Special Circumstances

Special Circumstances

The African Burial Ground is an example of an inadvertent discovery.

The Nationwide Programmatic Agreement (PA) signed in 2008 outlines protocol and procedure for the special circumstances of inadvertent discoveries and emergency actions. Parks' responses to the circumstances are different from the streamlined or standard review processes, but must involve consultation at the appropriate points.

Inadvertent Discoveries

For the purposes of the PA, inadvertent discoveries are historic properties that are encountered during an undertaking for which review had previously been conducted under Section III or Section IV of the PA. The Superintendent, in consultation with the Park Section 106 Coordinator and the appropriate members of the CRM Team, must make reasonable efforts to avoid, minimize, or mitigate adverse effects on historic properties found inadvertently.

Below is a recommended but general process to follow after an inadvertent discovery. Refer to state and local laws as well as regional policies and agreements to tailor the process to your circumstances. The Inadvertent Discovery Checklist (doc) may be altered to suit your needs.

Suspend work as needed to avoid further direct effects on the historic property. The Superintendent will make reasonable efforts to avoid or minimize harm to the resource until the requirements under the PA are completed.
The Superintendent, in consultation with the Park Section 106 Coordinator and appropriate members of the CRM Team, will make a preliminary determination of the National Register eligibility of the cultural resource in the most expeditious manner possible.
The Superintendent will notify the SHPO/THPO, federally recognized Indian tribes, Native Hawaiian organizations, and/or others, as appropriate, within 24 hours of the discovery or the soonest possible time, and protect burials for 30 days to complete consultation.
The Superintendent will ensure that a field evaluation is conducted by a qualified professional of the appropriate discipline within 48 hours of notification, or at the soonest possible time.
- If a Federal employee, the professional's qualifications are defined in Appendix E to NPS-28: Cultural Resource Management Guideline. For all others, the qualifications are outlined in the Professional Qualification Standards in the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation.
- During the field evaluation, include representatives of federally recognized Indian tribes, Native Hawaiian organizations, and/or others, as appropriate.
- The qualified professional will identify the historic property, evaluate its condition, and document it in writing, photographs, and/or drawings, as needed. Artifactual material recovered in the process, except for those believed to fall under the provisions of NAGPRA, will be accessioned into the park collections for curation.
- The result of the field evaluation(s) will be a preliminary determination of National Register eligibility. The Superintendent will seek the concurrence of the SHPO/THPO on this determination.
If the resource is believed to be a property of traditional religious and cultural importance and the initial field evaluation did not include the participation of federally recognized Indian tribes, Native Hawaiian organizations, and/or others, as appropriate, the Superintendent will notify the appropriate parties at the soonest possible time and offer to conduct a subsequent field evaluation with their participation. The Superintendent should also notify the Regional Ethnographer and the Regional Section 106 Coordinator at this time.
If Native American human remains or cultural materials that may fall under the provisions of NAGPRA are present:
- The Superintendent will comply with NAGPRA and ARPA.
- The Superintendent will follow guidance on Inadvertent Discoveries on Federal Lands (pdf). Additional guidance is found on the National NAGPRA website.
- The Superintendent will ensure that any human remains are left in situ, not left exposed, and remain protected while compliance with ARPA, NAGPRA, or other applicable Federal, state, and/or local laws and procedures is undertaken.

The Superintendent may conclude this procedure and notify federally recognized Indian tribes, Native Hawaiian organizations, and/or others, as appropriate if:

Disturbance of the historic property or property of traditional religious and cultural importance is minimal so as to have no effect on the historic property and the excavation or disturbance can be relocated to avoid the property, or
If the property is determined in consultation with the SHPO/THPO to be ineligible for the National Register.
Note that archeological resources that are not eligible for the National Register may still be protected under ARPA or NAGPRA.

If the property is eligible for the National Register or has not yet been evaluated for eligibility, and the undertaking cannot be relocated, the Superintendent will:

Consult with the SHPO/THPO, federally recognized Indian tribes, Native Hawaiian organizations, and/or others, as appropriate on National Register eligibility, and
If necessary, identify appropriate treatment measures in the most expeditious manner that minimize impacts to the property and to the timely completion of the undertaking.

What happens after the treatment? For all resources not governed by NAGPRA, appropriate consulting parties will be notified of all actions within a reasonable time after they are completed.

Inadvertent discoveries must be documented in the project file. This documentation may be via the "Assessment of Actions Having an Effect on Cultural Resources" form generated for the initial compliance actions on project.

Case Study: African Burial Ground, New York City, New York

The General Services Administration (GSA) proposed a construction site for the 290 Broadway Federal Office Building. During the planning process for the construction undertaking, an Environmental Impact Statement was prepared and archeological research performed, pursuant to Section 106 of NHPA and NEPA. A cultural resources subconsultant in 1989 determined that remains associated with the African Burial Ground might lay within the project's footprint and three areas were targeted for limited testing. The potential for preservation was considered fairly low.

The ACHP and GSA signed a MOA in March of 1989 that laid out a research design in compliance with Federal preservation law. When archeological testing in May of 1991 unexpectedly revealed intact burials at the rear of Lot 12, GSA adopted full archeological excavation as the mitigation strategy. Graves were found ultimately to extend from the former north-south leg of Republican Alley to the eastern extent of the project site. The initial documentary research, as well as analysis of subsequent test borings, had failed to adequately determine the full depth of fill - as much as 25 feet in the eastern area at Elk Street - covering the original site. The fill had protected hundreds of graves. Discovery of this level of preservation came as a surprise. Mitigation through full data recovery continued until July of 1992, when the field excavations were halted prior to the preparation of an acceptable research design and due to mounting public pressure.

For more information see African Burial Ground Final Reports and the park website.

Emergency Actions

Erosion under the Ipsut Creek Cabin caused an emergency that necessitated relocating the structure.

Emergency actions are one area in which parks may wish to create supplemental programmatic agreements to the Nationwide PA with SHPOs/THPOs. Emergencies are actions deemed necessary by the Superintendent as an essential and immediate response to a disaster or emergency declared by the President, a tribal government, the Governor of a State, or another immediate threat to life or property. Such actions will be consistent with the NPS Environmental Safeguards Plan for All-Hazards Emergencies (pdf), and any other approved servicewide emergency response plans. Emergency actions may result from activities by humans, animals, and insects; weather patterns, natural disasters, environmental changes, or other impacts. See the bottom of the page for sources of Servicewide and park-specific guidance on emergencies.

Park-Specific Planning

In accordance with NPS Management Policies (2006), Superintendents are required to develop measures to protect or rescue cultural resources as part of emergency preparedness and operations planning processes. Superintendents are further required to develop and maintain emergency operations plans. As part of this planning process, Superintendents should develop park-specific plans and/or programmatic agreements with SHPOs/THPOs and other partners in the Section 106 compliance process to further establish relevant emergency procedures for the treatment of historic properties.

Applicability

Emergency actions are only those actions required to resolve the emergency at the time. They constitute an expedited process that only applies to undertakings conducted within 30 days after the disaster or emergency has been declared. If the action requires work beyond the 30-day period, the Superintendent must seek an extension of the emergency period from the SHPO/THPO prior to the end of the initial 30 days.

Actions taken after the emergency is over, such as long term stabilization and repairs, are not emergency actions. Compliance for these undertakings must be completed in accordance with either the Streamlined Review Process or the Standard Review Process, as appropriate, as set forth in Sections III and IV, respectively, of the PA.

Procedures

If no process is established by a park-specific plan and/or programmatic agreement, the Superintendent in consultation with the Section 106 Coordinator and appropriate members of the CRM Team implement an expedited process to address emergency actions. The process is as follows:

Within 24 hours of the disaster or emergency, or as soon as conditions permit, the Superintendent will notify the SHPO/THPO, federally recognized Indian tribes, and/or Native Hawaiian organizations, as appropriate, of the emergency.
Within 48 hours of the disaster or emergency, or as soon as conditions permit, the Superintendent will determine the necessary course of action to minimize damage to potential and known historic properties and the potential for salvage of any historic property data. The Superintendent will at that time assign a cultural resource specialist to manage all documentation. The Superintendent or cultural resource manager will notify the SHPO/THPO, federally recognized Indian tribe(s), Native Hawaiian organization(s), or other necessary members of the public of the course of action.
When feasible, the Superintendent will consult with the SHPO/THPO, federally recognized Indian tribes, and/or Native Hawaiian organizations, under the following circumstances:
- Where subsurface disturbance over an area that has not been inventoried has occurred, either as a result of the disaster or the cleanup effort, archeological inventory will be limited to an examination to identify and evaluate exposed or damaged archeological sites, delineate site boundaries, and document their condition.
- If a known historic property is damaged, but the damage is minor, protective strategies designed to prevent further degradation will take place.
- In the event that the damage to a historic property is severe, and the historic property is listed, eligible for listing, or has not yet been evaluated for eligibility for listing on the National Register, a report will be prepared documenting the damage and the potential for salvage of features that cannot otherwise be preserved. Send the report to the SHPO/THPO and Regional 106 coordinator.
- Salvage is only desirable if stabilization or preservation is not feasible. If the potential for salvage is high, a research design will be prepared in accordance with the Secretary of the Interior's Standards and Guidelines for Identification and Archeological Documentation, NPS-28: Cultural Resource Management Guideline, NPS Director's Order 28A, Archeology, and other relevant guidance. The research design will be provided to the SHPO/THPO, federally recognized Indian tribe(s), and/or Native Hawaiian organization(s) for review and concurrence. They have seven working days to respond. Upon receipt of concurrence or lack of response within seven working days, salvage may proceed when normal conditions are restored. If there is little or no potential for salvage or if not possible, the damage will be documented in photographs, artifacts at the site will be collected and documented, and no further site investigation will take place. When complete, a copy of the documentation prepared shall be provided to the Regional Section 106 Coordinator, SHPO/THPO, federally recognized Indian tribe(s), and/or Native Hawaiian organization(s).
- If demolition of a National Register listed or eligible historic property is necessary due to life safety issues as the result of a disaster or emergency, appropriate recordation shall be conducted, which may include photographs of all exterior surfaces and interior surfaces, and elements that may be safely accessed and a written description of the historic property. Any photographs must be of archival quality and meet, at minimum, National Register documentation standards. When complete, a copy of documentation prepared shall be provided to the Regional Section 106 Coordinator, SHPO/ THPO, federally recognized Indian tribe(s), and/or Native Hawaiian organization(s).
- NHLs require special consideration in all emergency actions. If a National Register listed or eligible historic property is damaged, initial repair will include stabilization and protection from further damage. Rehabilitation or restoration may be undertaken at a later date in accordance with the PA when normal conditions are restored, and subject to availability of funds. Also, except in the direst of circumstances, an NHL should not be demolished without notifying the Secretary, the Federal Preservation Officer, and the Advisory Council.
If necessary, hire dedicated staff to tend to the needs of the project.
Appropriate consulting parties will be consulted on a formal or informal basis of the Superintendent's actions throughout the treatment process, as soon as possible.
Documentation of emergencies will occur via PEPC.
The Regional Section 106 Coordinator and appropriate consulting parties will be notified of the emergency and actions taken with regard to historic properties within 30 days after activities are completed.

Case Study: Flood at Ipsut Creek Cabin, Mount Rainier NP, Washington

On November 6, 2006, a flood created an emergency at the Ipsut Creek cabin. The flood relocated a section of the creek directly under the cabin, which in turn eroded away the ground beneath the central portion. As a result, the cabin straddled the new creek bed like a bridge. Click here to view photo albums of the 2006 flood emergency at the Ipsut Creek cabin.

The road to and from the cabin and natural glacial processes affecting the river further complicated emergency actions. Several major road washouts had made the road impassable by vehicle, so that cultural resource specialists had to hike to and from the site. A glacier-fed river had been depositing gravel in the river on an annual basis, resulting in a river bed that grew more shallow and more susceptible to flooding and redirection.

Cultural resource specialists at the site decided that the Ipsut Creek cabin would likely need to be relocated. Rehabilitating the cabin in its current location would keep it in the path of destruction for future flood events. They looked at possible options to relocate the cabin to higher ground out of the path of the river, then the park contacted the SHPO to alert them of the situation and the possible alternatives. The park historical architect next prepared an Memorandum of Agreement (MOA) to relocate the cabin. It included stipulations for documenting the cabin prior to its relocation and sending copies of the documentation to the SHPO and ACHP. The MOA was signed by the park, SHPO, and ACHP. The cabin was documented, dismantled, and temporarily relocated to a secure maintenance area. Individual elements such as doors and windows were taken to the shop and rehabilitated.

The final location of the cabin has not yet been determined. The selection of the new site is included in the EA for the Carbon River Road repairs (or closure) still in process.

Case Study: Earthquake at Puukohola Heiau NHS, Hawaii

At 7:07am, October 15th 2006, two earthquakes struck the Hawaiian Islands. Both earthquakes occurred off Hawaii Island's west coast, and were recorded at a magnitude-6.0 and M6.7. Over a period of 24 hours, the USGS Hawaiian Volcano Observatory (HVO) recorded over 80 aftershocks greater than M1.7. Hawaii, Maui, and O'ahu counties reported power outages, landslides, rockslides, and extensive damage to archeological, historic, and modern structures. Most of the damage occurred along Hawaii Island's north and west coast.

Within a day of the earthquakes the park was in contact with Hawaii SHPO staff to partner with any on-island cultural resource staff to assess the damage to significant resources. The process included NHL properties and properties on the State and National Registers, other than NHLs. Support to assess resources came from the private sector too - whomever was on-island helped document the widespread damage to historic properties.

The initial documentation aided the park as staff consulted with Native Hawaiian organizations and individuals in the aftermath of the earthquakes. The documentation also aided the Park in securing funds and moving forward with hands on work within a 6 month period after the earthquakes. A draft preservation plan was written that identified the properties affected and the proposed actions to be taken at each property. Letters to the SHPO and the ACHP were drafted and sent that included the draft preservation plan and a promise to have a qualified archeologist on site to manage the work crews and document the effort of rehabilitation.

More Information

The NPS National Center for Preservation Technology and Training maintains a comprehensive list of tools, information, and guidance on emergency planning and response.

The Primer on Disaster Preparedness, Management and Response discusses how to plan for, salvage, and care for paper objects in emergencies, such as fire, flood, and earthquake.

Chapters on Emergency Planning for museums are in the Museum Handbook.