Appendix J 

BLM Cultural Resources Protection Procedures 
PROGRAM OBJECTIVES 

The BLM has developed a cultural resources program designed to inventory, evaluate, and manage 

cultural resources on BLM-administered public land and in areas of BLM responsibility. The BLM 

management of cultural resources (archaeological, historic, and socio-cultural properties) is in accordance 

with the provisions of the National Historic Preservation Act (NHPA) of 1966, as amended, and other 

applicable legislation. 

IDENTIFICATION OF CULTURAL RESOURCES 

The BLM requires cultural resource inventories for actions with federal responsibility that include surface 

disturbance as a part of the action. The purpose of inventories is to identify cultural resources prior to any 

ground disturbing activity. This way, sites can be protected through project redesign or other mitigation 

measures prior to any threat of disturbance. Numerous laws and regulations mandate this policy. All 

portions of the proposed Overland Pass Pipeline, access roads, temporary use areas, and storage yards 

have been inventoried to Class III standards. 

Class III intensive field surveys are conducted by professionals thorough pedestrian survey of an entire 

target area. The intent of a Class III inventory is to locate and record all historic properties and is 

consistent with standards in the Secretary of the Interior’s Standards and Guidelines for Archaeology and 

Historic Preservation (48 FR 44716). Class III inventories conform to the prevailing professional survey 

standards for the region involved, provided that the regional standards meet or exceed the Secretary’s 

Standards and Guidelines. Because Class III survey is designed to produce a total inventory of the 

cultural properties observable within the target area, once it has been completed no further survey work 

should be needed in the target area as long as the current standards are met. Areas with a high 

probability of containing buried cultural materials or known cultural materials may require additional 

work of professional monitoring and/or data recovery excavations. Areas that require additional work are 

analyzed on a case-by-case basis, depending on the proposed action and the types of cultural resources 

present in the project area. 

BLM JURISDICTION ON PRIVATELY OWNED AND/OR SPLIT ESTATE 

LANDS (INCLUDING THE CHECKERBOARD LAND PATTERN) 

Survey 

The BLM frequently authorizes permits and rights-of-way, or provides approvals for actions on Federal 

lands in which portions of the overall project may take place on non-Federal lands or the Federal action 

may have contingent or cumulative effects on non-Federal lands. Before the BLM can authorize (through 

permit, license, etc.) any project which may adversely affect significant cultural resources (i.e., historic 

properties), the BLM has the legal responsibility to take into account the effects of its actions on these 

resources. In order for the BLM to fully consider the effects of its actions, it also has the responsibility to 

gather the information necessary to know what cultural resources may be affected, evaluate the resources 

for eligibility for inclusion in the National Register of Historic Places, and mitigate adverse affects to 

historic properties where possible. 

If a project requires the use of federally owned surface lands as well as privately owned surface lands, 

there are two authorities that require federal agencies to apply the same NHPA Section 106 compliance 

standards to private lands as they do to federal lands. The regulations at 36 CFR, Part 800.4(b) require 

the Federal agency to "take the steps necessary to identify historic properties within the area of potential 

J-1 
effect." That this includes both Federal and nonfederal lands is implicit throughout the statute and the 

regulations, since the regulatory definition of "area of potential effect” is "the geographic area or areas 

within which an undertaking may directly or indirectly cause changes in the character or use of historic 

properties" [36 CFR, Part 800.16(d)]. It makes no distinction between Federal and nonfederal lands. 

More explicit, however, is Executive Order No. 11593, entitled "Protection and Enhancement of the 

Cultural Environment." Under the EO, Section 1(3) it states that all Federal agencies: "...in consultation 

with the Advisory Council on Historic Preservation, institute procedures to assure that Federal plans and 

programs contribute to the preservation and enhancement of non-federally owned sites, structures and 

objects of historical, architectural, or archaeological significance." The BLM's responsibility for 

inventory, evaluation, and protection of cultural properties on lands outside BLM administrative 

jurisdiction is limited according to the degree to which the Field Manager's decisions determine or control 

the location of surface-disturbing activities on those lands. 

BLM makes this policy known to project proponents, who in turn are responsible for providing all of the 

information the BLM requires for making informed decisions. If cultural resource data is lacking from 

private lands so that the BLM authorized officer cannot make an informed decision, the BLM cannot 

allow the undertaking to proceed. Thus, it is the responsibility of the project proponent to acquire the 

appropriate information. 

Within the checkerboard land pattern that encompasses much of the planning area, Wyoming BLM has 

set forth the policy that the entire project area, if it covers any federal lands, must be inventoried. The 

reasoning for this is that the distances between federal ownership and private ownership are so short, that 

the potential for the federal portion to not dictate the placement of the project on private is remote. 

Split estate lands are defined as those lands where surface ownership transferred to private landowners 

from the Federal government but the mineral rights were retained by the Federal government. These 

situations arose either through patent under the 1914 amendment to the Homestead Act or purchase under 

the Stock-raising Act of 1916. Each of these Acts also allowed for the Federal government to "reenter 

and occupy so much of the surface...as may be required for all purposes reasonably incident to the mining 

or removal of coal or other minerals." At the time of purchase, the buyer agreed to these terms. Since 

completing compliance of the NHPA Section 106 process is required of a Federal agency by statute and 

regulation prior to the Federal action, and then being able to complete that process is a purpose reasonably 

incident to the extraction of the minerals. 

Site Management 

As stated above, BLM has multiple authorities for requiring cultural resource inventories on private lands. 

This jurisdiction only holds forth with federal undertakings. Cultural resources that are located on private 

lands are recorded for the permanent record and appropriate mitigation measures are applied, in 

consultation with the private landowner. This jurisdiction comes from the requirement that the federal 

agency must take into account its effects on all historic properties. Once the federal undertaking has been 

fully processed, the federal responsibility for an historic property is completed. The historic property 

remains under the ownership of the landowner, thus BLM has no control over the historic property 

outside of the venue of a federal undertaking. 

J-2 
EVALUATION OF CULTURAL RESOURCE SITES 

Criterion for Eligibility 

The BLM evaluates the significance of cultural resources identified during inventory in consultation with 

the Wyoming SHPO to determine if the resources are eligible for inclusion in the National Register of 

Historic Places (NRHP). Cultural resource properties may be considered eligible for listing in the 

National Register if they meet one or more of the following criteria identified in 36 CFR 60.4: 

• Criterion A: An historic property is associated with an event or events that have made a 

significant contribution to the broad patterns of America’s History.

• Criterion B: An historic property is associated with the lives of persons significant to our past. 

• Criterion C: An historic property embodies the distinctive characteristics of a type, period, or 

method of construction, or represents the work of a master, or possesses high artistic value or 

represents a significant and distinguishable entity whose components may lack individual 

distinction. 

• Criterion D: An historic property has yielded or may be likely to yield information important in 

prehistory or history. 

To facilitate evaluation of cultural resource values in Wyoming, the BLM has devised guidelines for 

determining the eligibility of archaeological and historical sites and historic trails (BLM Manual 

8110.32). The guidelines supplement the National Register criteria for evaluation (36 CFR 60.4) and 

provide consistency across all BLM jurisdictions. Application of the guidelines ensures that significant 

cultural resources are recognized and managed accordingly. 

Aspects of Integrity 

Integrity is the ability of a property to convey its significance. To be listed in the National Register of 

Historic Places, a property must not only be shown to be significant under the National Register criteria, 

but it also must have integrity. The evaluation of integrity is sometimes a subjective judgment, but it 

must always be grounded in an understanding of a property’s physical features and how they relate to its 

significance. 

Historic properties either retain integrity (this is, convey their significance) or they do not. Within the 

concept of integrity, the National Register criteria recognize seven aspects or qualities that, in various 

combinations, define integrity. 

To retain historic integrity a property will always possess several, and usually most, of the aspects. The 

retention of specific aspects of integrity is paramount for a property to convey its significance. 

Determining which of these aspects are most important to a particular property requires knowing why, 

where, and when the property is significant. 

• Location: The place where the historic property was constructed or the place where the historic 

event occurred. 

• Design: The combination of elements that create the form, plan, space, structure, and style of a 

property. 

J-3 
• Setting: The physical environment of an historic property. 

• Materials: The physical elements that were combined or deposited during a particular period of 

time and in a particular pattern or configuration to form an historic property. 

• Workmanship: The physical evidence of the crafts of a particular culture or people during any 

given period in history or prehistory. 

• Feeling: The property’s expression of the aesthetic or historic sense of a particular period of 

time. 

• Association: The direct link between an important historic event or person and an historic 

property. 

Contributing and Non-Contributing to NRHP Eligibility 

Properties that encompass large areas can be deemed to have contributing and non-contributing portions. 

Contributing portions are seen to retain integrity of the values for which the property is considered 

eligible for the NRHP. Non-contributing portions are identified portions of the property which are not 

deemed to retain the integrity of values which would render the property eligible for the NRHP. The 

determination of contributing versus non-contributing portions of an eligible property can be made at any 

time after adequate evaluation has been conducted. 

Historic trails including the Overland and Cherokee, the Rawlins to Fort Washakie Freight Road, and the 

Rawlins to Baggs Freight Road, are considered eligible for the National Register under Criterion A. 

However, some portions of the trails no longer retain the aspects of integrity necessary for eligibility. As 

there have been no encompassing inventories of entire trails within the RMPPA, portions of trails are 

evaluated to determine if they contribute to the eligibility of the property on a case-by-case basis. Trail 

segments are evaluated pursuant to the National Register criteria of integrity (location, design, setting, 

materials, workmanship, feeling, and association). If a predominance of criteria are met, the segment will 

be considered contributing to the properties’ overall NRHP eligibility. 

Determinations of Effect 

Once the eligibility of an historic property has been determined, the BLM must then determine the effects 

a proposed undertaking may have on a cultural resource. Standard measures for reducing effects are to be 

considered part of the project design. Determination of effect must be made after standard treatment 

measures and best management practices have been integrated into the project design. The final project 

design must incorporate all agreed upon treatment measures and be included in the Conditions of 

Approval or components of the Surface Use Plan, Plan of Operations, or Plan of Development. 

No Historic Properties Affected If no cultural resource sites eligible for listing in the NRHP are present 

in the proposed project area, there are historic properties present but the undertaking will have no effect 

upon them, or a proposed project will not be visible from an historic property or there is no contrast 

between the project and the setting, the BLM will find that the undertaking has no potential to affect 

historic properties. 

No Historic Properties Adversely Affected If a proposed project will cause effects to an historic 

property, but the effects will not diminish the aspects of integrity nor the characteristics that make the 

property eligible for listing in the National Register of Historic Places, only non-contributing portions of 

J-4 
historic properties will be affected, or if setting is an important aspect of integrity for an historic property 

and the project will cause a weak contrast, the BLM will find that the undertaking has no potential to 

adversely affect historic properties. 

Historic Properties Adversely Affected An adverse effect is found when an undertaking may alter, 

directly, or indirectly, any of the characteristics of an historic property that qualify the property for 

inclusion in the national Register in a manner that would diminish the integrity of the property’s location, 

design, setting, materials, workmanship, feeling, or association. Consideration shall be given to all 

qualifying characteristics of a historic property, including those that may have been identified subsequent 

to the original evaluation of the property’s eligibility for the National Register. Adverse effects may 

include reasonably foreseeable effects cause by the undertaking that may occur later in time, be farther 

removed in distance, or be cumulative. 

Consultation 

SHPO Consultation 

According to the Programmatic Agreement between the Advisory Council on Historic Preservation 

(ACHP) and the BLM, the BLM is required to consult with State Historic Preservation Officers (SHPOs) 

on eligibility and effects to each cultural property. The Wyoming BLM and Wyoming SHPO have 

developed a Protocol for consultation that serves to streamline the process and reduce consultation time 

frames from the guidelines set forth in the 36 CFR 800 regulations. The BLM has coordinated with 

Colorado and Kansas SHPOs as to the nature of consultation for this project and will follow the 

guidelines set forth in the 36 CFR 800 regulations. Determination of effects to sites follows the criteria 

outlined in 36 CFR 800.5. 

Native American Consultation 

In addition to consultation with the SHPO offices, the BLM conducts Native American Consultation in 

compliance with Section 106 of the NHPA, the American Indian Religious Freedom Act of 1978, and 

Executive Order No. 13007. The BLM has created a process for conducting Native American 

consultation for federal undertakings, as described in BLM Manual 8120 and BLM Manual H-8120-1. 

The BLM has worked extensively with tribes who have traditional ties to the region to establish a 

protocol for consultation. Consultation with Native American tribes is ongoing during the planning 

process. Determinations of eligibility and effects the project may have on sites are determined by the 

BLM in consultation with tribal representatives. The likelihood of inadvertently affecting a TCP or 

sacred site is low because of the established protocols BLM has developed with tribal representatives. 

Interested Parties 

The BLM will solicit such input through the public participation opportunities afforded by BLM’s land 

use planning and environmental review processes established under the National Environmental Policy 

Act (NEPA) of 1969 and the Federal Land Policy and Management Act (FLPMA) of 1976, and in 

accordance with regulations at 43 CFR Part 1610.3. Interested parties shall be invited to participate in the 

Section 106 consultation process if they have a demonstrated interest in a BLM action. Such interested 

parties may include, but are not limited to, local governments, grantees, permittees, owners of affected 

lands or land surfaces, Indian tribes, and other interested parties determined jointly by BLM and SHPOs. 

In making determinations of effect, BLM may request comments of interested parties. When BLM makes 

a determination of adverse effect, they will request comments of interested parties. BLM will maintain 

lists of interested parties based on their identified interests. 

J-5 
BLM and SHPOs will consult to identify invited concurring parties based on their demonstrated interest 

and level of participation. Invited concurring parties will be provided the opportunity to sign a 

Memorandum of Agreement or Programmatic Agreement. Refusal by an invited concurring party to sign 

an agreement will not invalidate the agreement. 

MANAGEMENT OF CULTURAL RESOURCES 

Within the framework described above, the BLM has developed protective measures to minimize adverse 

effects (as defined in 36 CFR 800.5[1]) on significant cultural resource values. Protective measures are 

used in response to the proposed actions of BLM programs involving surface disturbance. These 

measures include cultural resource inventories, evaluation of cultural resources located during inventory, 

setting assessments where applicable, Best Management Practices and mitigation of potential adverse 

impacts on significant cultural resources. 

A setting assessment is used to determine what physical features of a proposed undertaking will be visible 

from a historic property for which setting is an important aspect of integrity. Visibility of undertakings 

will vary. The scale of visual analysis should be commensurate with the scale of the undertaking. In the 

majority of cases, undertakings will not be seen beyond three miles; pipelines, fiber-optic and other 

ground level disturbance will not likely be seen beyond a mile. In rare cases, undertakings may be seen 

beyond five miles if they are unusually large or are skylined on the horizon, such as wind turbines and 

communication towers. 

A setting assessment can also be used to determine whether a proposed undertaking will introduce audible 

elements to the historic property where setting is an important aspect of integrity. These proposed 

undertakings may include compressor stations, pumping stations, or wind turbines. An assessment of the 

existing audible elements will be documented and then the BLM archaeologist will work with the project 

proponent to ensure new audible elements do not result in an adverse effect. Best management practices 

and mitigation measures will be utilized to achieve this goal. 

Best Management Practices 

In situations where a proposed undertaking has the potential to affect the physical integrity of an historic 

property, there are numerous measures that can be applied to reduce or eliminate the effects. BLM 

archaeologists work with the contracting archaeologist and the project proponent to determine which 

practice would best suit the needs of all parties. Application of BMPs is dependent upon the nature of the 

undertaking, and the nature of the historic property. 

Avoidance Avoidance, through modification of the proposed undertaking, is the primary and preferred 

measure used to protect cultural resources. This can be accomplished at the project planning stage. 

Monitoring In situations where avoidance of adverse affects is not feasible, or there is a determination of 

no adverse effects, but the potential remains for there to be adverse effects through inadvertent discovery, 

a BLM permitted archaeologist will monitor construction activities. The presence of a monitor is to 

ensure that buried cultural materials are immediately identified and that construction activities in that area 

are halted to avoid further impacts to the site. Prior to BLM authorization of the project, the project 

proponent submits a discovery plan to the BLM for review which outlines the way in which cultural 

resources will be treated and the responsibilities of the project proponent. This plan is reviewed by BLM 

archaeologists and submitted to SHPO for concurrence. In the case where monitoring results in a 

discovery situation, the discovery plan is enacted. Depending on the nature of the discovery the project 

may be allowed to proceed, redesigned, or data recovery may be required. 

J-6 
Standard Measures to Reduce Visual Contrast When a proposed project is found to be within the 

contributing setting of an historic property, an assessment of potential impacts is conducted through 

viewshed analyses, on-site inspection, and photo inspection. For historic trails such as the Cherokee 

Trail, Overland Trail, Rawlins to Fort Washakie Road and Rawlins to Baggs Road, protection measures 

would be carried out similarly to other historic properties if any project were found to be located within 1⁄4 

mile of a contributing portion of the historic trail. When a proposed project is outside of the 1⁄4 mile 

buffer of the trail, but found to be within the viewshed that contributes to NRHP eligibility, analyses of 

potential impacts to the integrity of the setting would be carried out in the same way as other properties 

where setting is an aspect of integrity. Best management practices used to ensure that the contributing 

viewshed of historic properties are not adversely affected include: 

• Develop coordinated road and pipeline systems. 

• Use low profile facilities. 

• Proper sighting and location to maximize the use of topography and vegetation to screen 

development. Design projects to blend with topographic forms and existing vegetation patterns. 

• Use environmental coloration or advance camouflage techniques to break up visual intrusion of 

facilities that cannot be completely hidden. 

• Use broken linear patterns for road developments to screen roads as much as possible. This can 

include feathering or blending of the edges of linear rights-of-way to break up the linearity. 

• Design linear facilities to run parallel to key observation points rather than perpendicular. 

Mitigation 

Mitigation measures are determined by the types of proposed actions, the nature of the potential effect 

and the qualities of the historic property that render it eligible for NRHP listing. Mitigation measures are 

applied when best management practices will not reduce or minimize adverse effects. Mitigation may 

include data recovery, HABS/HAER documentation, or other agreed upon measures. Consultation with 

the Wyoming SHPO and the ACHP is required when proposed actions are expected to adversely affect 

properties eligible for the National Register and mitigation is determined to be the best course of action. 

Data Recovery There are two times during a project that data recovery may be implemented. The first 

is when it is determined prior to project construction that there will be an adverse effect to an NRHP 

eligible property. The project proponent, the BLM, and the SHPO work together to develop a data 

recovery plan which will mitigate the adverse effects. The second is after a discovery situation when it is 

determined that the project has already adversely impacted an historic property. Again, the project 

proponent, BLM authorized officer, and SHPO work to develop a plan that mitigates all effects of the 

construction. Data recovery in itself is a destructive process, thus it must be carried out in a way to 

successfully retrieve all pertinent information from the site. 

HABS/HAER (Historic American Buildings Survey/Historic American Engineering Record) 

HABS/HAER documentation as a mitigation measure may be implemented if no other mitigation 

measure would adequately minimize the adverse effect. This documentation includes large format 

photography, drawings, and research of the property to document all aspects of the property prior to 

adverse effects. 

J-7 
Agreement Documents In situations where data recovery or HABS/HAER documentation is not 

appropriate to mitigate adverse effects or multiple historic properties will be affected by a single 

undertaking, the BLM will work with the SHPO and the project proponent to develop an agreement 

document. Depending on the nature of the undertaking, this may result in a Memorandum of Agreement 

(MOA) or a Programmatic Agreement (PA). The agreement document will outline the manner in which 

adverse effects will be mitigated, and the roles and responsibilities of each signatory. The agreement 

document stays in effect until all measures have been completed to the satisfaction of all parties. 

CULTURAL RESOURCE LAWS AND REGULATIONS 

American Antiquities Act of 1906—provides for permits to authorize scholarly use of properties, for 

misdemeanor-level penalties to control unauthorized use, and for presidential designation of outstanding 

properties as national monuments for long-term preservation. 

National Historic Preservation Act of 1966— 

• Section 106 directs all federal agencies to take into account effects of their undertakings (actions 

and authorizations) on properties included in or eligible for the NRHP. 

• Section 110 sets inventory, nomination, protection, and preservation responsibilities for federally 

owned cultural properties. Section 110(c) requires each federal agency to designate a 

Preservation Officer to coordinate activities under the act. 

American Indian Religious Freedom Act of 1978—establishes the policy of the United States to protect 

and preserve for the American Indian, Eskimo, Aleut, and Native Hawaiian the inherent right of freedom 

to believe, express, and exercise their traditional religions. Federal agencies are directed to evaluate their 

policies and procedures to determine if changes are needed to ensure that such rights and freedoms are not 

disrupted by agency practices. 

Archaeological Resources Protection Act of 1979—provides felony-level penalties for the unauthorized 

excavation, removal, damage, alteration, defacement, or the attempted unauthorized removal, damage, 

alteration, or defacement of any archaeological resource, more than 100 years of age, found on public 

lands or Indian lands. The act also prohibits the sale, purchase, exchange, transportation, receipt, or 

offering of any archaeological resource obtained from public lands or Indian lands. 

Native American Graves Protection and Repatriation Act of 1990—requires Native American 

consultation for the excavation and/or removal of “cultural items” including human remains, funerary 

objects, sacred objects, and objects of cultural patrimony. Consultation is also required if “cultural items” 

are discovered during land use activities. 

Executive Order No. 13007: Indian Sacred Sites—establishes access to and ceremonial use of Indian 

sacred sites by Indian religious practitioners on federal lands. The federal agencies shall avoid adversely 

affecting the physical integrity of such sacred sites and maintain confidentiality of said sites. 

J-8