Mdote Minisota

A Public EIS

Part 3

 

"A truthful, open, and ongoing environmental review process carried out by the public for the public, is needed to examine, document, and review all actions planned or undertaken by public agencies and private entities within the area of Mdote Minisota. Without such a process in place, this sacred and historic space may continue to be destroyed, bit by bit, historic property by historic property. . . ."Mdote Minisota, A Public EIS, Part 1

-May 7, 2006-

Fears about the (Secret) Clouse Report:

Park Service Official Warns of Harm if Public Reads Draft Report

 

William W. Folwell

(folwell@minnesotahistory.net)

 

Harm could occur if the public reads the 2001 draft of the Clouse Report, written about an archaeological investigation of the Bureau of Mines-Twin Cities Campus—the location of historic Coldwater Spring—according to an official with the National Park Service. The warning comes in a letter from Ernest Quintana, Regional Director of the Park Service in Omaha, sent on May 4, 2006. In the letter Quintana states that the possible harm would occur to "participants and the project" but he does not state the nature of the harm. Quintana also maintains that the Park Service has to right to prevent one part of the public from reading the report at this time, despite the fact that the document has been available to other members of the public for several years.

Quintana's letter was written to historical anthropologist Bruce White, who has repeatedly requested the release of the Clouse Report over the past five years and who wrote to Quintana in April, asking for clarification about the copyright status of the draft report, in light of plans to make it available through the Internet. In his letter Quintana said:

White's letter to Quintana had made the same point as reported on this website recently (see below), that the FAR does allow the government to authorize the reproduction, publication, and use of reports done under cooperative agreements with the federal government. But, what Quintana did not mention is that the right is nonexclusive. as stated in the specific provision of FAR (A-110):

According to this provision the federal government may have a right to authorize the reproduction of the Clouse Report but it is not a right that excludes the rights of others to reproduce or distribute. The fact that the federal government has decided not to authorize the reproduction of its own copy of the Clouse Report may be within its powers, but does not appear to have any bearing on whether a report legally in public hands may or may not be distributed more widely among the public.

Beyond the legal aspects, Quintana suggests that this distribution may "cause harm to the participants and the project itself." The nature of the harm is not specified. To consider exactly what this harm might be, it is necessary to understand what "the project" is. The context of the letter suggests that this refers to the EIS being done currently to determine what should happen to the Bureau of Mines-Twin Cities Campus property. As it happens, the Clouse Report was not done as part of the EIS, so, this statement is simply a reiteration of the Park Service's belief that it can incorporate any information it wants to into the EIS and prevent the public from looking at it, until it decides to make the information public. This position was discussed in detail last week on this page. But what harm could come to the EIS if the Clouse Report were made available to a wider public? On this point it appears that the Park Service believes that the Clouse Report might have too much of an influence on public perceptions of the Bureau of Mines property. However, an EIS process is one governed by law. Any final determination resulting from it will be based on a sum total of facts, not any one particular document.

As for harm to participants, who are they and what harm might be involved? By participants Quintana may mean federal employees and possibly the public itself, although this is not clear. It is difficult to imagine that anyone reading the Clouse Report would be motivated by the report to cause anyone harm. Notably, Quintana makes no reference to any harm that might come to archaeological resources. Throughout this entire process the National Park Service has never claimed that the release of the Clouse Report would harm archaeological resources. If the agency believed this to be the case it would have cited Exemption 3 of the Freedom of Information Act or FOIA, which has often been used to prevent the release of information on the location of archaeological resources. Instead, as reported last week, the Park Service cited Exemption 5 as the reason for not releasing the report (see below), an exemption used to protect the deliberative process of federal decision-makers. The bottom line is that since the Bureau of Mines property is under federal security, public access is limited to a few hours each week. Further, all indications are that the archaeological resources of the site are deeply buried under fill. It would be close to impossible for archaeological poachers to enter the site and harm resources before federal security arrested them.

What are the other dangers could result in harm to the project or participants? How about the danger of the long rumored "radioactive bear carcass" once said to have been located on the Bureau of Mines property, the remnant of some bizarre Cold-War experiment. This was always assumed to be an unfounded rumor and probably is. It is highly unlikely that the Clouse Report contains any discussion of the alleged bear and in any case, if radioactive cultural resources had not already been removed and were still on the property it is unlikely that federal officials would allow people access to the site, even in the limited way they do now.

Perhaps the only reasonable conclusion that can be drawn from Quintana's letter is that it is written to protect an arbitrary decision, made prior to the beginning of the EIS by someone in the federal government, to clamp down on public discussion of federal actions involving the Bureau of Mines property. The continuing efforts by the Park Service to support this arbitrary decision brings to mind a recent article by Scott Shane in the New York Times (April 16, 2006), in which he discussed recent efforts by federal officials to re-classify documents in the National Archives that were already de-classified. Shane wrote that National Archives officials have promised to create a better system for overseeing truly necessary re-classification and suggested that this would be a thankless task given the penchant for secrecy on the part of government officials everywhere:

 

Mdote Minisota

A Public EIS

Part 2

"A truthful, open, and ongoing environmental review process carried out by the public for the public, is needed to examine, document, and review all actions planned or undertaken by public agencies and private entities within the area of Mdote Minisota. Without such a process in place, this sacred and historic space may continue to be destroyed, bit by bit, historic property by historic property. . . ."Mdote Minisota, A Public EIS, Part 1

- May 3, 2006-

Coming Soon!

The (Secret) Clouse Report

AKAArchaeological Research at the Former Twin Cities Bureau of Mines Testing Facility, Minnesota”

By Robert A. Clouse, RPA

Archaeology Department, Minnesota Historical Society,

2001

 

William W. Folwell

(folwell@minnesotahistory.net)

Within a few days a draft version of a report kept from the public by the National Park Service for the past five years will be made available through the Internet. Those making this report available believe that the public has a right to read it as part of a truly public EIS process relating to Mdote Minisota. But this is not the way the National Park Service views it: The Park Service has refused all but a few requests to view any version of it over the years and has stated recently that the public cannot read the draft version.

How did this report come to be written? What, if any secrets does it hold? What restrictions can the federal government place on research and information compiled by recipients of federal funds under grants and cooperative agreements? What is Exemption 5 of the federal Freedom of Information Act (FOIA) and why does the National Park Service think this gives them the right to keep the Clouse report secret?

Fact Finders

It all began on the hazy but warm morning of October 16, 2000. Officials of a Twin Cities branch of the National Park Service, the Mississippi National River and Recreation Area (MNRRA), had invited members of the public to visit the site of the former Bureau of Mines property, the location of outflow of Coldwater Spring, in Hennepin County, Minnesota.

There they were told of the archaeological survey of the property to be conducted by Bob Clouse, then head archaeologist of the Minnesota Historical Society in St. Paul, a 501(c)(3) institution that receives over $20 million of annual funding from the State of Minnesota. The survey was to be conducted under a cooperative agreement between the National Park Service and the Historical Society. The federal government would pay most of the costs, but Bob Clouse would direct the project, with the assistance of a federal archaeologist. The involvement of the Minnesota Historical Society in the process made sense, since the Historical Society owns and/or manages nearby properties as part of its administration of the Minnesota State Historic Sites Network under state law. These properties are all part of the Fort Snelling Historic Landmark and Historic Site districts, as is much of the Bureau of Mines property.

According to a public statement in 2000 by the federal archaeologist who worked on the survey, Virgil Noble of the Midwest Archaeological Center in Omaha, the archaeologists were to serve as “fact finders.” The archaeological work was designed as much to help the Historical Society to manage its properties as it was to benefit the National Park Service. Hence the use of a cooperative agreement, a form of funding akin to a grant, in which federal agencies and nonprofits or educational institutions work together on projects that benefit them both.

Members of the public were invited to the event on the day that the Clouse survey began. They were pleased to be told that they would be welcome to observe the project while it was going on, to see what the archaeologists were doing, and to ask questions. If federal officials had wanted to they could have made the site off limits during the survey: The site was and is surrounded by a high fence and then as now was protected by Federal Protective Services, currently part of the Department of Homeland Security.

On the opening day of the survey, members of the public were given a fact sheet, which described the project and ended with the following statement: “A final report of the project is expected to be available in the spring of 2001.” This date did seem optimistic because of Clouse’s demanding workload. No matter what projects he began, he was likely to be called upon to meet the demands of other assignments. But Clouse worked steadily on the survey in the fall of 2000 and in the spring of 2001.

Community members who visited the site found Clouse and the other archaeologists to be pleasant and forthcoming. Clouse answered questions politely. He explained that much of the Bureau of Mines site was covered with a layer of fill as deep as three meters, but underneath the fill were intact soil surfaces from the 19th century. In fact shortly before the survey began Clouse had found a grading plan, prepared by the Bureau of Mines in the 1950s which showed how the agency intended to change the geography of the site before moving onto it. The document provided a clue to the depth of the fill.

During the survey, Clouse stated publicly that he was not finding many “features,” such as the foundations of the old Baker House, built in the 1830s, or of the houses of early settlers who lived around Coldwater Spring, places that were likely on the Bureau of Mines property. These structures were all located around the spring on an early map drawn by Lieutenant E.K. Smith in 1837. Before the survey began, Clouse said that he had high hopes of making sense of the Smith map and finding some of these early structures. But during the survey, he stated that he was finding only scattered historic artifacts from the settlement period. However, Clouse also stated that given the thick layer of fill over intact soil surfaces, many remnants from the 1830s and 1840s, if not earlier, were potentially still on the site, though getting at them would be expensive and probably beyond the Park Service’s $30,000 budget for this survey.

Clouse finished a draft version of his report in 2001. That he had completed this draft was not commonly known, although the report was sent to a number of archaeologists outside the federal government for their comments. Sometime in 2001 non-archaeologists first began to make inquiries about the report, asking what Clouse had learned and when the report would be released.

The Report Is in the Mail

At first officials at MNRRA made promises that the report would be done soon and would be released promptly thereafter.

But then the word came that Clouse was ill. . . . He was having trouble finishing the report. . . . It could be several months before copies of the report were available. . . . “Since there was no urgency in getting the report completed, it seemed reasonable and compassionate to give Clouse an extension.”. . . Bad news: Clouse had had a triple bypass. . . . He was recovering. . . . He was working on the report, but it wasn’t done yet. . . . He had quit his job in Minnesota and had taken a much better job in Alabama (or Arkansas, as one federal official mistakenly reported). . . . He was tracking down a few bibliographical details and then he would be done. . . . The report was in the mail. . . .

Finally, in mid-2002, both Clouse himself and the federal officials with whom he dealt reported that the report was finished. But then the tone of public officials changed. Federal officials in Minnesota now began to suggest that they had no control over the release of the report—that officials in Washington were now in control. As requests to view the report became more frequent and insistent, federal officials have became increasingly certain that it would not be released until it had been reviewed by someone in the Department of Interior. Most recently, with the beginning of the EIS process relating to the Bureau of Mines property, federal officials in Minnesota have responded to requests by stating that the report—or at least the “information contained in the report,” as one official put it oddly last year—will be made available after the draft EIS is released, now estimated to be sometime in the second quarter of 2006.

It is hard to understand why the same people who were invited to observe the survey in process are now being denied the opportunity to read the report. One possible explanation has to do with the changes in Washington that occurred during 2001. The Bush administration has curtailed the release of formerly public information, for what sometimes appears to be inexplicable reasons. And indeed, in response to several FOIA requests, officials in the Midwest Region of the Park Service have invoked Exemption 5, the notorious Catch 22 of the Freedom of Information Act (FOIA), which exempts “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”

One FOIA request for the Clouse report and for some other documents about the history of the Bureau of Mines site was sent in May 2004 by Susu Jeffrey and Sue Ann Martinson of the Friends of Coldwater in Minneapolis. Ernest Quintana, Regional Director of the Park Service in Omaha, denied the request in a July 2004 letter, noting that since the completion of the Clouse report, Congress had passed a FY2003 appropriation of $750,000 to lead a National Environmental Policy Act (NEPA) process to determine future use of the Bureau of Mines property. The documents that Jeffrey and Martinson requested, Quintana stated, “might” become a part of “the administrative record established pursuant to NEPA and, if so, will be released to the public within the context of the NEPA process.” But, the letter went on:

It would appear that Exemption 5, when interpreted to an extreme, encompasses not only documents recording actual discussions between public officials about policies, but also factual documents and data such as the Clouse report, thus shielding from public scrutiny almost every document within the government’s control. Exemption 5 would in effect create such a large loophole in FOIA that it would swallow the law.

In this case, Quintana argued that the FOIA exempts not only the documents that were actually part of the NEPA process but also those potentially part of the process. This of course could encompass a very large group of documents, including federal records going back to the encampment of American soldiers at Coldwater Spring in 1819, or earlier, perhaps to the signing of Pike’s Treaty, which purchased the right to use the land from the Dakota in 1805.

But even if the Clouse report was used in the EIS, it was not created for the EIS. If the Clouse report was created as part of a decision-making process, it was only “pre-decisional” to the decision to seek federal funding to pay for an EIS for the Bureau of Mines property. But even then, the Clouse report was only incidental to that decision, not a part of any formal process, and the report was not intended to reflect the discussions of federal decision makers or one might say, “deciders.”

As stated in the cooperative agreement under which the report was produced and by one of the archaeologists involved, the archaeologists functioned as fact finders, not policy makers. For the Park Service to say that the Clouse report is part of the decision-making process in the EIS means that it can effectively incorporate every document in its possession that it will somehow use or merely think about during the EIS. In this case, as in many others, Exemption 5 appears to have swallowed the FOIA, if not a great deal more.

In August 2004, Susu Jeffrey and Sue Ann Martinson appealed the refusal of the Park Service to release the Clouse report to the Office of the Solicitor in Washington, D.C. In late October 2004, the Acting FOIA Appeals Office for the Department of Interior acknowledged receipt of the appeal and promised a determination “as soon as possible.” As of April 2006, they had received no further word.

The Government Retains Unlimited Rights

While refusing to release the Clouse report, federal officials have also refused to let the Minnesota Historical Society release not only the report but any documents created by the Minnesota Historical Society relating to it. According to officials at the Historical Society, federal officials have insisted that they, and they alone, control access to any documents relating to the Clouse survey. This is odd, because, as stated above, the report was done under a cooperative agreement. Such agreements are a means for the federal government to work with educational institutions, nonprofits, and other non-federal entities to do research. But nothing in these agreements and in the specific agreement with the Minnesota Historical Society gives the federal government the right to prevent the institution receiving the money from doing what it wishes with the research that it carries out.

The meaning of the cooperative agreement in this case is relevant not only to public access to the report but also to copyright protections for it. Since the 2001 draft Clouse report is already in the hands of non-federal non-archaeologists, can reproduction and further distribution of the report be restricted under copyright laws? On this point it seems clear that the National Park Service does not own exclusive copyright to the Clouse report. Federal cooperative agreements with educational institutions and non-profits are governed by A-110 of the Federal Acquisition Regulations (FAR), which includes this provision:

The provision makes clear the federal government can use a report created under a cooperative agreement and make it available, but it does not have exclusive control over it. In direct contrast, Ernest Quintana of the Park Service, in a letter of April 2, 2006, responding to questions about the copyright status of the draft Clouse report, stated:

Quintana’s statement blurs the important distinction between a federal cooperative agreement and a contract, suggesting that the same rules apply to all works produced under both kinds of documents and logically, by extension, to federal grants of all kinds. In other words, grant recipients could have their work under a federal grant sealed from the public and their right to copyright such work forfeited, in the same way that the rights of contractors working for a federal agency might be limited. This will be distressing news to federal-grant recipients in universities and cultural institutions throughout the United States.

The stance of the Park Service on the release of the Clouse report has apparently influenced the Minnesota Historical Society, which in correspondence over the last year has echoed Quintana’s statements about who controls not only the release of the report but the copyright to it. The Historical Society has insisted that it has no rights at all under the cooperative agreement except to do the work, receive the money, and keep quiet. For the past year, the Historical Society has refused public access not only to the Clouse report, but to any notes or other information accumulated by Clouse during his work on the survey.

There are many possible explanations for the Historical Society’s policy on this point, but a large one is the federal money the society receives. Under the same FY2003 Park Service appropriation that is paying for the Bureau of Mines EIS, the Historical Society received $1 million to help pay the costs of exhibits at the new Mill City Museum at St. Anthony Falls in Minneapolis. Regardless of the actual rights of non-federal entities under cooperative agreements, grants, contracts, and other relationships with the federal government, the Historical Society has a million reasons for keeping the report secret.

A Public Release of the Draft Clouse Report

The latest word from Ernest Quintana of the Park Service in Omaha is that the Clouse report will be released sometime during the next three months, at the same time that the draft EIS is released. When this happens, it will be accompanied by a massive release of other information. And when it happens, the public will have 60 days to read all of it, examine the data and the conclusions, and provide comment.

The release of all this information at one time is likely to hamper public comment, especially when the information incorporates factual information assembled for a different purpose and available to federal officials for as long as five years. It certainly seems likely that some federal officials have reviewed it by now. Preventing public access to the information appears to be illegal and arbitrary, not to mention unnecessary, especially considering that a draft version of the report was sent to non-federal parties in 2001. If some individuals outside the federal government have had this report for five years, why should a wider public not be allowed to see it?

One answer to this question might be the one that Ernest Quintana proposed in 2004, that the release of the Clouse Report now will pre-empt the current Bureau of Mines-Twin Cities campus EIS process. But anyone who is familiar with what has happened within the area of Mdote Minisota within the last ten years will know that the fate of Mdote, its protection or its destruction, will not depend on the presence or absence of archaeological or even human remains. What happens to Mdote will come from the beliefs of the community and its understanding of the cultural, historic, and sacred importance of the place. A community and its representatives in government that believes in the importance of Mdote will preserve it regardless of how many or how few artifacts, bones, and subsurface structures found there. In the end the community will not give undue weight to the Clouse Report, but will give it all the attention and respect it deserves, in the context of everything else that is known or will become known.

Were the draft Clouse Report to be released, members of the public could soon judge for themselves what it is the federal government has sought to prevent them from reading for the past five years. Additional time would be allowed for a careful evaluation of the findings of the report. Members of the public could also learn a few more pieces of information about a key place in Minnesota history and culture. Absent a compelling and reasonable purpose for secrecy, the reasons for releasing the report outweigh those for continuing to keep it secret.