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Archive of Prominent Section 106 Cases:
Fall 2000

Introduction

Arizona-Nevada:
Hoover Dam Bypass

California:
U.S. Courthouse
(San Diego)

California:
Yosemite Valley Plan

California:
Letterman Project
(San Francisco)

California:
Long Beach Naval Station

District of Columbia:
WWII Memorial

Georgia:
Fort Benning

Louisiana:
Industrial Canal Lock
(New Orleans)

Minnesota-Wisconsin:
Stillwater Lift Bridge

Pennsylvania:
Philadelphia Naval Hospital

South Dakota:
Francis Case Reservoir

Virginia:
Chancellorsville Battlefield

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South Dakota: Drawdown of Francis Case Reservoir

Agency: Army Corps of Engineers

Criteria for Council Involvement:

  • This project was initiated without consultation under Section 106 and the Councilís regulations or adherence to an existing Programmatic Agreement with the Army Corps of Engineers for management of the Missouri River Mainstem Reservoirs (Criteria 2 and 3).

  • The Yankton Sioux Tribe, which attaches religious and cultural importance to the White Swan Burial Ground, requested that the Council become involved (Criterion 4).


Recent Developments

At their June 2000 business meeting, the Council membership determined that the Omaha District of the Army Corps of Engineers (Corps) had foreclosed the Councilís opportunity to comment on the 1999 drawdown of the Francis Case Reservoir and the resulting effect to the White Swan Burial Ground. The Council also decided to terminate the existing Section 106 Programmatic Agreement (PA) for operations and management of the Francis Case Reservoir and five other Missouri River mainstem reservoirs.

On July 17, 2000, Chairman Slater sent a letter to the Secretary of the Army notifying him of the Councilís finding and decision. In addition, the letter notified the Secretary that the Council will participate in Section 106 review of all undertakings by the Omaha District for a period to be determined by the Council.

In September, the Army conveyed to the Council the Corpsí response to the foreclosure finding. The Corps claims difficulty in understanding how the Council could reach a foreclosure finding since the eligibility of the White Swan Burial Ground for the National Register of Historic Places remains unresolved, claiming that neither the State Historic Preservation Officer (SHPO) or the interested Indian tribes provided compelling reasons for considering it eligible.

This does not address, however, the Corpsí responsibility to ensure that the issue of eligibility was resolved prior to proceeding with the drawdown. In addition, the Corps argues that the Council is authorized only to withdraw from the terms of the 1994 PA and attempt to renegotiate it, not to terminate it. The PA states, however, that the Corpsí failure to comply with the terms of the PA necessitates a return to individual case review under the Councilís regulations.

The Council does not plan to reconsider its foreclosure finding, as requested by the Corps, but is drafting a response to the points raised in the Corpsí correspondence.

Background

In late January, 2000, the Yankton Sioux Tribe requested Council assistance with a Corps drawdown of the Francis Case Reservoir on the Missouri River in southern South Dakota. The lowering of the water level, conducted to provide water storage capacity for scheduled upstream releases from two hydropower generating plants, had exposed about 30 human burials and prehistoric artifacts from the White Swan Burial Ground.

Tribal representatives described a gruesome scene where pieces of caskets, the outlines of additional graves, and parts of human burials were exposed and lying on the surface of the drawdown zone. Associated with St. Phillips Church, part of a community that had been inundated by construction of the reservoir in about 1951, the burial ground had been in use from at least the 1830s.

Following exposure of the remains, in December 1999, the tribe had obtained a temporary restraining order to prevent the Corps from raising the water level and to provide the tribe and the Corps an opportunity to address the situation. When no resolution could be reached, however, the court ruled that the Corps could proceed to refill the reservoir. Before this took place, the tribe and the Corps removed some of the exposed remains. Others were left in place due to frozen ground conditions. Soon afterward, the burial ground was inundated, and the human remains that had been collected were reburied in a nearby plot provided by the Corps.

The Corps already knew that human remains were present at this location and were vulnerable to exposure from drawdowns of the reservoir. Human remains were exposed during a drawdown in 1966, and exposed burials were also discovered in 1990 and 1991.

Neither the Council nor the SHPO were consulted by the Corps about the 1999 drawdown and the subsequent discovery of the human remains. After the fact, the Corps acknowledged that the reservoir drawdown was an undertaking for purposes of Section 106 but notified the SHPO that the Corps had determined that the cemetery was not eligible for listing in the National Register of Historic Places. The Corps did not provide any supporting documentation or justification for this finding. The SHPO replied that insufficient information had been provided to reach a consensus determination of eligibility and requested additional documentation.

A complicating factor in this case is a 1994 PA that addresses Corps management of historic properties at all six of the Missouri River Mainstem Reservoirs (including Francis Case Reservoir) in Montana, North Dakota, South Dakota, and Nebraska. The Corps has not met the terms of the PA. In the six years that the PA has been in effect, no Remedial Action Plans have been produced for properties being damaged or in imminent danger of damage from reservoir operations, and none of the required historic properties management plans have been developed. The Corps has informed Council staff that it lacks sufficient staff or funding to carry out the PAís terms.

Policy Highlights

This case underscores the difficulties that the Council, SHPOs, and tribes have in working effectively with the Omaha District of the Corps. Had the terms of the 1994 PA been fulfilled, this situation would have been averted through a management plan developed in consultation with the tribe, the SHPO, and the Council.

Instead, the Corps did not follow the PAís terms and the Councilís regulations. Corps actions at Francis Case Reservoir exemplify the unmitigated damage that continues at numerous significant historic properties due to the Corps management of impounded waters within the six Missouri River Mainstem Reservoirs.


Staff contact: Alan Stanfill

June 2000 report on this case



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