A Word to the Potential Client

Public agencies and major industries are accustomed to the requirements of Section 106 of the National Historic Preservation Act and generally build the costs of environmental studies, including archaeological surveys, into their budgets. For the private developer, it is often a different story: The developer has spent months, even years, lining up investors and having plans prepared when at the last minute—often only weeks or days before the project is set to begin—he receives a letter from a public agency stating that an archaeological survey will be required. Under such circumstances, the developer reacts in one of several ways: He may call his elected officials and attempt to have pressure brought to exempt his project from the requirement. This tactic usually fails, because the requirement originates with the Federal Government, not local or state agencies. He may request a meeting with the reviewing authority and attempt to argue his case in hopes of having the decision rescinded. Sometimes he hires an attorney and has the attorney present his case. Again, this is seldom successful, though an attorney may be able to insist on a strict interpretation of the regulations such that only the absolute minimum area is surveyed under the law. Finally, the developer may accept the necessity of carrying out the archaeological study and agree to hire an archaeologist. In such a case, where does he go? Most states maintain lists of qualified archaeologists. These archaeologists range from representatives of multi-million dollar businesses for which archaeology is only one aspect of a multi-faceted enterprise, to single operators operating out of their homes. Most archaeologists are competent and honest; a few are dishonest and/or incompetent. Fees cover a wide range and conform to no recognized scale. How does the wary developer determine whom to hire?

Certainly calls to other developers regarding their experiences are valuable. Then, an initial telephone consultation or interview is desirable. This should allow the potential client to get at least a preliminary feel for whether this archaeologist is someone he can work with. The legitimate archaeologist will have no hesitation about discussing past projects and fees (at least within the bounds of discretion imposed by his agreements with past and current clients). If the developer then wishes to pursue the possibilities with this archaeologist, he should fax or mail the archaeologist his plans. Often we, as archaeologists, are called by potential clients who want a price on “fifty acres” or “ten miles of pipeline.” This is like a writer who asked the editor how much the editor paid per word. The editor replied, “What words and in what order?” Each project is different and the archaeologist will formulate a bid based on his understanding of the terrain and the likelihood of there being archaeological sites in the survey area. Some archaeological firms, sensing that an area will require additional (Phase II) archaeological work, will bid unrealistically low on Phase I work, in order to get the project. The client should thus be aware from the outset that he is never required to do further archaeological work, because he always has the option of amending his plans so as to avoid archaeological sites. As a practical matter, however, it is often faster and cheap to simply do the additional archaeological work if required. For this reason, the decision as to which archaeologist to hire should be based on more than simply a low bid.

Many developers, wary of regulatory agencies and archaeological consultants, hire an attorney to represent them during the environmental process. In our opinion, this is usually not a cost-effective strategy because archaeological consulting fees are not remotely in the same ballpark as legal fees. It is usually far more efficient and certainly more cost-effective to deal directly with the archaeological consultant and regulatory agencies. It is extremely rare for archaeological considerations to halt a project. A good archaeological consultant can usually be far more effective than an attorney because the archaeologist has been dealing with these regulatory agencies and with Section 106 issues for years.

In short, the conscientious archaeological consultant is his client’s trusted adviser, who will provide the most knowledgeable advice on how to negotiate the often-daunting regulatory thicket.