Signs of ancient life are everywhere in New Mexico. Consider the Galisteo Basin, just outside the city of Santa Fe, where hundreds of archaeological sites blanket the ground. These range from drawings etched hundreds of years ago onto boulders and scatters of flaked stone—where someone sat and chipped a tool, leaving behind bits and pieces of rock—to entire villages and sacred ceremonial structures.
“Large numbers of people moved into the basin and built eight large pueblos; there are many hundreds—if not well over 1,000—rooms in each of these pueblos,” David Eck, trust land archaeologist with the New Mexico State Land Office, says. “So you’re probably talking about a population of a minimum of 10,000 to 12,000 people scattered across the basin, farming the whole basin.”
The eight pueblos were built in the very late 1200s or early 1300s; people lived there until around AD 1500 when the weather became drier and warmer—“and it became hard to make a living,” Eck says. Half of the sites, he adds, were no longer occupied when the Spaniards arrived in the 16th century; the sites bear no signs of chapels, churches or other religious structures associated with the Christianity of the Spanish world.
One of the pueblos, Pueblo Blanco, was partially excavated by an archaeologist from the American Museum of Natural History during the early part of the 20th century. In 1981, it was placed on the State Register of Cultural Properties—a list of archaeological sites considered important or special enough to be preserved.
Nonetheless, Pueblo Blanco was in danger of being destroyed: Pothunters had looted portions of the pueblo and, most alarmingly, a small arroyo running through the site was eating away at the structures, revealing burials and destroying valuable data that might one day be studied to learn more about the people who once lived here.
Three years ago, the state land office appropriated $50,000 to protect Galisteo Basin archaeological sites. At Pueblo Blanco, archaeologists and engineers stabilized the site, building retaining walls and backfilling dirt over exposed areas. They restructured a portion of the drainage to stop more archaeological remains from washing downstream. Eck describes the work as a “really good example of what we’ve been doing,” and Assistant Commissioner Kristen Haase says the State Land Office spends $50,000 to $100,000 each year on archaeological projects.
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.”
It’s nearly impossible to walk across any substantial tract of land in the state without spotting—or treading upon—archaeological resources, according to archaeologist Meade Kemrer. In fact, archaeologists have found and documented more than 160,000 sites in New Mexico. These include everything from prehistoric American Indian campsites to historic buildings, Spanish-era churches and even important roads or trails.
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.”
While the federal government oversees more than 40 percent of the lands in New Mexico, the State Land Office holds in trust 9 million surface acres and 13 million acres of mineral rights. Revenues earned from leasing those lands fund public schools, as well as hospitals, correctional facilities and certain water projects in the state.
The majority of that cash comes from oil and gas development; in the second quarter of 2009, oil and gas leases generated $170 million for the office. The action begins on the third Tuesday of each month when the State Land Office holds an oil and gas leasing auction.
The list of lands for lease, Eck says, is published before the sale and anyone can bid on the parcels, which are determined by the office or else nominated by industry. “Once the auction is over and the check passes from the hands of the bidder to the land office, they hold the lease,” he says. Unlike those who drill on federal lands, however, operators on state trust lands are not expected to consult with archaeologists.
Some leasees do contact him for guidance, he says. When that occurs, he instructs them to undertake a cultural resources survey. But Eck does not hear from many of the leasees and they are not obligated to contact his office before beginning work. In a follow-up e-mail, he estimates that between 10 and 20 percent of the leasees operating on state trust lands approach him for guidance and subsequently undertake archaeological surveys. He imagines the rest simply begin work without clearance—though he points out there is an “admonishment” in leases requiring operators to stop if they detect the presence of cultural resources and to immediately notify the State Land Office.
It’s obvious Eck cares about archaeological resources. But without coherent state laws in place (and charged with overseeing resources on some 13 million acres himself) it’s also clear that archaeological resources across the state are being threatened, lost and destroyed.
Many archaeologists, including Seymour, who owned a contract firm for many years, have firsthand knowledge of sites being destroyed on state trust lands. If operators aren’t required to complete an inventory, she asks, how will they know sites are there? And if the sites aren’t officially recorded, she points out, operators aren’t required to avoid them.
“I have seen some incredible sites that have been damaged or destroyed on projects that under other jurisdictions would have required archaeological survey and avoidance or mitigation of the impacts,” she writes in an e-mail, adding: “We are not just talking about flaked stone scatters, we are talking about major habitation sites, some stratified, some as valuable as any now listed on the National and State Register of Historic Properties.”
Former archaeologist Jim O’Donnell agrees. “It seems there is a big hole to fill when it comes to our knowledge of archaeological resources on state lands,” he says.
O’Donnell recalls a particular energy project he was surveying for in the Indian Flats near Carlsbad. According to O’Donnell—today a public lands activist—“When we came to the boundaries of state land we just hustled through because we weren’t required to survey them.” That’s a disgrace, he says: “Archaeological sites on state lands deserve at least the same protection as sites on federal lands; they deserve the same respect, care and consideration.”
Not only that, but expecting oil and gas workers or construction personnel to self-report archaeological resources—knowing full well that their identification will mean time delays and additional costs—is dodgy.
Seymour points out that in most instances, companies are unlikely to stop work or report the destruction of resources. And while Eck says that companies that do disturb, damage or destroy cultural resources are liable for those damages, he agrees that the oversight is left to leasees themselves. “I won’t live long enough to see every section of state land, let alone every acre, so I am reliant on others to report their activities and observations,” he says. “They are in a position of self-reporting: what they see and encounter and how they behave.”
Not all state offices leave developers to their own devices.
When undertaking any projects involving federal, state or private lands, the New Mexico Department of Transportation takes into account all archeological resources, not just those that are already listed for protection on the state or national registry, according to Blake Roxlau, the department’s cultural resources & archaeology program manager.
The transportation department has employed its own archaeologists for approximately three decades; today, seven employees manage the cultural resources program, which includes archaeology, historic buildings and consultation with local American Indian tribes.
According to Roxlau, during the last fiscal year, the agency conducted or required about 155 archaeological projects, investing some $2.2 million. Most of the projects were funded by the Federal Highway Administration, the state of New Mexico or private companies, such as utilities.
During that time, 97 archaeological sites were recorded, as well as a number of historic buildings. Most of the sites were protected during construction, he says, although 19 sites that could not be avoided were excavated and studied.
Roxlau points out that since much of the department’s work is federally funded, it has been required to “identify, protect or mitigate impacts to archaeological resources” since passage of the National Historic Preservation Act in 1966. New Mexico, he says, along with other states, developed archaeological programs within their transportation departments in order to manage and comply with federal laws. State regulations were enacted later, he says—“and the requirements of those statutes were incorporated into the already existing cultural resources management infrastructure.”
In other words, the agency treats all archaeological resources the same—and by the standards of federal laws—regardless of the land’s jurisdiction.
And it’s not only archaeological resources that are considered, Steve Koczan, who worked in the department’s cultural resources department from 1981 until 1999, says: “It’s the entire environmental process, and things like engineering, location study procedures,” he says. “There is an entire umbrella of federal regulations that come with that federal money.”
Former State Land Office Commissioner Jim Baca says the shortcomings with archaeological resources in the State Land Office reflect larger philosophical questions.
“The problem is the State Land Office is still operating in the 1950s, and everything has gone backwards now for the last six or seven years with this guy that’s in office,” he says, referring to Land Commissioner Lyons. “He’s really returned it to the ’50s, with state lands being a grab bag for industry. And I’m being really serious about that. Whether it’s the real estate industry, the oil and gas industry, the mining industry—they’ve really regressed in the way they’re planning on state lands, and that includes archeological sites, fish and wildlife, groundwater protections—it’s just awful.”
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.”
The devil is in the details when it comes to protecting cultural resources on state lands—so says Deputy State Historic Preservation Officer Jan Biella.
Archaeological resources on federal and state lands are treated differently because different laws apply, she says. And not only are those laws very different, but people have different interpretations of the state law. Despite criticism of the land office’s practices, neither its staff nor leasees are doing anything illegal.
Biella has worked as an archaeologist in New Mexico since the mid-’70s. Prior to working at the Historic Preservation Division, she worked for two different federal agencies as well as within the private sector. Just as the State Land Office’s Eck does, Biella and her staff advise leasees to look before they leap. “We suggest the survey is the best way to avoid inadvertent damage,” she says. “But we don’t have regulations in place that require it.”
The easiest way to rectify those differences is through a change in statute, she says. Addressing such variations in how different agencies treat the exact same resources would also simplify the process for everyone involved. It’s likely the public would support it as well.
There is something deep and compelling about the public’s connection with archaeological resources, whether those remains are of American Indians, the Spanish or those who settled across the state in the 19th century. “They put us in context through time…and I think the study of them tells us something about ourselves as human beings,” Biella says. “We don’t just live in the moment. We live in a much longer moment than that.”
That historic knowledge can be preserved for the present and the future generations, she says, but, “if we just allowed development to happen and there were no protections, then that’s lost. [Cultural sites] are irreparable and irreplaceable.
She adds: “I think it is that kind of thing that people instinctively get. I think they understand that there is something just inherently interesting about the people who came before us.” SFR