I was a little bit surprised to hear that. For anybody out there, is this a typical clause in other programmatic agreements?

Jeff ?: No it’s not, this is Jeff.  You really have a unique situation with the FCC nationwide programmatic agreement in that it gives them a lot more latitude in what they’re able to do, but I think the good news is that FCC has tried to work, the tribal example is very important to point out, has tried to work with people who are concerned about affects to cultural landscapes they’ve tried to work with them on that outside of the 106 process.

Steve: We’ll continue to do that but you need to recognize that my agency, I hate to keep coming back to this, we’re a lawyers agency and every time I go to a meeting I have my little posse of lawyers and when I meet with our licensees they have an even bigger posse of lawyers. The lawyers who work on communication issues have their own Bar Association.

Jeff: I was going to point out for those of you who are not familiar with the law suit that was brought against the Advisory Council on Historic Preservation in the early part of this century, one of the litigants was the cell tower industry and they were successful in bringing about changes that resulted in the 2004 Section 106 regulation. They’re pretty influential.

Valerie Hauser: This is Valerie, Barbara I was going to add and ask Steve, the exemption from having to identify historic property doesn’t apply to properties of religious and cultural significance to tribes and native Hawaiians, correct?

Steve: That is correct.

Valerie: That’s how, that’s partly how landscapes, well landscapes significant to tribes and native Hawaiians are being identified.

Barbara: Thank you so much for that clarification.

Jeff: Thanks Val.

Valerie: That caveat in the nationwide PA was because of the recognition that those kinds of places are typically not as Steve’s been saying; typically not listed on the National Register or formally determined eligible. There just isn’t enough information about those kinds of places.  There couldn’t be a previous assumption that some level of identification of those kinds of places had been previously made.

Barbara: That’s excellent. Whoever made sure that clause got in there, tip the hat to you.

Valerie: That was the United South and Eastern Tribes, the organization Doug mentioned.

Barbara: Well everybody else take note that this is why it’s important for us to continue to update nominations and get landscape considerations in there. If you’re anywhere in the vicinity in the shadow of an FCC project.

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