NMSLO & Archeological Resources; Legislation

...But not everyone believes the State Land Office is properly overseeing the thousands of archaeological resources on state lands. As a result, archaeologists say, history is being lost.

Under New Mexico law, sites on state lands are not afforded the same protections as those on lands owned by federal agencies such as the US Bureau of Land Management, National Forest Service or National Park Service. A bill before the state Legislature, if passed, would create more stringent oversight regardless of jurisdiction.

Critics say the State Land Office is in particular need of such oversight.

While Land Commissioner Pat Lyons maintains there is no destruction of archaeological sites, of the estimated 250,000 such sites on state lands (according to the State Land Office’s Web site), fewer than 5,000 have been identified and documented.
Furthermore, the State Land Office does not require its leasees to survey for cultural resources before breaking ground on projects. As a result, New Mexico Archeological Council President Deni Seymour writes in an e-mail to SFR:

“Many important archaeological sites are damaged or destroyed, without being recorded or studied.” She adds: “It is sad and it is surprising that a state agency does not see the discovery and protection of cultural resources as part of its obligation and fiduciary responsibility.”...

...Thanks to federal laws such as the National Historic Preservation Act of 1966 and the National Environmental Policy Act of 1969, a company must hire archaeologists before beginning a project—whether for energy development or, say, the construction of roads, pipelines or transmission lines—that is on federal lands or funded by federal money.

Before the start of a project, these contract archaeologists check state records to learn if sites have already been documented in the area; they then conduct foot surveys to identity remains in the proposed project area.

Under the guidance of the state historic preservation officer’s staff at the Historic Preservation Division, they then determine if a site is worthy of listing on the State Register of Cultural Properties or the National Register of Historic Places.

Because the process for nominating a site to the registers is costly and time-consuming, sites on federal lands are protected—which generally means avoided—if they are deemed “eligible” for listing on either of those two registers. Sites that cannot be avoided during construction are excavated and studied—all at a cost to the company. It’s common, therefore, for developers to adjust their plans—shift the location of a well pad or re-route a road—and avoid archaeological sites whenever possible in order to save money and avoid time delays.

When it comes to state, county or private lands, however, those federal laws don’t apply unless certain things are found—such as human remains—according to Samantha Ruscavage-Barz, a former archaeologist and now a staff attorney for Advocates for the West.

And while there are three New Mexico state laws pertaining to the protection of cultural resources on state lands, these laws are not nearly as clear-cut as the federal laws. In fact, they leave much open to interpretation.

State laws direct agencies to consider only those archaeological sites already listed on the registers, Ruscavage-Barz says. Federal laws, on the other hand, protect sites considered “eligible” for the registries.

If a site hasn’t been listed—or archaeologists have not surveyed an area to determine what resources are present—a state agency can approve a project without having any idea if cultural resources are present. Of the 160,000 archeological sites documented statewide, only 2,000 are listed on the state registry.

“So, we don’t know what’s being lost because we don’t know the full universe of historic properties that are out there,” Ruscavage-Barz says. “We only know what is listed on the state or national register—and that, of course, is a very small subset of potentially eligible sites that are out there on the landscape.”...

...Aside from the political and ideological disagreements Baca may have with Republican Lyons—who defeated Baca, a Democrat, during the 2006 election—the system is indeed antiquated.

“The way the constitution [defines it], the State Land Office exists to make money for the permanent fund for schools,” Baca says. “There’s nothing wrong with that, but this is almost 2010, and we’re operating with a constitution that didn’t take into consideration environmental issues, archaeological resources and other sorts of things that you should consider. It’s not just about making money. In the past it may have worked for us, but now we know better, OK?”

Amendments to the state’s constitution are necessary for reform, Baca says. “We need to change the constitution so that conservation is [considered] a beneficial use on state land—you don’t have to make money from every square acre of land. Some land should be preserved and not used at all,” he says. “But besides making conservation a real and practical use on state trust lands, we also need to have a land board put over the land commissioner.”

An oversight board, Baca says, wouldn’t interfere in day-to-day operations such as oil and gas leasing or grazing permits, but would have veto power over permanent land sales or trades—such as those occurring with regularity along the outskirts of Las Cruces.

Lyons, however, denies sites are being destroyed. “Our laws are a lot more stringent than the federal laws so, as a result of that, nothing gets done in the state [and] we lose a lot of money for education,” he says.

When asked if lessees are expected to conduct archaeological surveys before breaking ground on state trust lands, he answers that most companies rely upon their own staff. “Well, let’s say you’re ConocoPhillips, which is our largest producer: They look at every site before they drill. They send their guys in-house that [are] trained, and they go out and look [at the sites],” he says. “Now, that may not meet [the Historic Preservation Division’s] stringent standards—where they have to have hired somebody that’s been certified by their arch union or whatever it’s called—but they do every site. And if they find something, they flag it; they let people know.”

That wouldn’t be sufficient oversight, under a bill proposed by state Rep. Gail Chasey, D-Bernalillo. If passed, the New Mexico Consolidated Environmental Review Act would ensure that every proposed project, regardless of jurisdiction issues, be subject to environmental and archaeological reviews.

HB 520 would require companies proposing projects on state lands—or using state funding—to complete environmental studies similar to those conducted under the National Environmental Policy Act.

The idea for the bill came after a company planned to build a cement plant across from an elementary school in Albuquerque’s South Valley. There were no laws that required the environmental impacts of the project be evaluated—despite its proximity to the school and potential for pollution—because it was not on federal land or being built with federal funds.

“Any number of [projects] have come up in recent years that have focused our attention on the fact that there is really no requirement whatsoever for state or local governments or state agencies to look at environmental impacts when evaluating certain projects,” she says. “[The Consolidated Environmental Review Act] would put something like this in place.”

Such a law also would mean that archaeological resources overseen by all state agencies would receive the same care they do on federal lands, according to Advocates for the West’s Ruscavage-Barz. “I think it’s a good opportunity to address some of the shortcomings in the state cultural property acts,” she says. “And this would be an opportunity to try to have some sort of requirement for survey on state trust lands, for example, because you would have to be looking for potentially eligible properties as well as making sure there are no listed properties within your project area.”...