Most businesses that work in a natural resource industry in Arizona are familiar with the requirements of the National Historic Preservation Act of 1966 (“NHPA”), and Arizona’s State Historic Preservation Act (“SHPA”). There are two reasons for that. First, the responsibility of landowners to protect cultural or archaeological resources applies on both Federal land and State lands, which comprise the vast majority of lands that natural resource industries utilize in Arizona. Second, no matter where you go in Arizona, or the southwestern United States for that matter, you are likely to encounter cultural resources.
For those who work in the cattle or mining industries, this means that for any project that disturbs Federal or State land – e.g., building a fence to keep cattle out of a streambed, installing a well to provide water for cattle and wildlife, or physically removing invasive species to restore native grasslands – you are required to assess the impacts of your project on cultural resources and actively mitigate against and/or preserve those resources. In most cases, this requires hiring a cultural resources consultant or reliance on a government agency to do the work. Some projects, depending on their proximity to cultural resources, will only require a “Class 1” survey that may potentially be completed primarily through research. Other projects may require a “Class 2” (field reconnaissance) or “Class III” (intensive field study).
Unfortunately, the multi-layered regulatory system for protecting important cultural resources is so complex, uncertain, and expensive to navigate, that the ability of industry to effectively and economically utilize public lands can be a challenge. For example, a project to remove pinon-juniper pine encroaching on native grasslands managed by the Bureau of Land Management (“BLM”) requires coordination and approval from BLM, may require hiring a cultural resources consultant, a survey of existing literature and documentation, field studies, development of a report, approval from the State Historic Preservation Office (“SHPO”), possible consultation with Tribal government(s), alteration of the project to avoid or mitigate against existing or discovered cultural resources (and subsequent re-review and approvals from all agencies), approval from the Arizona State Museum (“ASM”), and payment of fees to ASM for the curation of the report, data, and any artifacts that may have been recovered. If just one of the three agencies disagree with the process used to mitigate or avoid any cultural resources at any point, the process resets and often must restart from square one. It gets significantly more complicated when the project site includes both federal and State land where there may be inconsistent cultural resource compliance requirements across land ownership.
The difficulty of navigating the cultural resources requirements within a reasonable amount of time increases costs and may, in fact, prevent projects designed to protect or enhance the natural environment from being completed or even considered. These issues may warrant a closer examination of how the NHPA and SHPA are implemented in Arizona, and more broadly across the southwestern United States where Native American cultural resources are so prevalent. In the meantime, industries that utilize state and federal lands for their businesses should consider cultural resource compliance within their long-term strategies; failure to account for the time and costs associated with cultural resources review could have dire consequences.