December 15, 2000 Mr. E. L. Roy Hunt Special Advisor for International Affairs Florida Department of State Office of International Affairs The Capitol, Room 1902 Tallahassee FL 32399-0250 RE: Comments on Proposed Amendments to Chapter 267, Florida Statutes Dear Mr. Hunt: Thank you for allowing the Florida Archaeological Council (FAC) to provide comments on the proposed legislative amendments to Ch. 267, F.S. (Florida Historical Resources Act). As you know, the FAC is the only statewide organization of professional archaeologists. Our membership includes cultural resource consultants, state and federal agency archaeologists, academic teachers and researchers, and museum professionals. The FAC represents a wide range of interests related to the state’s archaeological resources. The FAC views with concern the impending action that will make the Secretary of State an appointed, rather than an elected position after 2002. The FAC sees this as potentially diminishing the influence of this office within the state cabinet, particularly with regard to the advocacy role that it plays on behalf of the Division of Historical Resources (DHR). This state agency is responsible for overseeing the protection of archaeological and historical sites and collections in Florida, as mandated by Chapter 267, F.S. It also carries responsibilities for implementing federally mandated programs under the National Historic Preservation Act of 1966 (as amended). The potential elimination of a strong advocate for the Division is an especially disturbing development since Florida’s cultural heritage is a demonstrated asset that contributes beneficially to the economy and overall quality of life of its residents. In light of this, it is appropriate to consider legislative action to maintain, and perhaps strengthen, the legitimacy and influence of the Division of Historical Resources within state government. There are several existing models on how to accomplish this change in the absence of an elected Secretary of State. Nevertheless, the proposed concept of a “super” council (i.e., the proposed Florida Historical Council (FHC), which will serve in an advisory capacity to both the Division and the executive branch of state government, does appear to have potential as a workable solution to the problem of ensuring that cultural resource issues will continue to be adequately represented. Our concerns are not with the concept but with how the concept will be implemented. We are particularly concerned with what appears to be a potential for political partisanship to affect the composition and workings of the FHC. These and other concerns are summarized below by section. In addition to the following comments, we note that many existing sections of Chapter 267 have been moved to new sections without a significant change in language. We assume that these organizational changes have been proposed to better reflect the duties of the FHC and to provide a more logical format to the existing law. In general, the FAC is in agreement with these proposed organizational changes. It is also assumed that sections of the existing law not specifically referenced in the proposed amendments will remain intact. 267.0612 Florida Historical Council After reviewing the proposed amendments, it appears that the main changes to this section can be summarized as follows: 1) The Florida Historical Council (FHC) will replace and assume the duties of the present Historic Preservation Advisory Council; 2) There will be 11 members rather than 12 (267.0612[1]); 3) Members of the FHC will be appointed by the Governor, the Senate, and the House of Representatives (267.0612[1]); 4) Qualifications for FHC membership will be more specific, especially with regard to historic preservation and archaeology, than under the current Advisory Council (267.0612[1]); 5) Ex-officio members will consist of the chairs of the citizen support groups created pursuant to Ch. 267.061(3)(o), the Governor’s Council on Indian Affairs, the Grove Advisory Council, the Florida Folk-Life Council, the State Historical Marker Council, the Hispanic-American Heritage Council, and the African-American Heritage Council (267.0612[1][a]); 6) A review panel may be formed to assist the FHC in reviewing grant applications (267.0612[1][c]) 7) The Council’s presiding officer will be appointed by the Governor (267.0612[2][c]). Although it is not altogether clear why a new “Florida Historical Council” needs to be created, since it seems to take on the roles and responsibilities of the existing Historic Preservation Advisory Council, the FAC has no issue with such a change. We recognize that while the roles and responsibilities remain unchanged in law, it is foreseen that in practice the FHC will seek a more active role in advising and promoting the interests of the Division, as these relate to cultural resource matters. The change from 12 to 11 members also makes more sense and avoids tie votes on controversial issues, while helping to downsize the number of governmental appointees as mandated. Under the proposed legislation, seven members of the Florida Historical Council will be appointed by the governor and four by the legislature (two each by the Senate and House of Representatives). Of the seven members appointed by the governor, five must possess specialized expertise in the areas of architecture, architectural history, history, prehistoric archaeology, and historic archaeology. The FAC supports the increased specificity in qualification requirements for five of the membership positions. We are particularly pleased to see that individuals with expertise in both prehistoric and historical archaeology will be required. We also recognize that for the Council to operate effectively it must consist of individuals with both technical expertise and political acumen. We are concerned, however, that 1) all of the 11 positions will be political appointments, and 2) individuals without specialized knowledge, training, or expertise (six of the 11 positions) will form a majority of the membership. It is conceivable, given such a composition, that the Council could split along technical versus political lines on controversial issues with politics prevailing. Furthermore, it is disconcerting that, given recent developments at both the federal and state levels to include Native Americans more prominently in decisions regarding Native American archaeological sites, that there are no Native American representatives among the voting members of the Council. Since the role of the Council will be to provide advice on cultural resource matters, not politics, the FAC recommends that the composition of the FHC be changed to include at least one Native American representative, to be determined by the Governor’s Council on Indian Affairs. This will serve a dual function of diffusing the influence of a potential non-technical voting block and insure representation by Native Americans. In addition, we recommend that the five “technical” members of the FHC be appointed by the Governor based on nominations received from state professional organizations in each of the specified fields. With regard to the establishment of a review panel to assist the FHC in reviewing grant applications, it is unclear why this panel is necessary. Presently DHR staff reviews all grant applications and makes recommendation to the Historic Preservation Advisory Council, which then ranks the various applications and makes recommendations to the Secretary of State. Is it proposed that this review panel would assume the responsibilities of DHR staff? If so, the FAC would oppose any diminution of DHR staff input in the grant review process. If not, and if it remains the responsibility of the FHC to review grant applications under 267.0612(3)(c), then the creation of a review panel chaired by members of the FHC seems a duplication of effort. The FAC recommends keeping the grant review process solely within the FHC. Finally, the proposal that the governor shall designate a member of the council to be its presiding officer (267.0612[2][c]) is of concern to the FAC. This replaces the existing language for the Historic Preservation Advisory Council which allows the Council members to elect a chairperson. Given the technical makeup and responsibilities of the Council membership, it would seem more appropriate to allow the members to elect their own chairperson. This would also eliminate the opportunity for politics to influence the selection process and to perhaps influence the decisions of the Council. 267.___ African-American and Hispanic-American Heritage Advisory Councils The FAC supports the creation of these advisory councils. However, we recommend that the chairs of each of these councils be elected from among the council members. 267. ___ Great Floridians Program While the FAC supports the creation of this program, there are no recommendations for additional staff positions involved with this undertaking. In addition to nominating appropriate individuals, such a program will require Division resources for promotion of the program, fundraising, film and videotape production, dissemination, and curation, and the production of appropriate markers. The FAC recommends consideration of additional Division staff and funding to handle this large undertaking. 267.___ Historical Marker Program This appears to be primarily a reorganization effort, taking this section out of the existing 267.061(3)(n) and putting it into its own section. We note again, however, that the composition of the State Historical Marker Committee will be appointed by the Governor (267.__[7][a]). Since it is specified that each of the three members will have “professional training and experience” in history, historic preservation, architecture, architectural history, or archaeology, the FAC recommends that the members be appointed by the Governor based on nominations received from state professional organizations in each of the specified fields. The FAC also recommends that the paragraph pertaining to the creation and maintenance of the Florida Master Site File (267.___[3]) be moved to a more prominent position within the law in order to reflect its importance within the Division of Historical Resources. We recommend that it be included as a separate paragraph within section 267.031, equivalent in stature to the positions of State Archaeologist and State Historic Preservation Officer. As the primary inventory of the state’s archaeological and historical resources, the maintenance of the Florida Master Site File is perhaps the most important function of the Division. This should be reflected in the law. We also recommend that sections 267.__(4)(a-d) and 267.__(5)(a), pertaining to the creation and maintenance of a Florida Register of Heritage Landmarks, be eliminated. In our view, the recognition of historic properties of “exceptional historical significance to the state as a whole or a region of the state” is presently satisfied by nominating individual properties and districts that posses such significance to the National Register of Historic Places (NRHP). The NRHP eligibility criteria specifically refer to properties of national, state, or local significance. Maintaining a separate state register of historic landmarks unjustifiably assumes that the NRHP designation should be limited only to properties of national significance and diminishes the status of the NRHP designation for properties of state and local significance. Moreover, to our knowledge there are no resources presently listed on the Florida Register of Historic Landmarks. 267.____ Objects of historical or archaeological value The purpose of this section appears to be related to the accountability of the Division with regard to the archaeological and historical objects that it maintains in its custody. However, it is not clear exactly how this section is to be operationalized efficiently. For example, paragraph (1) of this section assumes that it is possible to place a monetary value on archaeological and historical objects when in fact it is not standard practice for natural history museums and curatorial facilities to do so. Moreover, many such institutions do not inventory items like property records annually, but rather conduct inventories and inspections periodically with random spot-checking conducted annually or biannually. If this section is meant to refer primarily to archaeological items curated by the state, it would require a constant process of inventorying newly acquired materials. The FAC recommends exploring other systems of accountability that would be far less time consuming and circular in reasoning and activity. The accountability issue that seems to underlie these matters could be handled in a very different manner and without the stress that the magnitude of the suggested inventory would create. 267.031(7) State Historic Preservation Officer This section has been changed to indicate that the State Historic Preservation Officer (SHPO) will “serve at the pleasure of the governor upon the recommendation of the Secretary of State and shall have his or her duties prescribed by the Secretary of State.” Current law has the SHPO serving at the pleasure of the Division Director who also prescribes the SHPOs duties. The FAC is opposed to this change. The technical nature of this position requires a person who is well-versed in cultural resources issues and possesses considerable knowledge of both state and federal historic preservation law. Consequently, it should be filled by a qualified professional rather than a political appointee. We recommend keeping the current language intact. 267.13 Prohibited practices, penalties Changes to this section include the addition of a new paragraph (267.13[4]) outlining how the value or cost of restoration and repair of an archaeological site is determined for the purpose of assessing penalties. This appears to have been moved from another Chapter (775.089), which is replaced in various sub paragraphs by this new paragraph. The FAC has no objections to this addition. We note that this section is principally concerned with the activities of private individuals who may damage, deface, or destroy archaeological sites on state lands. The FAC is aware of several specific cases where state agencies have violated their responsibilities under state law by conducting ground-disturbing projects without considering the effects of their actions on cultural resources, particularly archaeological sites, and without consulting with the Division of Historical Resources regarding cultural resource concerns. The FAC recommends that language specifying the need for accountability by state agencies pursuant to s. 267.061(2) be added to this section. 267.14 Legislative intent A major change to this section is proposed that will make it state policy to “preserve archaeological sites and objects of antiquity for the public benefit” and “limit exploration, excavation, and collection” of artifacts to “qualified persons and educational institutions.” The FAC strongly supports the first half of this addition. We agree that preservation of our archaeological resources should be state policy. However, we are concerned that the second half of this addition unnecessarily extends the state’s authority to private property and implies that the joys and benefits of nondestructive archaeological endeavors by the public, such as collecting an arrowhead from the beach, should be inhibited as a matter of public policy. In fact, there are many well-known instances where the collection of artifacts from archaeological sites by private citizens has lead to recognition of these sites as highly significant resources, warranting professional investigation and protection. The FAC recommends that this phrase be eliminated. An alternative approach would be to develop language that retains the principle of encouraging the preservation of archaeological sites on private land while recognizing that some forms of nondestructive collecting are permissible. If the above recommendations are implemented, we feel that Ch. 267 will be greatly strengthened and will provide the framework necessary to continue protecting our valuable cultural resources well beyond 2002. Again, the FAC thanks you for requesting its input on this matter. Sincerely, Robert J. Austin, Ph.D. President