Trump looks to gut a key historic preservation law

A weakened Section 106 makes national monuments and the Chaco mineral withdrawal more important than ever

REMINDER: There’s just a little over a week left to comment on the Trump administration’s proposal to rescind ban on new oil and gas leases and mining claims within a 10-mile radius of Chaco Culture National Historical Park. The BLM is accepting public comment until July 29 on three alternatives: 1. keeping the ban in place; 2. shrinking the 10-mile buffer zone to just five miles; 3. eliminating the ban altogether. To comment, click on this link and then click on the “Participate Now” button at the top of the page.

🐓 Regulatory Capture Chronicles 🦊

Wall at the Twin Angel site, a Chacoan outlier that lies along the Great North Road. Note the oil and gas facility in the background. Jonathan P. Thompson photo.

President Donald Trump’s proclamations virtually eliminating Grand Staircase-Escalante and Bears Ears national monuments this month listed several arguments purportedly justifying the shrinkage. One of those was that national monument protections aren’t necessary, because the land and antiquities in question are already protected by various federal laws. The same argument is used to justify revoking the mining-claim and mineral-leasing ban around Chaco Culture National Historical Park.

There is some truth in this: There is a suite of federal laws, from the Federal Land Policy and Management Act to the Endangered Species Act, that are intended to protect environmental and cultural resources on all federal land, whether it’s in a national monument or not. But those laws aren’t always adequate, and now the administration is actually working to weaken Section 106 of the National Historical Preservation Act, which would be key to protecting the cultural sites in the former national monuments and the Chaco “buffer zone.”

When a mining or drilling company proposes a project on a mining claim or mineral lease on public land, the National Historical Preservation Act requires the jurisdictional agency to determine whether the proposed development might affect historic properties. If so, it triggers Section 106 of the law, which requires the agency to consult with tribal nations or other potential stakeholders, to identify potentially affected properties, and to work to avoid, minimize, or mitigate adverse effects on those properties.

Section 106, commonly referred to as “identify and avoid,” requires oil companies or other developers to conduct a cultural inventory of all land in the path of development. If the surveyors happen upon a “significant” site, the well pad, road, or pipeline must be relocated. This can prevent direct impacts to larger sites; you’re not likely to see a Chacoan great house bulldozed for a well pad, for example. But archaeological surveys can miss more subtle cultural features such as stone shrines, Chacoan “road” segments, or ancient cornfields. And the agencies aren’t likely to let a cultural landscape get in the way of the drill rigs or their “multiple use” mandate. Section 106 has not prevented gasfield roads from cutting across Chaco’s Great North Road in several places, nor has it kept several oil and gas wells from being drilled within a half mile of Pierre’s Site, a Chaco outlier within the 10-mile buffer zone.

Ruth Van Dyke, a professor of anthropology at Binghamton University cataloged the impacts of oil and gas development on the sound- and view-scapes at Pierre’s. “I found that, despite the due diligence agencies have exercised to protect the ground footprint of Pierre’s, there have been significant impacts,” she wrote. Twelve pumpjacks are visible from the Acropolis, and it’s likely that . When I visited a few years back, the whir-pop-pop-whir of the machines was irritatingly audible, affirming Van Dyke’s observation: “Rather than a sacred landscape and part of a UNESCO World Heritage Site, the Pierre’s community had the feeling of an industrial park.” (While many people have pointed out that there’s scant recoverable oil within the buffer zone, there is plenty of natural gas, which could be targeted if and when commodity prices increase).

Given the inadequacies of Section 106 now, it has stunned historic preservation advocates to learn that the Trump administration’s Advisory Council on Historic Preservation is proposing to weaken the law even further by giving the agencies more power, while taking input away from the public and other stakeholders, including tribal nations.

In a statment titled “The End of Section 106 as We Know It?”, the National Conference of State Historic Preservation Officers writes:

Positioned to fundamentally change how Section 106 operates, the proposed rule shifts authority away from the collaborative consultation framework Congress established, in favor of unilateral federal agency control over nearly every stage of the process. That includes determining whether Section 106 applies, identifying historic properties, evaluating effects, deciding whether mitigation is appropriate, and ultimately determining whether preservation concerns are outweighed by other considerations.

That last clause is especially important when it comes to the lands cut out of the two Utah national monuments and the Chaco “buffer zone,” if it were to be rescinded as the administration proposes. We have seen that this for this administration, the quixotic quest for “energy dominance” outweighs nearly every other consideration, at least when it comes to public lands. That means that if the changes to Section 106 go through, we can no longer rely on that law to even partially protect the vast, numerous, and cultural sites and landscapes within Bears Ears, Grand Staircase-Escalante National Monument, and the Greater Chacoan Landscape. It makes the mineral withdrawals more important than ever.

Several years back, when writing about the Greater Chacoan Landscape, I spoke with Theresa Pasqual, former director of Acoma Pueblo’s Historic Preservation Office, about Chaco, the landscape, and how federal laws weren’t enough. I’ll leave you with a sagacious quote from her:

“Even though agencies try to mitigate the impact, it isn’t enough, because you’ve literally destroyed the context in which those things exist,” says Theresa Pasqual, former director of Acoma Pueblo’s Historic Preservation Office, and a descendant of the Pueblo people who occupied the Four Corners for thousands of years. “Most of our pueblos are still transmitting their migration history through oral means. So when you have development that begins to impact many of these sites — that range in size from the grandeur of Chaco Canyon or Mesa Verde to very small unknown sites that still remain un-surveyed and unknown to the public — they are literally destroying the pages of the history book of the Pueblo people.”

⛈️ Wacky Weather Watch⚡️

It’s feeling downright apocalyptic lately. We’ve had crippling drought, hellish temperatures, locust plagues, cataclysmic fires, pestilence, and all that was just prelude to an especially sporadic and violent monsoon, so far, which helped some firefighting efforts, but also unleashed flash flooding in Arizona, Utah, and Colorado.

The most severe flooding generally occurred on burn scars left by this season’s wildfires, but the intensity of the downpours also wreaked havoc in unburned areas, including Telluride and, most tragically, outside Bicknell, Utah, where a family of five was killed by a flash flood.

Here’s a rundown of some of the most notable flooding:

• In Telluride, a downpour kicked off flash floods and debris flows that shut down the Tomboy Road (it remained closed as of Monday morning), temporarily closed Hwy 145, and inundated the Telluride Middle/High School, where three to four feet of mud and water blasted and oozed into the Palm Theatre.

• The Cottonwood Fire burned through more than 97,000 acres in southwestern Utah before being mostly contained. Over the past several days, it has been the recipient of heavy rainfall, which have turned area streams, including the Beaver River, into raging, slate-gray-colored, debris-clogged torrents. The flooding closed down I-15 for a period of time, and forced the evacuation of parts of Beaver City. I should make some crack here about semiaquatic rodents that build dams, but I will refrain.

• A cloudburst let loose on a year-old burn scar near the Black Canyon of the Gunnison National Park, spurring major debris flows that covered roads with rocky detritus and forced the evacuation of about 20 people from a campground.

• I-70 in western Colorado was shut down when water and mud washed onto the highway between New Castle and, appropriately, Silt, on Monday evening.

• Flash flooding in the Prescott Valley in central Arizona was big enough to turn at least one large shipping container into, well, a ship floating down the road. The Prescott area remained under a flood watch on Tuesday and Tuesday night, while the Phoenix area was facing an extreme heat watch later this week.

Any amount of moisture is welcome on the drought-desiccated earth, but if the videos of raging rivers in what usually are nearly dry arroyos give you the idea that the water woes are alleviated, think again. So far these cloudbursts are just that: Short, intense, and isolated bursts of precipitation that get arroyos and debris flows running, but only cause quick spikes in nearby river streamflows. Yes, that’s better than nothing, but no, it’s not going to halt Lake Powell’s precipitous decline.

All of those Telluride-area storms, for example, only pushed the San Miguel River near Placerville to about 160 cubic feet per second for a few hours. That’s about double what it had been running at, but just over half of the median flow for this time of year.

We’re also seeing a lot of precipitation inequality. While Telluride and the surrounding mountains were hammered, locales to the southwest of there remained relatively dry. The Dolores River gage at Slick Rock (downstream from the burn area) remained at a steady and unblinking zero cfs, although just a little ways downstream the gage at Bedrock registered 100 cfs, which is pretty good for the Lower Dolores in July.

Still, this does appear to be only the beginning of the monsoon. If the past is any indication, then the storms are likely to become more frequent and more widespread, and hopefully a little less intense, in the coming weeks.

Meanwhile, in the Northwest, lightning has sparked dozens of blazes that are growing together into massive complexes. The Hay Creek Complex in Gilliam, Wasco, and Sherman counties in Oregon is up to 92,000 acres and the Rowe Creek Complex to the south of there is at about 143,000 acres with 0% containment as of Monday night. Further east, the Powder River Fire in Baker County near the Idaho border was up to 20,500 acres.

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🦫 Wildlife Watch 🦅

The Trump administration’s U.S. Fish and Wildlife Service last week quietly downgraded Environmental Species Protections for the razorback sucker, a fish native only to the Colorado River Basin, from endangered to threatened.

“This remarkable fish is very abundant in the river channels of the Colorado Basin,” wrote David Starr Jordan in his 1889 report on the fish of Colorado and Utah. “It reaches a weight of 8 to 10 pounds and is largely used for food.” The razorback sucker, or Xyrauchen cypho, once thrived in the mid- and lower-elevation portions of the Colorado River and its tributaries. But human activities such as dumping mine waste into streams, irrigation diversions, dams, and stocking of non-native fish that prey on the sucker’s eggs and young diminished the population of razorback sucker and other native fish.

So in 1991, the USFWS listed the fish as endangered under the ESA, bringing it extra protections and resources toward its recovery. A propagation and stocking effort helped bring the population back, and fish stocked in the Colorado and Green Rivers have been found to be reproducing, according to Colorado River Endangered Fish Recovery Program. As a result, the USFWS determined that the species is “not currently in danger of extinction throughout all or a significant portion of its range,” and in 2021 proposed “downlisting” it to “threatened” status. That action was finalized last week.

Advocates understandably question the timing of the move. One of the main threats to the sucker is low streamflows, and we’re seeing some of the lowest streamflows on record throughout the Colorado River Basin right now, and climate change is likely to make them worse. The non-native fish that prey on the sucker tend to thrive in warmer water, also a result of climate change (Colorado wildlife officials have enacted voluntary fishing closures on several rivers in the state due to high water temperatures).

“The razorback sucker’s outlook is no better today than when the fish was originally protected under the Endangered Species Act in 1991, so this move makes no sense,” said Taylor McKinnon, Southwest director at the Center for Biological Diversity, in a written statement. “It’s still in danger of extinction throughout its range, which should preclude this downlisting.”

The Fish Question

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📖 Reading (and watching) Room 🧐

If you happen to be anywhere near Mancos, Colorado, from mid-August to the end of September, I urge you to visit the Sundog Gallery to see the “Portal” exhibit, featuring oil paintings by the late Stanton Englehart. I consider Englehart to be the painter of the Four Corners Country — no one captures the light, and darkness, of the Great Sage Plain, the mesas, the canyons, and even the waters of Lake Powell quite like Englehart did.

The show opens Aug. 14 with a reception from 4 p.m. to 7 p.m. at the Sundog Gallery on Grand Avenue in downtown Mancos and runs until Sept. 30.