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common ground

Speaking Nation to Nation
Summer/Fall 1997, vol. 2(3/4)

Online Archive

*  Due Process and Dialogue

(photo) Yankton Sioux delegation arrives at the White House, 1905.

"[Glacier Bay National Park] was founded in the spirit of John Muir, with a strong tradition of scientific inquiry [and] an historic focus looking only as far back as the arrival of European explorers. Perhaps it was this short-sightedness that led to many of the conflicts to come."

Wayne Howell

by Mark Schoepfle

Two o'clock, one warm July afternoon, finds me and my Navajo research colleague Kenneth Begishe consulting with a group of elderly Navajos about 15 miles south of Mexican Hat, Utah. Mexican Hat, and the communities to the south around Monument Valley, are part of the Oljatoh Chapter, a unit of political representation on the Navajo Nation. We are talking to an elderly man and several of his close relatives at his house next to a 100-foot-high pile of uranium tailings, a residue of the Cold-War-era mines that still pierce these hills. The pile was soon to be remediated using EPA's Superfund. We are here simply to discuss some stone enclosures south of Mexican Hat, overlooked by an earlier team inventorying archeological sites for a remediation feasibility study.

This afternoon, we are a good 15 miles south of the enclosures, listening to what the gentleman has to say. He is an influential leader in these parts, and relatives sitting in the shade arbor nearby defer to him. If we had decided not to speak with him, everybody else would simply have had nothing to talk about.

He is not about to answer our questions quickly. First, he observes that trucking away the tailings will stir up even worse-than-normal dust. He has heard all about the health dangers. For him, however, uranium is not the biggest killer of Navajos—it is wine and attendant drunkenness. He points to little yellow-cake figurines (pure uranium) on his kitchen window sill. He's been making them for years, he says, and nothing has happened to him.

At this point, it would have been easy to assume that his cultural perspective had rendered him unconcerned about the hazards. A guided tour of his sheep grazing areas shows otherwise. First, his point about the wine was true—even for the local communities near Monument Valley. Just about every family on the Navajo Nation is either affected directly by alcohol-related accident or violence, or someone close to them has been. We also find that Navajo workers from outside the community had moved here in the late 1950s and early 1960s to work in the uranium mines and mills, bringing their livestock with them. They also brought liquor from the towns to the north. Later in the afternoon, as we walk about the grazing area, we can also see half-boarded uranium pits, ruins of old houses, and tin cans and trash strewn everywhere. Now the remains of these Navajo outsiders' occupation are a hazard for goats and sheep, the rotted wood covering the mine pits endangering children and livestock alike.

He is concerned that these problems will never go away. No one had addressed them before and he is realistically skeptical that anybody ever will. His recommendations are nevertheless straightforward: cover up the tailings—do not truck them away—and favor Navajos in the area for the job. After he finishes, his sons add their own plea. Their issue has less to do with safety than with chronic unemployment.

The next day, Mr. Begishe and I meet with others in the community, including medicine men and former miners, one of whom has brown lung disease. They tell us that site managers had already been talking about burying the tailings—with dirt from a hillock where medicine men gather sacred plants. The leaders had discussed this with the medicine men. Together, they determined that while damaging this sacred site was lamentable, it was necessary for the good of the community. Their recommendation: take the dirt from the southwest side but don't damage the north side, where the plants grow.

The former miners tell us that the workers will need dust masks as well as shower houses where they can clean up—many homes have no running water—to shield their families as well as themselves from the potential danger.

And we finally find out about the stone structures: playhouses built by boys in the early 1960s.1

The Essence of Consultation

We were ushered into this consultation courtesy of NEPA, the National Environmental Policy Act of 1969, whose 1979 regulations intend to "insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken" affecting resources for which the federal government is directly responsible. Our encounter in Monument Valley puts a human face on a process that, to some, may seem rigidly bureaucratic.

In fact, consultation under NEPA need not be highly structured. It is an attempt, first, to understand a potential impact from the standpoint of those who see themselves directly affected. This means that the information-gathering can be structured around their understanding. Second, consultation usually implies action. This may involve little more than simply noting their concerns in a formal way, or giving them additional information. However, in no case can those conducting the consultation promise what they cannot deliver.

Consultation can be integrated into many parts of the NEPA process, and with other laws that NEPA assumes are observed. Since various federal agencies are supposed to draft guidelines and procedures to implement NEPA, the Department of the Interior requires that laws such as NAGPRA, the American Indian Religious Freedom Act, and the American Antiquities Act be integrated into the process. NEPA, in effect, is a sort of skeleton upon which the requirements of these other laws hang. The example above highlights a number of important points.

First, consultation can occur at any time. Briefly, the process for drafting an environmental impact statement, or EIS, involves five principal stages: notice of intent, scoping, the draft statement, the final statement, and the record of decision. Our activity occurred after the EIS had been completed. Consultation is important especially during the scoping phase and the responses to the draft EIS. However, there are other times when public involvement is solicited, such as when certain resources were not identified adequately, or an agency or segment of the public was overlooked.

Second, consultation can be conducted with any constituency that considers itself affected. Consultation is not limited to federal and tribal agencies. Among tribes especially, there are times when communities wish to deal with the federal agency directly, as well as through their own tribal government.

Mr. Begishe and I knew that the Navajos in the area had long been sensitive to impact assessments, and would demand to air their positions—in full. Even though our job was simply to identify a set of stone enclosures, we were obligated to interview the people who wanted to be interviewed. Because we did our homework, we realized that all were either officials or active leaders in the Oljatoh Chapter.

Executive Order 12898 is important here.2 The order requires all federal agencies to include as part of their mission "identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low income populations in the United States . . . " It also requires that an interagency work group identify the effects, develop a strategy to deal with them, coordinate research, and hold public meetings. While the consultation in our example occurred before its passage, EO 12898 makes it much easier to fit this kind of consultation into the NEPA process.

Third, the regulations governing the NEPA process are focused on determining the significance of impacts. Significance of impacts constrains consultation. Significance can be defined in terms of an impact's context or intensity. "Context" means the social and environmental framework within which the action would occur. "Intensity" refers to factors such as health and safety, controversy, uniqueness of geography, uncertainty of events, degrees of risk, cumulative impacts, effects on historic or cultural resources, and many more (40 CFR 1508.27). "Context" and "intensity" have not been rigorously defined, and the courts have focused mostly on clarifying cumulative and socioeconomic effects.3 Determining intensity is important to evaluating the alternatives put forth in the EIS (whose purpose is to evaluate, not collect evidence to permit or deny).

Fourth, like the EIS process, consultation is evidence driven. While the impact statement must address all concerns raised either by informed experts or the concerned public, the statement itself is evidence driven. Both the EIS and the consultation must define—preferably in quantifiable terms—the resource, the effects of the proposed activity, and the impact. Resources can include subsistence, cultural artifacts, sacred sites, and the general welfare of the people affected. All impacts are discussed "in proportion to their significance"; concerns over what "might" happen require "only a brief discussion" (40 CFR 1502.2). As the regulations make clear: ". . . significant economic or social effects by themselves do not require the preparation of an EIS (see 40 CFR 1508.14)(BIAM 5.3A.2).4

It is important to maintain a good base of evidence. General concern about violating a sacred site, for instance, will obviously not generate alternatives as well as a well-articulated statement of impact. In our example, we needed to show exactly where the sacred places were and how they would be affected, as well as propose solutions to mitigate. The Navajos already had their own recommendations for protecting the places and minimizing dust. Similarly, their concerns about subsistence were easily documented and photographed.

To use a different example, if low-flying airplanes were going to disrupt native hunting and gathering, at the very least show how. If game are scared off, will hunters have to go further afield, expending more fuel and energy? How many people will be affected?

Fifth, the EIS and the consultation process must be "analytic rather than encyclopedic" (49 CFR 1502.2[a]). As Treitler has observed, the statement's impacts must be in cause-effect order.5 Descriptions of different worldviews will not produce mitigative measures. For example, while the elderly speaker in the introduction could voice his opinion, we needed to quantify the impact of a safety hazard. Discussions of sacred places had to be explicit, and mitigations spelled out carefully. To our good fortune, the Navajos had already been thinking along these lines. Consultation can also address seemingly unrelated issues,6 such as the Navajos' concern about employment, since they affect the decision-making associated with the proposed measure.

Sixth, consultation must maintain the same balance maintained in the rest of the NEPA process. In NEPA the negative impacts of the action are balanced against the benefits. Mitigation is performed to reduce negative impacts, and change the balance in the direction of acceptability. Again, the mitigations suggested by the Navajos were explicit: limit the source of landfill from a particular sacred location, take safety precautions for workers, and give employment preference to local residents.

Due Process with Obligations

Consultation can be important in the NEPA process at every stage, from the environmental assessment to the final environmental impact statement. It allows the interested public and governmental agencies to address issues that may have been overlooked. It allows continued examination of uncertain impacts of great concern to the public, and monitoring of research whose findings are incomplete.

Consultation provides an opportunity to conduct quick, on-the-ground qualitative rapid assessment—complete findings. Such assessment has become increasingly popular, first, because it does not require cumbersome surveys or other primary research. Second, it includes ethnographic and other qualitative approaches that focus on the knowledge of the people affected. Third, the assessment design is iterative, and can be built systematically around that knowledge. Fourth, because of its iterative nature, it can be linked to focus groups and other planning and evaluation approaches.7 Finally, such assessments can be linked to the more putatively objective findings of other scientific inquiry involved in the environmental impact process.

Consultation is a due process presupposing that the public, if interviewed and observed properly, can and do know a lot about what will happen to them (only after reasonable attempts to record their understanding can we conclude that they have not been properly informed, as sometimes obviously happens). Through this process, those conducting the consultation can be mediators without becoming advocates.

However, with due process comes obligations. One cannot simply accept the first answer received. Interviewees may not be accustomed to supplying the level of detail required, or may not want to disclose the whereabouts of grave or ceremonial sites.8 Efforts must be made to negotiate suitable arrangements with them.

Although this process is limited in its ability to fully characterize a group of people, it is not relativistic. That is, the process highlights cultural differences not for their own sake, but only to the extent that they illuminate potential impacts, resources, or populations that might otherwise be overlooked.

It is well known that many reservation communities associate quick decisions and majority votes with perceived attempts by federal agencies, private companies, and tribal governments to get questionable projects approved.9 One of NEPA's great contributions is providing a channel for people to be involved in these decisions. This process is not always easy, but it is vital.

For more information, contact Mark Schoepfle, Bureau of Indian Affairs, Branch of Acknowledgment and Research, 1849 C St., N.W., MS4603-MIB, Washington, DC 20240, 202/208-2753, fax 202/219-3008, e-mail Mark_Schoepfle@ios.doi.gov.

References

1. Jacobs Engineering Corporation, Remedial Inventory/Feasibility Study for Uranium Tailings Burial at Monument Valley, Albuquerque, 1985.

2. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (February 11, 1994).

3. Bear, Dinah, "NEPA at 19: A Primer on an ‘Old' Law with Solutions to New Problems," Environmental Law Reporter, vol. 19 (1994), pp. 10060-10069.

4. BIAM Release No. 9303, BIA NEPA Handbook: Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act.

5. Treitler, Inga E., "Merging Methodological Rigor with Interpretive Sensitivity in an Intercultural Communication Strategy," M.S. paper prepared for the Conference on Growth and Change at the University of Kentucky at Lexington (1994).

6. Schoepfle, G.M. et al., "How Severe Is Severe: Public Involvement and Systematic Understanding of Wilderness as a Resource," in Environmental Analysis: The NEPA Experience (Boca Raton, FL: Lewis Publishers, 1993).

7. Beebe, James, "Basic Concepts and Techniques of Rapid Appraisal," Human Organization vol. 54, no. 1 (1995), pp. 42-51.

8. Treitler, Inga E., "Tribal and Agency Strategies for Assessing Impacts," Practicing Anthropology vol. 16, no. 3 (1994), pp. 21-24.

9. Schoepfle, G.M., M.L. Burton, and F. Morgan, "Navajos and Energy Development: Economic Decision Making Under Political Uncertainty," Human Organization vol. 43, no. 3 (1984), pp. 265-76.

MJB/EJL