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Activating Legal Protections for Archaeological Remains

Activating Legal Protections for Archaeological Remains



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Published by Anna_Naruta
How-to guide for activating the strong legal protections for archaeological remains that currently exist under the California Environmental Quality Act.

The historical and archaeological study of the Chinatowns and early development of Sacramento, San Jose, Los Angeles, Riverside, and Oakland is full text available online at http://naruta2006.blogspot.com/

Additional supporting documents, video, press at http://UptownChinatown.org

How-to guide for activating the strong legal protections for archaeological remains that currently exist under the California Environmental Quality Act.

The historical and archaeological study of the Chinatowns and early development of Sacramento, San Jose, Los Angeles, Riverside, and Oakland is full text available online at http://naruta2006.blogspot.com/

Additional supporting documents, video, press at http://UptownChinatown.org

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Categories:Types, Research, Law
Published by: Anna_Naruta on May 29, 2008
Copyright:Attribution Non-commercial No-derivs


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Activating Legal Protections for ArchaeologicalRemains of Historic Chinatown Sites
Lessons Learned rom Oakland, Caliornia
(Original Title: Rediscovering Oakland’s San Pablo Avenue Chinatown)
 Anna Naruta
hile state law protects archaeological resources, amajor redevelopment project planned or the siteo one o Oakland’s earliest Chinatowns showedcommunity members they had to struggle to get the devel-oper to meet their legal obligations. This paper discusses aew o the lessons learned in activating legal protections orunique and signicant archaeological sites. ACTIVATING LEGAL PROTECTIONSThe Caliornia Environmental Quality Act (CEQA) notonly protects historic buildings and landscapes, it protectsunique and signicant archaeological remains.
City Plan-ning departmental reviews o whether a development projectwill adversely impact the environment are thereore legallyrequired to assess potential “impacts” to historic buildingsand potential archaeological remains. I the project willimpact a resource, and the impact cannot be avoided, theproject is required to “mitigate” the impact in a manner thatcompensates or the damage to or loss o an irreplaceable cul-tural resource. In designing mitigations, the guiding principalis that ater the project is complete, the mitigated resourceshould be at least equal to the resource that was destroyed.For a potentially unique and signicant archaeological site, i a project cannot be designed to avoid impacting the site, thesite must be studied and excavated by a qualied archaeolog-ical team, an extensive report published, and the archaeolog-ical documents and artiacts curated in a permanent reposi-tory accessible to researchers.That’s the theory, anyway. But when a national develop-ment corporation started the Environmental Impact Reviewprocess or a project that would redevelop the site o oneo Oakland’s earliest Chinatowns, we ound there’s nothingautomatic about the process o assessing and mitigating aproject’s impacts. It’s up to community members to activatethe legal protections or signicant cultural resources.In our case, the site was what long-time OaklanderEdward Chew records as the site o the “‘ocial’ Chinatown”o the late 1860s and 1870s, created along San Pablo Avenuenear today’s 20th Street. Chew writes that this Chinatown wasestablished ater city authorities reused to allow the rebuild-ing o the rst “‘ocial’ Chinatown” on Telegraph near today’s17th Street, ater it was destroyed in a re. The next year, theCity extended its main street, Broadway, northward throughthe ormer Chinatown site. The dislocations continued; resi-dents o the San Pablo Avenue Chinatown were “consigned”to live at the City’s industrial south shore, and the Charter Avenue Chinatown site (today’s Grand Avenue) resulted roman 1880s redevelopment o the San Pablo Avenue Chinatownsite. Very little is known o these historic Chinatown sites,although their existence is well established through a ewmentions in historic newspapers and the ederal census. Thepaucity o inormation about the Chinatowns underscores thelegal signicance o any potential archaeological remains.
  While the drat Environmental Impact Report or the proj-ect acknowledged that the project area had a high likelihoodo containing archaeological remains o the historic China-town, it initially made no provision or archaeological study.Instead, the only “mitigation” was to have archaeologicalmonitoring during construction. This procedure usually ailseither in adequately mitigating the archaeological resource orin keeping the project on schedule, or—most requently—both.
A pre-construction archaeological study was essentialor the developer to be able to meet the legal protections orpotentially unique and signicant archaeological remains.To activate the legal protections, community membersspent countless hours spreading the word about the archaeo-logical issue, calling and writing City Council members, andspeaking at public meetings. Recognizing the importance o the potential archaeological site, the City Council adopted arequirement or a ull pre-construction archaeological studyinto their agreement with the developer. The mitigation mea-sures that the City Council adopted incorporated a publicreview process or the archaeological testing and treatmentplan, speciying that the City would seek comments on thedrat archaeological treatment plan rom “established localChinese-American organizations, including the Chinese His-torical Society o America and the Oakland Asian CulturalCenter.”
  While it was hard won, the public review procedure wasnot an extraordinary measure. In terms o how local govern-ments conduct Environmental Impact Reviews, seeking pub-lic comment on the archaeological testing and treatment plan2C Paper
Chinese America: History and Perspectives – The journal of the Chinese Historical Society of America
merely brought the proposed archaeological mitigation planinto the same sort o public review process routinely under-taken or proposed mitigations to impacts on historic build-ings, trac patterns, or air or water quality.The remainder o this paper shares lessons we learned inthis process.METHODS MATTERIn the world o cultural resource management, doing a “pre-construction archaeological study” can mean virtually any-thing. Some methods to discover existing intact historicalarchaeological remains are proven to ail but are still com-monly used in legally mandated studies. One example o aninvestigation method proven to ail is geotechnical soil boresor auger testing. This method may be appropriate or dis-covering sites such as Native Caliornian shellmounds, sitesthat are meters deep and wide. But these soil bores are likelyto miss remains o sites such as early U.S.-period Caliorniatowns. Another method, backhoe trenching, tends to dis-cover archaeological remains simultaneous with destroyingthem, or, at best, while removing signicant contextual datathat is required or archaeological interpretation.
 Mechanical methods can be employed to good eect, how-ever. A backhoe with a fat-edged bucket can be an eectivetool that allows archaeologists to rapidly expose a wide areao historic soil at one time and excavate by hand when poten-tial archaeological remains are encountered. Such “areal” or“horizontal” excavations provide the archaeologist with a bet-ter chance to observe the relationships between archaeologi-cal deposits and to orm a discovery method that is ecient,cost eective, and appropriate to historical archaeologicalremains. An additional actor that can determine whethereective archaeological interpretations o the site will be pos-sible is whether there is adequate observation and record-ing o geomorphological data. This is the data that speaks towhen and how the archaeological deposits were created andlets those o us who were not on-site or the excavations “see”what the site looked like.
  Whether the archaeological study would conduct thehistorical research necessary to perorm an adequate assess-ment proved to be another issue. We ound that contractingarchaeologists did not necessarily utilize the basic set o his-toric documents that could reveal early land uses. Instead o conducting basic land-use research using documents such asproperty records, chains o title, and the ederal census, con-tractors requently relied on historical accounts ound in sec-ondary and tertiary sources as well as maps that post-datedthe time period or which legally-signicant archaeologicalremains may exist.
In the uture, mitigations may need tospeciy either the general scope o landuse research requiredor specically name documents and records that must bestudied.SELECTING A “QUALIFIED ARCHAEOLOGIST”The Secretary o the Interior provides standards or whocan be considered a “qualied archaeologist.” The standardsrequire that the archaeologist have a proven track record o bringing archaeological work rom excavation and analysisthrough completing the nal stage, public reporting. Theseare minimum standards. It’s also relevant to ask how a partic-ular contractor meets the Secretary o the Interior’s standardswith regards to archaeology o a site associated with historicChinese Americans. Relevant questions include: (1) whatexperience the archaeological contractor has in the archaeol-ogy o that region; (2) whether the contractor has demon-strated ull completion o projects on historic sites associ-ated with Chinese Americans; (3) whether the contractor hasqualied Chinese Americanists on sta or will consult withqualied Chinese Americanists during all phases o the study,and not merely at the end o the project; and (4) whether thecontractor has a proven track record o completing and ullyreporting basic analysis and cataloging o materials.
 OVERSIGHTReview o an archaeological treatment plan is analogous tothe established city planning procedures o design review ornew construction projects, or a Landmarks Board review o proposed alterations to a historic site. Despite this establishedprecedent, City oversight o the archaeological process doesnot seem to be as rmly established. We ound an impor-tant question to be whether the City’s reviewing agency, suchas planning sta or a Landmarks Board, has archaeologicalexpertise available, or whether the State Historic PreservationOcer may need to be called on to review the mitigation planor adequacy. As our City government does not have a sta archaeologist or archaeological expertise represented on theLandmarks Board, public participation in review o the planormed an essential step in helping the project meet CEQAguidelines or adequate treatment o potential archaeologicalresources.
 Oversight o the nal archaeological plan and in-progressarchaeological project is an area where the mitigation mea-sure language ailed. In this language, the oversight role isassigned to an entire City agency, the Community and Eco-nomic Development Agency. A particular overseeing sta member should have been named. The consequences are nottrivial—to date we are still awaiting response regarding whoat the City is overseeing the project to ensure compliancewith CEQA and the adopted mitigation measures. A concurrent redevelopment project made clear that themitigation measure language should be altered to ensure bothaccountable oversight and a better procedure or communityparticipation. This redevelopment project impacted an area
 Anna Naruta
Chinese America: History and Perspectives – The journal of the Chinese Historical Society of America
that was the site o either the immediate neighbors o theChinatown or the historic Charter Avenue Chinatown itsel.Community research demonstrated the existence o the Chi-natown, and the contracting archaeologist concurred the sitewas likely to contain historical archaeological remains. Withcommunity members advocating or the potential archaeo-logical remains, the developer at the last minute voluntarilyadopted mitigation measures that seemed to be identicalto those adopted or the San Pablo Avenue Chinatown site.The developer agreed to a ocused community review o thearchaeological study “prior to construction” and addition-ally called or stopping all work and allowing archaeologicalevaluation i a single archaeological artiact was discoveredduring construction.
 In this case, that the community review o the archaeolog-ical plan was slated to happen “prior to construction” insteado “prior to any removal o oundations or other ground-dis-turbing activities” meant that it never happened. Instead, thework demolishing the existing historic structures fowed intoremoving soil in preparation or the new construction. Aterthe buildings were demolished, earthmoving equipment wasbrought in to stir up and then compact what was euphe-mistically called the project area’s “unconsolidated historicll”—that is, the potential archaeological site. By the time theproject hit the mitigation measure’s trigger, the commence-ment o construction, there was likely no intact site let. Thearchaeological monitoring plan, which required construc-tion workers to call a halt to the project i an historic arti-act was ound, also ailed. Although casual observation o the project area showed the demolition and other ground-disturbing work exposed buried historic items, and thereorewould have triggered an archaeological assessment withintwenty-our hours, an archaeologist was never summoned. Itmay never be known i unique and signicant archaeologicalresources were destroyed.
 CURATIONSince the intended goal o mitigations is that the culturalresource remaining at the end o the project is at least equalto the cultural resource that existed beore the project, CEQAguidelines have been amended to specically state that i the impact cannot be avoided, mitigation measures caninclude curation o the resultant archaeological collection.The mitigation measures adopted or the San Pablo AvenueChinatown unortunately have let the curation stage o thearchaeological collection as something yet to be negotiated. Adequate curation poses a challenge. Facilities that curatearchaeological collections in accordance with the State o Cal-iornia’s “Guidelines or the Curation o Archeological Collec-tions” routinely charge $1,000 per each cubic oot (a bank-ers’ box worth) o materials. Even so, most such acilities areno longer accepting new collections due to lack o space. Thesolution or the nal curation plan should be specied in themitigation measures.
 PROACTIVE STUDY Activating legal protections or the rediscovered San Pablo Avenue Chinatown highlighted the need or urther workthat could identiy existing cultural resources relating toCaliornia’s Chinese heritage beore they might be threatenedby redevelopment. Hometown Oaklander Kelly Fong, then asenior in archaeology at the University o Caliornia, Berke-ley, conducted a volunteer research project to identiy urtherhistoric sites associated with nineteenth- and early twentieth-century Chinese Oaklanders. Fong compiled the lists o Oak-land Chinese businesses rom three sources: the
1882 WellsFargo Directory o Chinese Business Houses
; the rst one hun-dred Oakland Chinese Merchant Partnership case les gener-ated as part o the enorcement o the Chinese Exclusion Actand now preserved at the National Archives, San Bruno; andthe businesses, residences, and other establishments labeledas “Chinese” on the surviving volume o the 1889 SanbornFire Insurance Company map o Oakland. She produced adatabase o early Chinese businesses by street address, andplotted the locations on a map. The results not only expandideas about early Chinese Oaklanders, demonstrating thatmany early Chinese Caliornians lived and worked outside o established Chinatowns, but also provide a rst step in pro-actively protecting historic buildings or potential archaeolog-ical remains associated with these sites. The results o Fong’sstudy are on le with the City o Oakland’s Cultural HeritageResource Survey, where the inormation will be included inuture city planning assessments.
Placing such studies in theregional governmental repository or archaeological records(such as the Caliornia Archaeological Site Survey NorthwestInormation Center) can increase the likelihood the data willbe incorporated in Environmental Impact Reviews.CONCLUSIONOur experience with activating legal protections or signi-cant potential archaeological resources taught us a number o lessons. Mitigation measures should spell out the who, what,where, when, and how o all steps in explicit detail. Long-term curation procedures, i applicable, need to be addressedas part o the project’s initial Environmental Impact Review. We demonstrated that public review by community mem-bers and other archaeological practitioners provides a betteropportunity or planned mitigations to meet legal obligationsor protecting signicant cultural resources. Our experiencealso highlights the current gap in standards or and oversighto archaeological projects, at both the local and state level.Perhaps most o all, our experience highlights the need or
 Activating Legal Protections or Archaeological Remains o Historic Chinatown Sites 121
Chinese America: History and Perspectives – The journal of the Chinese Historical Society of America

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