What many of us “know” colloquially as the Antiquities Act (of 1906), formally 16 USC Ch. 1 Sc. LXI, Sec. 431, “National and International Monuments and Memorials” does not protect sites like the Trap Springs cultural and archeological site.
Here is the original text of the act, sections 1, and 2:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who shall appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity, situated on lands owned or controlled by the Government of the United States, without the permission of the Secretary of the Department of the Government having jurisdiction over the lands on which said antiquities are situated, shall, upon conviction, be fined in a sum of not more than five hundred dollars or be imprisoned for a period of not more than ninety days, or shall suffer both fine and imprisonment, in the discretion of the court.
Sec. 2. That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected: Provided, That when such objects are situated upon a tract covered by a bona fied unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is hereby authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.”
Note the following:
1 – the site must be on federally owned land, or it must be on private property relinquished (given) to the federal government, and accepted by the federal government
2 – the President may then declare the site a National Monument, or National Memorial, by executive order
3 – once 1), and 2) above are satisfied, the site is afforded protection, and subject to enforcement as in section 1.
It is not widely known, but 16 USC Ch. 1 Sc. LXI, Sec. 431 was repealed on December 19, 2014, and superseded by other statutes, weakening the President’s executive authority on this matter.
In the State of Texas, there is almost no federally owned land. The vast majority of lands in Texas fall into one of three ownership categories; privately owned property, publicly owned property (i.e. held by a State, county, or municipal entity), or land held in trust by the State itself through the General Land Office (GLO).
Technically, sites like Trap Springs may be afforded protection under the National Historic Preservation Act (of 1966), i.e. NHPA ’66, and the codes that implement it, 36 CFR Part 800 (CFR is the Code of Federal Regulations).
In this particular instance, the United States Army Corps of Engineers (USACoE) is the permitting authority that triggers the applicability of NHPA ’66 for the Trans-Pecos Pipeline project. While no federal monies, federal lands, or other federal resources are involved in the project, the triggering condition is the requirement for the USACoE blanket authorization under Nation Wide Permit 12, for linear utilities projects (i.e. pipelines). This is rooted in United States Environmental Protection Agency (USEPA)’s delegation of identification, determination, and enforcement for the Clean Water Act (CWA) Section 404 impacts associated with crossing 133 separate creeks, streams and wetlands.
General references: http://www.thc.texas.gov/project-review/national-historic-preservation-act
The Texas Historical Commission (THC) and the State Historical Preservation Office (SHPO) have both been involved, and are aware of the Trap Springs site, and numerous others along the route. Tribal authorities from the seven federally recognized Native American tribes have been involved, and are aware of this project. All of these entities have been consulted, as required by law, and separately consulted by the Big Bend Conservation Alliance – and all have issued the required approvals to proceed with the project, with no mitigation required.
A highly qualified archeologist, a specialist in the region, and a team of people did the survey work on this site, and submitted it to the THC, in hopes of gaining interim protection until the related bureaucratic processes ran their course, for permanent protection. The THC concurred that the site qualified as a State Archeological Landmark (SAL) and the landowners agreed to sign the nomination form which would have conveyed protection upon the site in perpetuity; it becomes part of the deed. It is the strongest protection afforded sites in the state; protecting them against any federal or state projects, or projects using state or federal funds, or private projects of almost any kind. It also restrains the landowner’s activities on the site. But one thing it does not stop is pipelines.
The archeological team pursued the nomination regardless, as a matter of elevating the site. However, it takes at least six months for nominations to be listed; two commissioner’s hearings that are three months apart.
Based on the nomination packet, including the site form, from documentation conducted by the archeologist, and a volunteer crew, the THC concurred it was eligible for listing, but they were unable to convey interim protection. Now the nomination packet must be revised to reflect the new pipeline easement. Since the destruction has taken place, Energy Transfer Partners (Trans-Pecos Pipeline, LLC) signature is required on the SAL form (unlikely). The only remaining alternative is nomination of the site as two parcels severed by the pipeline.
The fact is, this site qualifies not only as an SAL, but most definitely as a National Register Historic Property, under several criteria.
The following text is the USACoE response to a letter from the Big Bend Conservation Alliance, citing concerns with the Trans-Pecos Pipeline, specifically regarding what should be protected cultural sites:
“Historic Prope1ties and Archaeological Sites In conjunction with permitting requirements for the Trans Pecos Pipeline project, TAS, Inc. surveyed a 300-ft wide corridor for cultural resources at 97 potentially jurisdictional water crossings and 4 linear segments-totaling 8.4 miles. Several archaeological sites were identified and documented as a result of the TAS, Inc. investigation. As a result, and per recommendations provided to the applicant. the proposed pipeline right-of-way has been restricted or relocated in the vicinity of identified historic properties.
On April 6, 2016, the Corps submitted the technical report documenting the findings of the TAS, Inc. investigation to the Texas Historical Commission (THC) along with our
consultation letter. The THC concurred with the Corps determinations on May 20, 2016.
Pursuant to 36 CFR 800. 13, should previously unknown artifacts or cultural resource manifestations be encountered during construction, work would cease in the immediate vicinity of the resource. A determination of significance would be made, and consultation would take place with the THC to determine the best course of action.
District Engineers Decision Decisions by the Corps will comply with regulations and guidelines regarding the issues raised above.”
A subtle horror is embedded in this – as construction activities proceed all along the nominal 143-mile route of the pipeline, including right-of-way clearing, trenching, and activities that disturb surface and subsurface soils, virtually no monitoring is taking place. There is a lip-service procedure, where the project’s archeological consultant, a field survey member, walks along a few yards of the right-of-way/easement, looks at the surface of the ground here and there, then waves the equipment operators in, destroying, literally obliterating anything and everything in the path.
Note from USACoE’s response that only 8.4-miles of the entire 143-mile project were actually surveyed. This is the reality of what the landowners, and area conservationists are dealing with on the ground here in the Big Bend region. The notion that “…should previously unknown artifacts or cultural resource manifestations be encountered” is ludicrous – the process guarantees that nothing will ever be found, because the “pragmatics” of running a 700-hp forestry mulcher, equipped with a carbide-tooth rotary cutting head, managed by an operator eight-feet off the ground, who can’t see what he’s running over and turning into dust make it so.
The landowners have been protecting, and preserving this site for generations. Had it not been for the abuse of eminent domain, and condemnation of the property, the landowners would have been able to continue protecting this site through their stewardship. If Energy Transfer Partners, LP, and the operating entity, Trans-Pecos Pipeline, LLC hadn’t taken the easement by force, the site would still be intact.