James Delgado: Good afternoon everyone. It was once observed by Abraham Lincoln that in law it is a good policy to never plead what you need not, lest you oblige yourself to prove what you cannot.Today I think, we will see the law applied wisely and sagely by our panel as we debate, perhaps consider, and probe at a number of the questions that have arisen about the legal considerations surrounding maritime cultural landscapes. We have quite the distinguished panel.

I’ll start with Caroline Blanco. Caroline is an Assistant General Counsel for the Environment at the National Science Foundation where she provides advice on environmental and cultural resource laws that are implicated by the foundation’s mission in promoting cutting edge science and technology. Prior to assuming her current position, she served as a trial attorney in the Natural Resources Section of the Environment and National Resources Division of the US Department of Justice where from 1991 until 2007 she specialized in public lands law, heritage resources law, and in particular historic shipwreck litigation.

Ms. Blanco, twice a recipient of the Attorney General’s Award for Distinguished Service, frequently lectures in the field of heritage resources law at law schools and government training seminars throughout the country. In addition, she has co-authored several books and articles on cultural property law and serves as an adjunct faculty member of American University’s Washington College of Law, where she teaches a course on cultural property law.Prior to a government service, Ms. Blanco was a litigation associate at the famous law firm of McCutchen, Doyle, Brown, & Enersen, San Jose, California.

Chip Brown is the government assistance and training specialist in the Wisconsin office of the state historic preservation office. He’s worked for the Wisconsin historical society for over 20 years. Chip is an attorney, licensed to practice law in the state of Wisconsin and the federal district court for the 7th circuit. Chip completed his undergraduate work in anthropology, specializing in archaeology, focusing on non-human faunal remains. He conducted field work in Somalia, Africa.

Chip has provided lectures, workshops and other training programs of federal and state historic preservation and human burial site preservation laws and processes. He developed the Washington NHPA section 106 and state agency local unit of government submittal and review processes to streamline project reviews applicable to federal and state agency and local unit of government actions in Wisconsin.

Chip also coordinated the restructuring of the state burial preservation program. Chip conducts federal and state historic preservation and human burial disturbance regulatory review and negotiates and drafts programmatic agreements between with the SHPO and federal and state agencies. He was a member of the team that drafted the first NRCS nationwide PA, he works with the Wisconsin Department of Justice on historic preservation and human burial law related matters that require formal adjudication and other formal resolutions.

Paul Loether  is the chief of NPS National Register, National Historic Landmark Program and deputy keeper of the National Register. The formal SHPO of Connecticut and here Harper said, “he’ll have to fill in the rest.”

Jessica Perkins grew up in rural Rhode Island and obtained her BA in Sociology with honors from the University of New Hampshire. She just received her Juris Doctorate with a certificate in natural resources and environmental law with a specific focus on American Indian law from Louis and Clark law school. After law school, Jess worked eleven years at the Tlingit tribe of Alaska, serving as realty officer, resources protection director and tribal attorney. During this time, Jess spent many hours researching and pursuing Tlingit land claims through the Sitka area, she married the son of a Tlingit clan leader and became a member of the Kiksadi clan.

After short stint away from Sitka, Jess recently returned to work at Sitka National Historical Park which was created to commemorate two important pieces of Sitka’s history, the 1804 Tlingit Russian battle ground and the 1843 Russian Bishop’s house.

Dave Thulman received his JD from George Washington University and his PhD in anthropology from Florida State University. He’s been an attorney for the Florida environmental agency for over 30 years, focusing on, among other things, natural resource protection and damage assessment. He also works as an archaeologist excavating prehistoric underwater sites in Florida and teaches at George Washington University.

 

Ole Varmer is an attorney in the international section of NOAA’s office of general council, Ole is no stranger to people who know historic ship wreckage and litigation having been involved in a variety of cases. Including, notably, RMS Titanic, but a variety of other cases. Winner of far too many awards to list back at NOAA for his diligence and his work, Ole is perhaps best known for his lead guitar and excellent licks. Also, I should say, lead singer, for the band Three Drink Minimum.

Ladies and gentlemen, your panel.

 

Esteemed panel members, I think the best way to pursue this is to have a brief statement from each of you. I think each and every one of you has considered what’s been said over the past couple of days, has some specific thoughts and I think that as you start with your brief introductory statements, you will certainly inspire response from each other. Ole, I’m going to start with you.

Ole Varmer: Okay. First of all, I’m really thankful for the invitation, this has been very interesting already. I knew a little bit about maritime cultural landscapes  because of Jim. I’ve learned a lot. I really appreciate a lot of the presentations, but I really want to call out Tricia from Hawaii, because she did what you all should do. My short message on maritime cultural landscapes is just do it. That’s the way to do it. That’s the model she presented, I thought it was thrilling and inspirational.

The first time I came up with this approach, was working on the nomination for Papahānaumokuākea for the World Heritage. We were putting it in, actually, I should say the state of Hawaii. They wanted it as a mix site, both natural and cultural, I may not know anything about the World Heritage process, but I was seeing a technical advisor for natural, I come on as a technical advisor for the cultural. We put in our nomination lead by the state. IUCN came back and said, this is fantastic, it meets every criteria that you have suggested, this is a hallmark, this is a world record, you don’t really need to do anything else.

On the cultural side, this is kind of weak, we’re having trouble, you really should consider the landscape approach. Immediately started Googling what the landscape approach was. I’d never heard of it, didn’t know it, I learned about … I was happy to hear that it started with a Swede, Scandinavia, and we learned a lot about it. We revised the application and we were successful. One of the key things, that made it a success, frankly the shipwrecks wouldn’t meet the criteria, and we had some terrestrial sites, but what we did in the cultural section, is explain that to the native Hawaiian people, the coral is the beginning of life, it is where life comes from. When you die, it is where you go back. Protecting the coral, is not just protecting natural heritage, it’s protecting the cultural heritage.

We explained how now they’re starting these practices of thousands of years and going out. Now, it’s a living cultural site and getting them to realize it was really the cultural heritage at Papahānaumokuākea, it was the coral. They agreed and it was the first site in the US, at the world heritage, they have a natural site, a cultural site, a much smaller list where there’s a few places that meet natural and cultural, and it’s the only US site on the National Register on that spreadsheet.

I have other points I want to bring up, but I don’t want to take up all the time. I wanted to tell that little story first and thank Tricia.

James Delgado: In the best tradition of Ole’s band, does anybody want to play their own solo, or riff?

Paul Loether: I’ll give it a shot. First of all, I want to remind everybody, with respect to the National Register, that there was a lot of discussion, or some discussion this session about contributing and not contributing to the list. Contributing and not contributing really derived out of the tax-credit program. Everything within the boundary of the National Register property is technically listed in the Register. That’s beneficial for a number of reasons.

Number 1: Section 106, if you’re doing it as an NSHPO, you can review anything. It’s not just what’s in the nomination. Number 2: it affords the ability to consider features which are not specifically enumerated in that contributing list. I would strongly recommend that when you approach reviewing National Register nominations, particularly ones that are already done, start with Section 8, don’t start with the list. The list is not unimportant, but Section 8 sets the stage for what’s significant.

If you’re dealing with cultural landscapes, say in a district format. You’ll pick up the significance of those landscape features if those nominations are well-written. You’ll pick them up right at the beginning. I think that’s critical when you’re getting into resource management. The third thing is the National Register is not the end. It’s one tool in the toolbox and we need to make sure our constituents continue to understand that.

As most of you know,  Section 106 is not a guaranteed result, it’s processed and people forget that. Traditional cultural properties are often looked at as a magic bullet. They’re not. It’s not to denigrate the value in any of this, it just has limitations. Those limitations apply not only in the practitioner aspects, but also the legal aspects.

James Delgado: David?

Dave Thulman: I have a few observations, so I am not a federal government attorney, so I can’t lose my job, I guess, depending on what I say. I was invited by Mike Russo, and just like Kent Sassman, I said, yeah, this sounds great. What’s an MCL? I’ve learned a lot in the readings beforehand and certainly a lot listening to what’s been said today. I have three general observations going forward.

I am an agency attorney for a long time. I understand the need to interpret statutes and make them usable on the ground. I come to this with sort of a, “how are these going to be managed?” It wasn’t until Susan Dolan’s talk about an hour ago, that I finally saw, ah, I can see now how you can get beyond the artifact and manage the landscape. That’s the first time I’ve heard that and it was absolutely unclear to me, beforehand, how that might be.

It does seem to me, this notion of MCL is very valuable for research context. Archaeological research, framing historical research, it’s unclear to me how it’s helpful in a management setting. By that I mean, I’m unclear as to how the tools that are available right now, wouldn’t do the job that needs to be done without overlaying this other level of complexity on the issue.

I talked to Mike Russo a little bit last night about it. It does seem like there are a couple of situations having to do with salvage where this notion of MCL would be helpful and would fill a gap. It might be that it’s use should be limited to that purpose, just so it doesn’t overlay this extra complexity. I would guess, if we were all asked to pull out a piece of paper and right down what is an MCL in a paragraph or less, there wouldn’t be a consensus about what that is. To me, as an outsider, I’d say the concept definitely needs boundaries and definitions, so it becomes useful to both the managers and people who want to get properties listed.

Second observation I’d make has to do with shipwrecks. I’m an underwater archaeologist, I have hundreds of hours excavating. Twelve minutes of those are bottom time on a ship, so it’s all prehistoric in Florida, by and large. It does seem like there is a definite bias in favor of shipwrecks and historical resources. I’m not sure why that is. I know that there’s not a lot of prehistoric developments out there. I have met two recovering environmental lawyers that are now archaeologists, besides myself, that’s three that I know.

I thought I was alone in that. To me, and this is not going to make a lot of people happy, I don’t think. I conceptualize that a shipwreck is basically a complicated isolated artifact out of context. Much like, a projectile point. I’m interested in the time period of about 11,000 to 14,000 pre-contact. If I were snorkeling and surveying off Cape Hatterus and I came across a projectile point, lying on the sand, say it’s right next to a shipwreck. I would do everything that a shipwreck archaeologist would do at that point.

I would measure it stem to stern, I would take the beam, I would see how much tonnage it is, that’s as far as I can get on the metaphors there. I take the width, I’d figure out how it was made, where the material came from, what it’s use life was, how it changed through its use. I’d put it in a temporal context, I’d put it in a typology, I’d determine how it’s different from other members of its class. I create a story about who made it and where it came from and what its use life was, only thing I’m missing is a name for that person.

It may have been dropped from a boat, it may have been dropped in a context in which the land was dry, but if I were to nominate that projectile point for the Register I think I’d get immediately trashed. If I were to nominate historic shipwrecks, which is an isolated out of context artifact, it would at least come under consideration, it seems to me.

The last point I’d make is this, is that as an environmental agency lawyer, and now an archaeologist, although both these groups have resource management in their name. They definitely see the same world in different ways. Environmental managers are interested in protecting the underwater environments, especially in wetlands and submerged situations. Archaeologists are interested in the archaeology of it, at least under the state of Florida law, and I think, under federal law, when those two come in conflict, the environmental laws always trump. The notion of preservation of a submerged cultural resource gets sort of turned on its head.

Really, what you’re doing, since you’re not going to put preservatives on the shipwreck and you’re not going to chip off the coral, that you’re really managing the destruction of it. Although there’s been talk that there ought to be continuity between the land and the sea, the actual management of these resources is going to be very difficult, that’s all I’ll say. It’s a long winded way of saying I’m done.

Caroline Blanco: I guess I’ll go. I come from the same school of thought as Ole which is just do it. It strikes me that there’s … I was pouring over some of the legislation over the last day or two trying to figure out what is the problem? Isn’t it all here? I think it is. I think it’s easily defensible if it meets the criteria and everything else that you need for a natural register nomination.

Water is not a distinction, whether it’s below water or above water. If you look through all of the bulletins you’ll see numerous references to things being under water or in water, a ship wreck is given as an example. I think we’re getting into some trouble with words. One of things that strikes me as particularly interesting, I’ve heard some of the presentations today where they talked about land and land is problematic.

I don’t see that as a problem, because submerged lands acts exist. Just because something is underwater it doesn’t make it not land, it’s still land. Maybe we need to think a little bit broader about things. It’s always been, since I started in justice in ’91, I remember there was always this concern about if it’s on land people understand it, if it’s under water people don’t understand that it’s something to protect. I’ve seen a tremendous amount of progress over the decades to see that that’s changed in terms of awareness quite a bit.

I would say definitely just go for it. The regulations are there to support you. There’s no reason to make a distinction just because something is underwater or that there’s a relationship to it. If there is a landscape, whether that means submerged land or a combination of terrestrial and underwater land, I think that the law is there to support it. Another thing I heard is that boundaries are an issue.

If you look some of the bulletins, it says boundaries are an issue regardless if its underwater, it doesn’t say regardless of underwater, but it talks about on land that it’s an issue. I think what you just have to do is take a look. What is the connection? Why is it significant? Use the regulations to support that.

One example I was thinking about is that if I … I now am at the National Science Foundation and if I were to advise my clients about how to do Section 106, if there was what we’ve been kind of talking about as a maritime cultural landscape, and I’d say maritime is a subset of cultural in a sense.

With the words, we’re making it more difficult on ourselves. If there is something to be said about a cultural landscape, within in an area it potentially affects, I would say it doesn’t matter if it’s underwater in part or in whole, it’s still a cultural landscape. You need to do Section 106 and if you don’t then you’re violating the law. Think about it from another way, would you have to do Section 106 on it? Just my thoughts.

Chip Brown: Being an attorney here from Wisconsin, in the office of the SHPO we have been talking about what our numbering sanctuary means to us. How are we going to enforce anything that comes down in the management plan et cetera. A lot of the questions that I’ve actually heard from folks and posed through talks the past couple of days … I’d like to back up a moment and say thank you very much, I’m honored to be here. This group of people is incredible, this is something that I think does not happen very often, I think this is a very important gathering, so again, I’m honored to be part of this, so thanks.

Over the last couple of days listening and being amazed by the stories that people have been telling across the board, I find myself thinking that I’m a little fearful being an attorney working in the office of the SHPO, that people are looking to us to answer the questions of how to preserve and how do we protect and we’ve got all this great stuff out here that we’re sharing with you, but we don’t know what do about it. You guys are now going to do that.

I almost wore my attorney hat and coat when I came up here to say, okay, I’ll answer those questions. Really, I think like many of you, we’re kind of moving forward as you are and looking at the complexity of what things mean in terms of what is the preservation and protection. In Wisconsin, we’ve certainly got Section 106, we’ve got the federal law that we can use, thankfully we don’t have any international boundaries so we don’t have to deal with any of those issues. Not even at lake Superior, we border Minnesota and Michigan, it comes to a point up there, no Canadian borders, so we’re good.

We have many, many state and local laws, local ordinances, we have human burial sites preservation law. All of these laws are in competition with each other. Sometimes they cancel each other out, sometimes they don’t. With the respect to the marine sanctuary that we have, the Wisconsin/Michigan sanctuary, it’s not entirely clear to me how these laws are going to play out. Whether or not 106 will apply in every case, we don’t have the plan together. We still have public comment to take. We still have to put in place what the regulations are going to be that pertain to this sanctuary. All of these things are kind of juggled up in the air.

We’re looking at how that’s going to pan out, we’ll see over the next couple of months. I would say that we are excited by the process, I think we’re what, the 15th sanctuary? I think there is an incredible opportunity here to see what this does mean from the historic preservation perspective. There are landscape opportunities, things that we don’t necessarily consider when we’re looking at the typical work that we see. You know, we’ll look at 1500 projects in a given year, thousands of pieces of correspondence in regard to all of this, but this is something special.

I think it’s something that has application for us as we move forward, numerous maritime resources in the state, thousands of miles of coastline, whether it’s riveting, the great lakes, smaller lakes, Minnesota is the land of a thousand lakes, we’ve got a few thousand lakes over here, but we don’t brag about that. We have that. We are a maritime, marine state. There is no getting around that. We certainly do need to look at what that has meant for the last 15,000 years. We have 11 federally recognized tribes here in the state of Wisconsin all of whom, in my mind, have excellent relationships with the SHPO which is a tremendous thing, because those folks will be involved with what happens with this marine sanctuary.

What happens every day with the work that we do with the office of the SHPO, so we’re looking forward, again, to solving whatever issues come up. I’m looking forward, today, to hearing what you have to ask us. Here we’ve got 6 attorneys up here and each of us all have a different idea as how to answer the questions you ask. I think it’s an exciting time, so again, thank you.

Jessica Perkins: I guess I’m last. I have lots and lots of thoughts, but I’m going to keep them really small for you guys. I feel like, you know, it’s hard for me to see, you know, I hear people going on about applications, I hear people talking about research and management. It’s all about a place and a land and a piece, you know, site based, you get the categories and the property types. I think about that and the maritime cultural landscape on paper, the words, like everyone says, it means something different to everybody. It sounds like a really great idea for a conservation and a bigger approach to things.

As we’re all kind of talking through, NHPA already has these very specific things. I still, I sound like a broken record, or I feel like a broken record, it still feels like a bad fit. I think about Alaskan tribes and I think about the way Congress decided to work with them and create Native corporations and that we don’t we don’t have reservations yet, an NHPA talks about tribal land as only being within a reservation, or a dependent Indian community.

If you have 25% of your population as native, is that really a dependent native community? I feel like the MCL stuff, to me, still you know, we’re still within the National Register, we’re still within NHPA, it still poses, in my mind, the same challenges that we had before we walked in the room.

James  Delgado: Ole.

Ole Varmer: To try and build on what’s being said here, and how I advise my program, the sanctuary program. I guess I’m being taped, so we’ll talk in general terms because I’m actually not the sanctuary, I deal with international now. The way I see the marine cultural claim playing out, and to a certain extent, I think the Florida Keys plan that we did, we didn’t really use those terms, but we did when I was talking about Tricia. We try to layer back.

Here’s this natural environment, and here’s how it’s been impacted by humans over time. From prehistoric times, we may find some resources here. We’ll identify, we have these 110 responsibilities, we identified the ship wrecks we thought were in the sanctuary based on literature and frankly the Florida archives and some MS data. This is where, I think, MCL comes in. In NHPA 110 responsibilities, what you’re trying to do is, show how everything is connected. Show how in this space that we’re going to have management alternatives, we need some baseline information about the natural, the cultural, and explain how the natural may be cultural to some of the people who live in this area that will be impacted.

It shouldn’t just be in a context of the National Register. This should be in the context of the National Environmental Policy Act. This is the kind of thing that I think when they enacted NEPA, they were hoping we would be doing. What’s your environment and how’s it going to be affected by your plan? Remember, humans are part of the environment, you know? You need to think about the prehistoric times, the history, and current, and current practices. Come up with management alternatives that are sensitive where you consult.

How can you do that if you don’t … The maritime cultural landscape is to me, frankly, reorganizing the information we’ve been talking about in a way that shows better connections. I like, I think Val did it first, and others talked about it. We’ve gone form in the natural, we’ve gone from species management to now, we want to do ecosystem management. This is very similar to that. What Christian brought in, the watershed management.

Frankly, you’ve got a watershed and you’ve got people, you know where the sites are going to be. Or, you at least have a predictability model. That can be so important and explaining it in that way will be helpful. When you get into the 106 situation, you have a better handle on who you should be consulting. If you were lucky, maybe they even gave you some information that you can put in your GIS and have it up front, but if not, at least you who you’re going to need to consult with and what you might be up against.

That’s how … It can be all the way up from the mountains, and all the way out to that part of the shelf that once was the coastline, where there’s coastline and there’s people there’s going to be some evidence of remnants there at some point. I think … Maybe it is big, but you can use that as your plan for complying with 110 and saying, okay, this is what we’ve got to manage and you know, this is what we know about. Maybe we should list this site on the Register. Maybe you have a collection that can be a district and maybe even have a big district, but I don’t think you have to redo anything at the Register in order to accomplish those objectives that you want to do now.

Dave Thulman: It’s an interesting point, just to throw something into the mix, as a policy person for the national system, the way I’ve been looking at this is not necessarily that we need to come up with National Register nominations for maritime cultural landscapes that cover the boundary of every national sanctuary. Rather, strikes me more that it’s a theoretical construct that has tremendous applicability to process. That process is at its simplest, consultation and connectivity.

Taking a view that is non-hierarchical, which is an interesting point given that we’ve talked about levels of significance, what I like about the maritime cultural landscapes  is that it lays it out, but it doesn’t impose, though there are layers there, it doesn’t actually, in its own way, impose. Traditional names passed on from the ancestors, and the ancient times are there. The names of the colonizers are there. We can all assign our value judgment to that, but the simple fact is that nothing is, in this approach, ideally is not erased. It’s there. That respect is given to in particular voices that have previously not been heard.

I grew up in an area that, you know, you had a later name applied. In my museum in Vancouver, I was very clear, I was in the traditional lands of the Swalita as well as their Musqueam cousins at Chunak on the shores of something called, which had previously been El Canal de Rosario, because different folks had come through and placed their names on it.

Landscape approach laid it all out. In that approach, also, it was pretty clear who had been there first, and how other things had come along. I like what I see with MCL’s, my concerns or issues as a policy person legally are making sure that I can use these constructs in some cases, frankly, to ensure that my own agency and my own people do right and don’t overlook resources that hitherto perhaps have not been seen in the way they should be seen if you apply the MCL construct. As well, whatever I do to protect that is enforceable under the law.

Speaker 2: I think you raised a point about level of significance, we like to think that there’s levels of significance, but there’s also layers. The layers are not necessarily levels. When I showed the stuff about whether it’s Nantucket the islands, there are at least two cultural landscapes there. There’s the indigenous landscapes where the tribes that are there as native people look at it. They don’t look at the wonderful houses and the docks and the piers, all the recreational stuff, they grew up there. For which, it is also significant. They don’t look at it the same way.

They don’t deny the existence of it, they simply look through that layer to another layer. Same is true with the recent decision we made on the Jamestown, and the James River. There is, well we didn’t go into it in detail, I’m persuaded from the information I’ve seen, there’s clearly an Indigenous Cultural Landscape, maritime, but there’s also a post-contact level of layer of significance from a maritime cultural landscape, Smith Island, all those, Holland island, which is no longer an island, it’s gone.

Those kinds of things, we need to understand that the complexity is multi-layered, that you’re right, we cannot afford to leave out anybody.

 

John Jenson: I was really interested I think it was David’s initial comment on the science or natural resources people think this way, cultural resources people think that way, and that’s true enough to an extent. Here we are in a place talking about maritime coastal landscape, cultural landscapes, one of the things that’s driving this is the fact that climate change, economic development, there’s a whole host of things that are forcing us to think more critically about what’s going on in this coastal zone from land to the end of the continental shelf.

Which suggests that we’re looking for new answers and it’s a new generation. One of the things as leaders that we can do is think about the fact that this bending off hasn’t worked particularly well, or doesn’t work particularly well now. One of the elements with cultural landscape is it fits into the word landscape. There’s a whole set of initiatives and I’m not as up on them as I should be, on developing ecological landscape approaches with NOAA and other places of the federal government.

By thinking of cultural landscapes in these terms, we can, again, start to build the language, but also try to break down these bins between artificially distinctive categories at a time when, again, the pressure is there for us to create. We create new solutions when we are faced with problems or opportunities and we’re in that spot right now. I think we really need to do that. Thinking about how we can move forward, recognizing these connections between natural and cultural and recognizing there’s other stuff that’s going on with the government.We can’t afford to put this all in historic preservation terms. A lot of leaders here, and that is something that can come out of this.

Speaker 3: Thank you for the comment on the shipwreck bias. I’m trained in maritime archeology and shipwreck archaeology and I agree 100%. I love these pictures, I don’t think I’ve seen a single non-ship picture yet. Scrolling past us, but I come from a state that is dedicated to showing us that there is so much more. The term that you used, that we’re managing the destruction, brilliant. You know, when we took on the annex as kind of a best management practice, of course, now it’s finding the UNESCO convention itself, we agreed to in situ preservation and then had to scratch our heads and think what does that really mean?

I think, what in situ preservation has come to mean is that we’re just trying to minimize intentional damage as the stuff falls apart anyway. Everything is going to fall apart. That raises just a naïve question from me, and I ask a lot of naïve questions so my apologies. What is the implication of the definitions of damage to properties for ship wrecks that are taken on by an agency with the intention to protect these things?

Federal agencies, which tend to say they’re going to do that in perpetuity, you know, “we’re just trying to prevent anchor damage, and looting,” but if we nominate these sites, or if they’re eligible, and they’re within our boundaries, and they’re obviously important to us, when you say that the neglect of a property is a type e of damage, there’s no way that we’re going to be out there and be proactive and do real in situ preservation meaning geo-textiles or on-site storage for the 10s and hundreds of shipwrecks that we’re taking on. What’s the real implication there of damage through neglect?

Speaker 2: I would say my answer to that would be there’s proactive neglect in a sense, where you’re just not going to do anything, and the rest is, you’re right; it’s trying to arrest the rate of deterioration at its best. You can do some, with some resources, certainly, if you pay attention to them, you can do a measure of restorative work, of course, restorative work itself is sometimes not historical anymore. I’m thinking something of the constitution, over time it’s gotten historical repairs and less historical repairs, but the ship is still there, how much of its original fabric?

I don’t know, under 15%. You’re right, the nature of preservation is, you’re right, the things that we make fall apart eventually. The intention is to arrest that process to a degree that is possible and certainly prevent it from proactive neglect, where you’re not trying to do anything to not only arrest it, but also to stop the active damage that could be prevented. You’re right, that’s the nature of our business. We can’t save everything, at the end of the day, we probably can’t save anything forever, bit nonetheless we try.

Speaker 3: Having said that, I think, again, embracing this concept as a theoretical, moving into management, I don’t think we can apply even benign neglect when it comes to engaging with people and hearing voices that speak to important aspects like bio-cultural resources. That bring to the forefront things that, you know, perhaps do require more than just sitting there. In terms of active consultation and understanding, things like the work that’s been done to understand tribal perspectives and indigenous perspectives in the landscape.

Having that voice and that perspective there and a respected, sovereign voice at that. That makes me think that I’m actually doing my job and upholding the law by embracing that as a management concept and carry it forward.

Chip Brown: I would say from Wisconsin, here, where I am, we … There is an analogy there are, as many of you know, or all of you know, huge mound complexes here, effigy mounds, other mounds, pretty unique to the upper-Midwest. Processes are in place through which those mounds are eroding, they are being diminished in size, natural processes, and when we speak to the Ho-Chunk people, Potawatomi, Menominee, folks who have established connection through these mounds and these kinds of sites.

The issue, it seems to me, always is one of we don’t impede the natural process. You look at a shipwreck or something else that has gone down, what are we trying to do? Do we want to pull these out of the water and go through all of the scientific necessities to preserve these forever? There might be one or two, because if they’re extraordinary significance that we might try to slow down the processes through which they are decaying.

In my mind, the work that we do is to not accelerate the process, not allow that acceleration to happen by virtue of ignorance or people booing things to contribute to the destruction of science. It’s to ensure, perhaps, the natural processes themselves are able to continue unimpeded in the way they should. I think there is something to be said for that.

Dave Thulman: I have something to add to that. I think that if you think about a historic property above the ground, they repaint it all the time, they pull the binds off, the mow the grass, they trim it up, they want to preserve it in a particular place in time. It’s a cultural artifact within a biological setting.

When you’re talking about a shipwreck or some other cultural property under water, you’re really talking about a bio-cultural artifact, it’s a melding of biology and culture which you cannot really separate. That’s just going to lead to this eventual destruction. It’s a totally different entity than historical property that’s above the water. In that context, you’re constantly fighting termites and other biotic agents that are aimed at destruction.

Once you get below the surface, it’s an entirely different story.

Speaker 3: On that point though, I think, again, coming from the NOAA perspective, and also having heard people. For me, a bio-cultural resource is also Heron, it’s Orca, it’s the white shark.

Speaker 2: Away from the maritime setting, it’s cattle and cowboys on the green river drive.

Speaker 4: This meeting is a fascinating discussion. I know that someday Keith Richards is going to die.

Ole Varmer: I don’t think so, I think he made a deal with the devil.

Speaker 4: It could be. The painting of him looks really young.

Ole Varmer: Everybody else is just catching up is what’s happening.

Speaker 4: I could be wrong, he could be around much longer, but he exists in virtual form. We have recordings and Rolling Stones will live forever, I hope. I’m an archaeologist and when we do mitigative action, we’re creatively destroying it.

When we mitigate a site, get it out of the way of a development project, or something like that, we’re converting it from a material resource into an information source. We certainly curate the artifacts, we have dilemmas as to what gets curated, what doesn’t, what can we deaccession, how much fire-cracked rock can we keep laying around.

My point is, Shana-lee Dotty did a nice piece a while back, very controversial, that archaeologists ought to be getting out of the heritage business and thinking about futures and the process of ruination is critical here. Ruination, allowing processes to unfold as they would had humans not intervened is a essential to accepting that change is a part of the world before you.

Trying to stop the world, or trying to prevent things from evolving into other states, becoming in fact, disintegrating into nothingness or whatever, existing only in a virtual form is part of our ability as people to see that there will be a future that’s different than the present. I know that’s the basis of capitalism, that every future is different than every past, and that’s a problem itself, but I think this cuts a real theoretical issue as to why we do what we do, historical, archaeological, preservation wise, I think I don’t have an answer here, I’m just throwing it out, I think this is a really, really critical, interesting question.

Again, I would come back to the point that we’re doing it for futures. Not to stop the past and the present, but to move forward. I don’t think that it’s worth our effort, time money, to dump a whole bunch of resource into stopping time.

Dave Thulman: To that end, though, too, I mean, if we are working with traditional cultures and indigenous people are we not then working towards the future in the right way? Infusing what we do with traditional knowledge and respect for those traditions.

Speaker 4: The same point you made about the shipwrecks, when we worked with the assembly of the traditional tribe, they were perfectly fine with those barrels washing into the Gulf of Mexico as long as humans didn’t intervene in that process. That’s what we had to do in order to get the work done. They don’t see that as disappearing, they just see it as being transformed.

Chris McMasters: It’s Chris McMasters with Battlefield, feeling a little lonely, because we actually do thing of perpetuity and we do think of long term preservation. That might be why Barbara put me in that session. We have tools for long term preservation and with our grants we talked about today, are looking at perpetual care and encouragement.

We have another grant I didn’t talk too much about, which is the Battlefield land Acquisitions grants, which purchases or puts easements on battlefields. The idea is to freeze frame them. The idea is to freeze them in place and to find stewards that will keep them for as long as possible. We’re almost fighting benign neglect. We set up a mechanism that’s even higher than 106, it’s based in the land and water conservation act.

If someone wants to do a 106 they really can’t without the approval of the secretary of the interior. Once we buy that, it’s sort of like a land trust. It would be kind of nice to hear more about the possibility of land trust activities in an underwater session, in an underwater sort of way. Is there anybody out there who might think of that as an option for more permanent care? Is there groups out there who would even think along those lines of holding land in that way like the archaeology conservatory does?

James Delgado: I think, one of the inherent issues with that is that most people who care about the oceans care about the oceans as an entity and about that which lives in it. Issues like the acidification and sea level rise and warming. What I like about this concept and what I think, frankly, I think my bosses like about this concept is that it reintroduces something in western culture we often set aside which is the human element.

We can be too scientific or we can be too legalistic, and we forget those ties, those powerful ties which our ancestors certainly had and which certain cultures still do have. Is the issue really trying to create a boundary, be it a natural register district or a park or a sanctuary, or is it to embrace that which is out there. Which is neither cultural nor natural, but both. I’m just tossing that out.

Of course, I’m always happy to see areas of the ocean set aside and I think we have legal mechanisms to do that. In terms of purchasing them, though, in terms of trusts, that would be tough, in other than shipwrecks and I’d like to see us try to steer away a little from ship wrecks and get back to the bigger issue. Any thoughts or comments on that? There was a question in the back, Sam.

Speaker 2: There are more resources than ship wrecks. Doug was talking about it before, you know, when you start to bring out what do you find under the surface that you can find about human habitation? They indicate when they dropped 3/4 and 32 miles, they didn’t find anything except eco facts which corroborated all of the oral traditions of the tribes were talking about inhabiting horseshoe shoals, which of course, before the inundation would have still been a mound, it’s only about 12 feet deep out there.

That’s, I think, for me, I love ships, you know this. The bottom line is, there’s probably a whole lot more. I also know for example, if the sea bed is anything like New England and everywhere else, the soils are so acidic that not a whole lot survives, in terms of natural materials other than stone. Then you’ve got an inundation and add 6, 7 thousand years, it’s probably harder to find.

The persuasive argument I got from the Wampanoag’s was, “you know, we used to live out there. The water came up, so we moved back, and this is how far we’ve come so far.” There’s a lot to be said to that, especially on the shelf. It may be different when you’re in areas which were never … Pre-inundation. I think we’re taking a strong look at that as we talk, particularly, indigenous people about their heritage and what they know in their oral traditions and their kin, whether it’s tribal or native Hawaiians about what it was like 6000, 7000 years ago.

We’re trying to really look at that much more broadly as we look at it. We do deal with stuff, even if it’s stuff that’s belief driven. That’s a limitation on our part, but there’s a whole lot more potential out there than just ship wrecks. Love them though I do.

James Delgado: It comes back to a certain question, for you lawyers. As an agency manager, trained as an archaeologist, do I absolutely have to have empirical solid evidence as far as bone seeking and others are that here’s a site, here’s a preserved organic deposit. Here’s plate, here’s stone monuments. Or, can I intuitively, because of oral tradition that’s been passed on say, “you know what? The absence of something there that I’ve got to photograph doesn’t mean that I can’t manage this responsibility and sensitively and deal with it as a submerged, prehistoric landscape for western science TBD. Traditionally, it’s there.” Do I have the authority to do that?

Caroline Blanco: I think you can. There’s a 9th circuit case years ago where he had a parking lot. Whoever thought a parking lot was anything of importance, it turns out there were traditional dances that occurred there. You couldn’t see that, but you heard about it. Eventually there’s a connection. You have intangible cultural properties, you’ve got that, you can show a connection, I don’t see any reason why you couldn’t defend a case if somebody wanted to say that this is important and significant even if you can’t see it.

Speaker 2: That’s why we’re moving away from calling them traditional cultural properties and calling them the alternative name which is in the past literature of traditional cultural places. Sometimes, a place has significance to a group or groups of people simply because of their belief systems. Is that any less important than stuff?

Speaker 3: I want to take that lead you just gave me a minute ago. We’ve been enjoying fabulous pictures of underwater stuff, tomorrow I’m headed to Sturgeon bay where I grew up and we’ve seen a number of my friends, but I don’t see many shore side structures. I want to make a plea for a moment for the assembled brain trust that we have, that we stop looking at our feet and we start looking at what’s in front of us. Looking at what I’m going, for lack of a better word, call contemporary historical archaeology.

We have folks like Ralph Stanley and Mount Desert Island in Maine whose put up his boat shop of years and years and years and years on the market, because he’s retiring. Who’s going to go out and do the folk life and the documentation of that boat shop before it changes hands and we lose that piece of maritime cultural landscape and it gets morphed? Where I grew up on Sturgeon bay, piers and builders is no more, it’s grass and condos.

Latham Smith ship building is no more, it’s below what’s now Actively Based Ship. A month ago, Palmer Johnson’s which has been a custom yacht builder in Sturgeon bay for years and years and years, one month ago announced that its stopped American production and there’s a few things that are going to be built in Europe. I’m going up tomorrow because I’m going into their shops to photograph how it was when the guys walked out of their shop a month ago.

There’s shore side structures like the Tacoma wheat warehouses built by the great northern railroad … Heavily underrepresented on the National Register. The presentation yesterday about the fish shacks and the rude structures of the maritime coast, you know, I think the SHPO’s offices and the folks at the national register need to think about how do we look up besides what’s just below.

James Delgado: Good point, we have about 1 more minute. Any last … yes Doug?

Speaker 3: Jorgen Denker the premier underwater archaeologist for Denmark has indicated to us that anaerobic environments preserve quite well. I think we need to be looking for those, we need to be developing and encouraging the electronic devices and procedures that can see through the surface sediment into what is below and that belief system is evidence as well as physical evidence is evidence and we should be dealing with both of those and giving them a strong place and we protect. It is going to be in a non-oxygenated and anaerobic environment.

James Delgado: Excellent point, I was just in Denmark two weeks ago. The national museum, the entire ground floor filled with all of the evidence they’re getting from their submerged site.

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