As Michigan moves to expand its commercial and industrial base, in particular in the natural resources and energy sectors, companies are moving to more remote and previously undeveloped areas. In the process, they are often running into a new, and sometimes unfamiliar, set of concerns — cultural resources.
Generally speaking, cultural resources refer to anything that is valued by, associated with, representative of, or contains information about a given culture. They can include archaeological resources, which are the remains of past human activity, such as a burial site, a prehistoric village or an historic logging camp. They also can include traditional cultural properties, such as a Native American spiritual or ceremonial site.
These resources are often not easy to identify without the appropriate expertise and communication with those who value the resource. For example, tribes may ascribe cultural importance to natural resources that, to an outside observer, might appear unremarkable.
Businesses that seek to develop new projects need to understand their rights and responsibilities when it comes to protecting cultural resources.
A development project that requires a federal permit or approval will typically require compliance with the National Historic Preservation Act, or NHPA, and the National Environmental Policy Act, or NEPA. These are procedural statutes, meaning they don’t require any particular outcome that can involve very lengthy processes.
NHPA mandates a process in which the responsible federal agency must engage in consultation with interested Native American tribes to identify cultural resources that might be historically significant and therefore covered by the statute. NHPA compliance often requires hiring experts such as archaeologists, ethnographers and historians to help identify such resources.
The next step is to determine potential adverse affects of the proposed development on these resources — such as noise or physical destruction — and then look for ways to mitigate or avoid the impacts. While NHPA does not ultimately require mitigation or avoidance, it does require that the federal agency work through the process in good faith.
Under NEPA, the federal agency must consider whether the project will have significant environmental impacts. In addition to factors such as wetlands, air and endangered species, NEPA also requires consideration of the broader human environment, including cultural resources, Native American treaty rights and environmental justice issues.
Typically, the agency will conduct a preliminary “environmental assessment” to determine if the project could have significant environmental impacts. If it might, the agency must then prepare a second, much more involved document called an “environmental impact statement,” which looks at potential impacts in more detail and considers ways to mitigate them. These NEPA documents usually require significant expertise and multiple environmental studies.
While projects requiring a state permit or approval do not usually require compliance with NHPA or NEPA, the state may sometimes require consideration of cultural resources, particularly when state lands are involved. If resources important to tribes are potentially impacted, the state may want to discuss the project with the tribes directly.
Both NHPA and NEPA relate specifically to agency responsibilities. Beyond that, a developer who is considering a project in an area that has the potential to impact resources of importance to neighboring tribes should strongly consider reaching out to those tribes as early as possible.
Such early engagement is advisable regardless of whether it is legally required. Establishing open lines of communication and exchanging information can build trust, stave off potential misunderstandings or conflicts, allow the developer to incorporate tribal concerns into project planning and reduce the risk of potential legal challenges to the project.
Keep in mind that tribes may have legal recourse and lines of communication to government officials that are not available to non-governmental organizations. Developers should remember that federally recognized tribes are sovereigns and should be treated as such. Developers should also recognize that successful engagement takes time and patience. They should approach discussions in good faith and be sensitive to cultural differences that can come into play and inhibit a positive dialogue.
Developers should consult with their legal advisors and consultants to ensure appropriate consideration of these issues.
Daniel P. Ettinger is a partner at Warner Norcross & Judd LLP who concentrates his practice in environmental litigation with a special focus on NEPA, NHPA and cultural resource issues. He can be reached at firstname.lastname@example.org.