PreservationNation

Written by Amy Cole and Ti Hays

More than 10,000 prehistoric rock art images exist in Nine Mile Canyon, which also contains sites associated with pioneer settlement and ranching history.

Utah’s Nine Mile Canyon has been the focus of National Trust for Historic Preservation advocacy efforts for nearly ten years due to the adverse effects from a series of natural gas development proposals on the canyon’s remarkable collection of prehistoric rock art sites. Today, the Bureau of Land Management (BLM) – the federal agency responsible for permitting oil and gas activities on federal land in and near the canyon – along with the Utah State Historic Preservation Office, the Bill Barrett Corporation, and a coalition of preservation groups that includes the National Trust will formally announce an agreement that will help protect the canyon’s significant resources from further damage.

More than 10,000 prehistoric rock art images exist in Nine Mile Canyon, which also contains sites associated with pioneer settlement and ranching history. Natural gas reserves are present in Nine Mile and on the adjoining West Tavaputs Plateau, where drilling has been increasing in recent years. The National Trust became concerned that drilling, increased traffic, and industrialization of the landscape associated with growing energy development were having negative effects on important cultural resources. In particular, dust and potentially harmful chemicals were being deposited on ancient rock art by oil and gas traffic that uses the canyon’s dirt roads. Infrastructure associated with natural gas development – compressor stations, pipelines, and staging areas – was also changing the canyon’s landscape setting. 

Beginning in 2001, the National Trust participated in the public review process under the National Environmental Policy Act for energy exploration and development projects near Nine Mile. Our advocacy efforts intensified in 2004 when the Bill Barrett Corporation began drilling exploratory wells on the West Tavaputs Plateau, which led to the currently-proposed development of up to 807 natural gas wells in and around Nine Mile Canyon. That same year, we listed Nine Mile Canyon as one of America’s 11 Most Endangered Historic Places. 

For a number of years, the National Trust worked with the Nine Mile Canyon Coalition, the Colorado Plateau Archeological Alliance, the State Historic Preservation Office, the National Park Service, and BLM to ensure that Nine Mile Canyon sites were listed on the National Register of Historic Places. We organized a field trip for National Register staff, helped to fund a National Register nomination, and participated in various meetings with partners to identify the best course of action for National Register designation of sites in the canyon. Happily, we can report that in December of 2009, 63 sites in Nine Mile Canyon – including sites from the prehistoric and historic periods – have been listed on the National Register of Historic Places.

We’re hoping that is just the beginning.

The National Trust also participated in a recent lawsuit over a decision by BLM to issue additional oil and gas leases near Nine Mile Canyon, which have led to even more potentially harmful truck traffic in the canyon. This lawsuit was ultimately successful when a federal court in Washington, DC sided with the National Trust and its conservation partners, ordering BLM not to formally transfer the leases. Secretary of the Interior Ken Salazar went one step farther in February of 2009 when he cancelled the leases after acknowledging that BLM had violated the law by issuing them.

Additionally, for several years, the National Trust unsuccessfully sought to be recognized by BLM as a consulting party under Section 106 of the National Historic Preservation Act (NHPA) for two oil and gas projects near Nine Mile Canyon, including the Bill Barrett Corporation’s West Tavaputs Project. Section 106 of NHPA requires federal agencies, including BLM, to consult with a variety of stakeholders to identify ways to avoid, minimize, or mitigate the adverse effects their projects could have on historic resources. BLM finally agreed to accept consulting parties for the West Tavaputs Projects in January 2009, and thanks to encouragement from Native American tribes and the National Trust, the Advisory Council on Historic Preservation formally entered consultation with BLM. 

Through the Section 106 process, the National Trust and many other groups have since been participating in year-long negotiations about the impacts the West Tavaputs Project could have on significant sites in and around Nine Mile Canyon. Furthermore, due to our efforts, BLM agreed to revise several important determinations required by the Section 106 regulations. BLM agreed that the project could potentially impact a larger geographic area than originally identified, and for the first time ever, acknowledged that oil and gas traffic in the canyon had the potential to adversely affect not only individual rock art sites, but also the landscape setting of those sites.

The outcome of these negotiations will be documented in the formal NHPA Programmatic Agreement that will be signed today. In short, the agreement calls for more archaeological surveys, National Register nominations for sites in the canyon, development of conservation treatments for rock art impacted by dust, continuing research into the effects of dust on rock art, and development of visitor interpretation sites in the canyon.

The National Trust is cautiously optimistic that the terms of the Programmatic Agreement will be beneficial to Nine Mile Canyon’s impressive collection of rock art and other significant resources, and that it will help mitigate the effects of the West Tavaputs Project. Once the agreement is signed, we will monitor its implementation and hope that it will serve as a model for other BLM projects in the future.

Learn more about Nine Mile Canyon, the West Tavaputs Project, and the Programmatic Agreement being signed today.

Amy Cole is a senior program officer in the National Trust’s Mountains/Plains Office. Ti Hays is a project attorney for public lands who is based in the same office. Both have been heavily involved in the National Trust’s efforts to protect Nine Mile Canyon and its fragile cultural resources over the past ten years.

Yesterday, the Washington Court of Appeals handed preservationists a decisive victory, flatly rejecting a concerted effort to derail Seattle’s historic preservation ordinance on vagueness grounds. Consistent with judicial precedent throughout the United States, the court dismissed the notion that a property owner has a constitutional right to know exactly what the law requires in every situation. Instead, it found Seattle’s landmarks ordinance to be fully constitutional, upholding both the process and standards applied by the city in acting upon applications to alter historic landmarks.

Relying on the highly-publicized decision from last winter, Hanna v. City of Chicago, the plaintiffs, William and Marilyn Conners, had argued that the city’s landmark board had violated their rights by applying unconstitutionally vague standards in their review and denial of their application to construct three new houses on the lawn of the landmarked Satterlee House. A three-story “Seattle Classic Box,” the 1906 house sits on the crest of a sloping, one-acre lot in West Seattle and faces west towards the Puget Sound.

In Hanna, the Illinois Appellate Court concluded that the criteria for designation of historic resources in Chicago’s ordinance were so vague that a person of common intelligence could not determine from the face of the ordinance whether a building or buildings may be deemed a landmark or historic district.

Significantly, the Washington Appeals Court never mentioned the Hanna case in its decision. Persuaded by court decisions in other jurisdictions, the court rejected the claim that the Secretary of the Interior’s Standards for Rehabilitation, the standards applied by the city’s Landmarks Preservation Board in ruling on applications to alter historic landmarks, were unconstitutionally vague. The court explained that the standards, although general, “gain specificity from application to a particular landmark and particular proposal.” Indeed, the court underscored the important role contextualized standards play in protecting historic landmarks, noting that “[b]ecause each landmark has unique features and occupies a unique environment, it is impracticable for a single ordinance to set forth development criteria or standards that could apply to every landmark.”

The National Trust for Historic Preservation filed an amicus brief in support of the city’s ongoing defense of the Seattle board’s decision last May. The National Trust’s brief had discussed the widespread and important practice of using contextual rather than prescriptive standards in the review of proposed alterations and new construction on historic sites, and explained why historic preservation does not lend itself to bright line, formulaic rules. It also pointed to the 42 court decisions in 24 states and the District of Columbia, which in contrast to Hanna, have upheld preservation standards against vagueness challenges.

The Pacific Legal Foundation filed an amicus brief in support of the Conners. The Washington Court of Appeals decision, Conner v. City of Seattle, is now available online.

- Julia Miller

Julia Miller serves as special counsel for the National Trust for Historic Preservation.

Written by Rob Nieweg

Today, the National Trust for Historic Preservation, local Friends of Wilderness Battlefield, and six individual residents of Orange and Spotsylvania counties in Virginia filed a lawsuit in the Circuit Court of Orange County to challenge the local government’s August 2009 approval of a 240,000-square-foot big-box development that will harm the historic Wilderness Battlefield and encroach upon the Fredericksburg & Spotsylvania National Military Park.

>> View the Official Announcement from the National Trust

The National Trust and its allies do not oppose economic growth in Orange County. In fact, we have offered to help Orange County plan for a sustainable balance of economic development and historic preservation at the gateway to the National Park.

However, if it’s built, the infamous “Wilderness Wal-Mart” project would quadruple commercial development at the intersection of Routes 3 and 20 and, thereby, compound earlier land-use planning errors at the gateway to the National Park. Inevitably, the project would open the door to more incompatible development, urbanize this vulnerable historic place, and undermine the visitor’s experience of the battlefield and National Park. Preservationists have made it clear that the consequences of Wal-Mart’s project will foreclose the National Park Service’s ability to properly preserve this nationally-significant site and to interpret critical events that changed the course of American history.

That’s why the National Trust and thousands of other concerned Americans have asked Wal-Mart to relocate its planned store to another site in Orange County but away from the battlefield and National Park.

Click here to view the official announcement, and please stay tuned to PreservationNation.org as we continue to monitor this important issue.

Rob Nieweg is the Director of the Southern Field Office of the National Trust for Historic Preservation.