The local Twin Cities office of the National Park Service, known as MNRRA, the National Mississippi River and Recreation Area, has provided clarification on who it was within the agency who made the decision almost four years ago to reject the findings of a government consultant–which stated in an Ethnographic Study, that Coldwater Spring at the Bureau of Mines Twin Cities Campus property near Fort Snelling in Hennepin County, Minnesota, is a place of traditional cultural importance for Dakota people.
According to a document–a “White Paper”–from MNRRA recently released by the Park Service under a FOIA, or Freedom of Information Act request made by MinnesotaHistory.net,
For the Draft EIS, MNRRA’s Cultural Resources Specialist, Dr. John Anfinson, evaluated Coldwater Spring’s eligibility for the National Register as a TCP under 36 CFR part 63 and under National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties. He found that Coldwater Spring did not meet the National Register criteria or the guidelines of Bulletin 38. MNRRA presented this initial finding in the Draft EIS.
Prior statements from MNRRA in 2006 asserted that the decision was the result of “agency internal review” within the Park Service. Commenting on this at that time, I wrote:
In other words, the Park Service wished to make clear that The Agency—meaning anyone from the Park Service Director Fran Mainella, Regional Director Ernest Quintana in Omaha, some park superintendent in Hawaii, or one or two local staff in Minnesota including, possibly, Superintendent JoAnn Kyral, Project Manager Kim Berns, historian John Anfinson, cultural anthropologist Michael J. Evans, or even MNRRA’s Singing Ranger Charlie McGuire—had decided that Coldwater Spring does not meet the criteria as a traditional cultural property for Dakota people. The Park Service wanted everyone to know this but was unwilling to provide reasons, and use of the term “internal review” suggests that the Park Service would claim an exemption from the Freedom of Information Act to anyone who requesting documentation of the process. [Note: Most of these links from 2006 appear not to work any more.]
The last part of this statement was based on the fact that the Park Service had used an exemption to other requests for information based on assertion that release of certain information would jeopardize its decision-making concerning the disposition of the Coldwater/Bureau of Mines Twins Cities Campus property. By January 2010 when MinnesotaHistory.net did submit a FOIA request for this information, the decision about the disposition of the Coldwater site had finally been made, so there was no basis to refuse to release the information. This new document, released along with other documents in response to a Freedom of Information Act (FOIA) request from MinnesotaHistory.net, states that the internal review was done by Anfinson himself, involving no one else in the agency.
Usually when people submit FOIA requests for information from government agencies they are warned that the agency is only required to release existing documents, not to create documents when they do not exist. In this case MNRRA was asked to provide documentation of the internal review described in the Coldwater/ Bureau of Mines Twin Cities Campus draft EIS prior to the release of the impact statement in August 2006. In response, MNRRA stated that there was very little documentation on how the decision was reached, so MNRRA had to create a document to explain the review process for what turns out to have been the Anfinson decision. The result is the document included below in its entirety.
There is a lot to say about the information and the reasoning shown in the document. One can easily dispute some of the statements recorded in the document as fact. Furthermore, it should be noted that the document provides little support for the decision Anfinson made, except to say that he made the decision. Based on the criticism Anfinson himself sought to apply to what Dakota people said about Coldwater Spring as a traditional cultural place–that it was not well documented–one could easily question the legitimacy of the Anfinson decision. All of this and the information provided in other documents the Park Service released under the FOIA request will be discussed in the days ahead. In the meantime, here’s what MNRRA says about how it decided to ignore its own consultant and to reject the beliefs of Dakota people about Coldwater Spring.
MNRRA Section 106 Review Process for the Bureau of Mines Project
Traditional Cultural Property Evaluation
There is little documentation concerning the Mississippi National River and Recreation Area’s (MNRRA) determination that Coldwater Spring did not qualify as a Traditional Cultural Property (TCP), under the requirements of the National Register of Historic Places, prior to August 18, 2006. The reason for this has to do with the relationship between the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (section 106) processes. The final determination on the TCP status was open until MNRRA sent out the final MOA for signature on January 20, 2010. And, MNRRA is still willing to consider the designation.
For the Bureau of Mines (BOM) project, the cultural) resources review, including the Traditional Cultural Property (TCP) evaluation, has fallen primarily under the section 106 review process. For the purposes of the BOM Environmental Impact Statement (EIS), MNRRA decided to conduct the section 106 process parallel to the EIS process, although the studies and consultation undertaken for the section 106 process informed the Draft EIS and Final EIS.
The Advisory Council on Historic Preservations’ (Advisory Council) regulations, 36 CFR 800.8(4) “Approval of the undertaking,” states that “…if the agency official has found, during the preparation of an EA or EIS that effects of an undertaking on historic properties are adverse, the agency official shall develop measures in the EA, DEIS, or EIS to avoid, minimize, or mitigate such effects in accordance with paragraph (c)(1)(v) of this section. The agency official’s responsibilities under section 106 and the procedures in this subpart shall then be satisfied when either:
(i) A binding commitment to such proposed measures is incorporated in:
(A) The ROD, if such measures were proposed in a DEIS or EIS; or
(B) An MOA drafted in compliance with Sec. 800.6(c); or
(ii) The Council has commented under Sec. 800.7 and received the agency’s response to such comments.”
MNRRA is complying with this provision of the Advisory Council’s regulations, as a Memorandum of Agreement (MOA) has been Written in compliance with section 800.6(c).
Under section 800.4, identification of Historic Properties, a Federal Agency is to “Seek information, as appropriate, from consuming parties, and other individual and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking’s potential effects on historic properties.” And, specifically, a Federal Agency is to seek information from American Indian Tribes regarding sites “which may be of religious and cultural significance to them and may be eligible for the National Register.” MNRRA did both.
MNRRA consulted with those American Indian communities that had shown in an interest in Coldwater Spring and with the Minnesota State Historic Preservation office (SHPO). The American Indian communities consulted included the: Lower Sioux Indian Community, Prairie Island Indian Community, Shakopee Mdewakanton Sioux Community, Upper Sioux Community, Sisseton-Wahpeton Sioux Tribe and the White Earth Band of the Chippewa. MNRRA also included the Mendota Mdewakanton Dakota Community, which is not a federally-recognized Tribe. MNRRA would subsequently consult with 10 Dakota tribes.
To more fully understand the American Indian history associated with Coldwater Spring, MNRRA contracted with Summit Envirosotutions, inc., and Two Pines Resource Group, LLC to complete an ethnographic study of the BOM property. (See The Cultural Meaning of Coldwater Spring: Final Ethnographic Resources Study of the Former U.S. BOM.) The contractors submitted their final) report in June 2006, and the Draft EIS was released on August 18, 2006.
Section 800.4(c) states that once a Federat Agency has gathered the information concerning historic properties, the agency “shall apply the National Register criteria (CFR part 63) to properties identified within the area of potential) effects” in consultation with the SHPO and any Indian Tribe that attaches religious and cultural significance to identified properties. The Federal Agency has to conduct the evaluation as guided by the Secretary’s Standards and Guidelines for Evaluation. MNRRA complied with section 800.4(c) after receiving the final ethnographic report in June 2006.
For the Draft EIS, MNRRA’s Cultural Resources Specialist, Dr. John Anfinson, evaluated Coldwater Spring’s eligibility for the National Register as a TCP under 36 CFR part 63 and under National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional! Cultural Properties. He found that Coldwater Spring did not meet the National Register criteria or the guidelines of Bulletin 38. MNRRA presented this initial finding in the Draft EIS. The TCP review process under Section 800.4, however, was just beginning. MNRRA’s position stated in the Draft EIS was simply an initial finding and open for discussion.
TCP Review Process after August 18, 2006
MNRRA staff (Kim Berns, Steve Johnson, and John Anfinson) met with SHPO staff (Britta Bioomberg, Dennis Gimmestad, Susan Roth and Dave Mather) on August 29, 2006, to discuss a!) the cultural resources issues regarding BOM property, including MNRRA’s position on the TCP evaluation. At this meeting, the SHPO stated that it wanted to wait until the Department of Interior (DOI) selected a preferred alternative before negotiating a Memorandum of Agreement, as. there were too many variables in the draft EIS to consider in a Programmatic Agreement. (See attached meeting notes dated August 29, 2006).
On October 4, 2006, MNRRA sent letters to the SHPO and the Tribes who had participated in the Ethnographic Study detailing MNRRA’s position on the TCP determination. Per 800.4(c) MNRRA asked the Tribes’ their comments and for additional! information concerning Coldwater Spring as a TCP. At this point, MNRRA had not made a final decision concerning the TCP. No Tribe nor the SHPO has replied to this letter or the analysis provided by MNRRA. (See the attached October 4, 2006, letters to Tribes and the SHPO).
On December 23, 2008, MNRRA notified the Minnesota SHPO that the DOI had selected a preferred alternative, reviewed the potential impacts to cultural) resources and requested the SHPO’s comments on the undertaking. Then on January 22, 2009, MNRRA announced an open house meeting for Monday February 23, 2009, through letters to the SHPO, Tribal governments, interest groups and individuals on its mailing list. The meeting’s purpose was to collect public comment on reuse and restoration of the BOM property under the preferred alternative and to specifically gather input on the potential impacts to historic resources on the BOM property.
On January 23, 2009, the SHPO sent a letter concurring with MNRRA that removing the buildings would constitute an adverse effect on the BOM Historic District and supported continued coordination between agencies as demolition work and landscape treatment for the property became more defined. The SHPO also asked MNRRA to “re-review” the TCP issue.
On February 11, 2009, MNRRA wrote to 10 Dakota Tribes letting them know they should have received one letter on December 3, 2008, announcing the preferred alternative and another on January 22, 2009, inviting them to the open house scheduled for February 23. Superintendent Paul Labovitz stated that “My staff and I are available to discuss with you any concerns you may have regarding the preferred alternative, the site’s restoration, and the site’s future use and management.” In its announcement about the February 23, 2009, open house, MNRRA specifically stated that historic preservation was one of the key topics for the meeting (see the January 22, 2009, announcement and related handouts attached). The 10 Dakota Tribes were: Lower Sioux Indian Community, Prairie Isiand Indian Community, Shakopee Mdewakanton Sioux Community, Upper Sioux Community, Sisseton-Wahpeton Sioux Tribe, Fort Peck Assiniboine and Sioux, Flandreau Santee Sioux Tribe, Spirit Lake Dakotah Nation, Crow Creek Sioux Tribe, and the Santee Sioux Tribe of Nebraska.
At the February 23 public meeting, Cultural Resources Specialist Dr. John Anfinson answered questions and explained section 106 compliance to those who talked to him. He emphasized the need to develop a MOA and asked for what input on how what to address in it. Individuals, organizations, and Tribes were also asked to submit written and oral comments directly related to the section 106 process and development of the MOA. MNRRA took those comments related to the MOA and considered them in its drafting of the MOA.
MNRRA notified the Advisory Council of the preferred alternative and the alternative’s potential impacts to cultural resources per Sec. 800.6(a)(1) of the Advisory Council’s regulations on February 26, 2009. MNRRA requested Advisory Council participation to resolve those adverse effects. MNRRA noted its position on the TCP determination. The Advisory Council did not respond. Therefore, MNRRA has proceeded per section 800(b)(1) of the regulations, which provides for proceeding without Advisory Council involvement. MNRRA also contacted the Keeper of the National Register Office on February 27, 2009, and specifically asked for advice on the TCP issue. The National Register did not reply.
On April 28, 2009, MNRRA sent the Draft MOA and supporting documentation to the SHPO and requested their comments. The SHPO replied on June 1, 2009, and suggested that MNRRA develop a detailed protection plan for Coldwater Spring and Reservoir in developing the plan, the SHPO asked MNRRA to “take into account the importance of the area as ascribed by various groups (as documented in the WHEREAS clauses).” The SHPO also stated that there was “The need for additional consideration of the Traditional Cultural Property evaluation of the spring and NPS’s review of that study…” and asked that this be part of the discussion concerning treatment of the spring. MNRRA put protection provisions for the spring in the MOA and agreed to conduct more conversations with the consulting parties concerning the spring’s significance and treatment as the restoration process begins.
On May 11 and 12, 2009, MNRRA sent the Draft MOA to all the Tribes and other consulting parties to the section 106 process and requested their comments on the document. MNRRA also offered to meet with the Tribes to walk through the document. MNRRA followed up with phone calls to each Tribe to reiterate its willingness to meet with them. No Tribes replied or sent comments on the MOA or raised concerns about the process. Up to this point, MNRRA was stilt open to changing its position on the TCP status for this section 106 review, if a community advocating for the TCP had come forward with the information we sought and had pushed for such a designation.
The Final MOA is currently circuiting for signature by the consulting parties to the MOA.
At every point in this consultation process, MNRRA has been ready to meet with American Indian Tribes to discuss the TCP issue. At any point during the consultation process, the Tribes or communities, as defined by Bulletin 38, that believed a Coldwater Spring was eligible for the National Register as a TCP could have asked to discuss the TCP issue. None did.