INTERIOR COLUMBIA BASIN ECOSYSTEM
The Leading Edge
"We continually need to be cognizant of the sovereign status of the American Indian Tribes and work together on a government-to-government basis as is accorded the Tribes through the Treaties and Executive Orders establishing this relationship."
Cliff Walker, Tribal
Liaison Co-Team Leader
When the Interior Columbia Basin Ecosystem Management Project (Project) was initiated it was recognized that there was a need to include the affected, sovereign American Indian Tribes in the development of the Project. A Tribal Liaison position was established as a member of the Project Management Team. The task of that position was to identify the Tribal governments that could be affected by the Project and establish a government-to-government consultation process between them and the Federal government.
Twenty-two tribal governments were identified and contact was made with each of them. The Tribal Liaison staff met with each of the Tribal governments or Tribal resource staff early in the process. The Project's Executive Steering Committee (ESC), Project Management and representatives from the Science Integration Team met with several of the Tribal governments or staffs during the development of the Draft Environmental Impact Statements (EISs).
Last year the Project hired an additional Tribal liaison to handle the increasing workload. The two liaisons, Cliff Walker and Cheryle Zwang, work as co-team leaders and are based out of the Walla Walla, Washington and Boise, Idaho offices, respectively. As Zwang notes, "our work together focuses on ensuring the voices of the affected Tribes are heard by the ESC members and project staff, and that their concerns are considered and addressed."
Walker and Zwang proposed a series of "Summits" for the Tribal government leaders and the ESC to meet on a government-to-government basis to consult on the development of the Project. Three Summits were held on Tribal lands and eight of the twenty-two Tribal governments invited attended.
Several of the Tribes felt they needed to discuss issues, such as the Federal government's Trust Responsibility and Treaty Rights, with a higher level of the administration before meeting with the ESC. A meeting with Secretary of Interior Bruce Babbitt was held December 1, 1997 in Portland, Oregon to meet this request. All twenty-two Tribes were invited to attend, with ten of the Tribal governments choosing to send representatives to the meeting.
This meeting with Secretary Babbitt resulted in the recommendation to create a Tribal/ESC "Working Group." The Working Group consists of four ESC members, four representatives from the Tribes and a representative from the Secretary's office. This group is chartered with the responsibility to identify those issues common to most of the twenty-two Tribes which are within the purview of the ESC to address through the Project.
The Working Group has so far held three meetings and identified seven issues to be addressed by the Project. The Group has begun work on three of the issues: habitat to support harvestable numbers of fish, wildlife, and plants; basin-wide aquatic objectives; and a meaningful, feasible consultation process.
The other four issues are: develop a common understanding of the Federal government's Trust Responsibility to American Indian Tribes; agency monitoring and accountability protocols; funding for protection of riparian, aquatic, wildlife, and cultural resources; and participation of tribes in the land management agency's decision-making process. The Working Group will continue this government-to-government collaboration efforts as they work their way through the issues.
In addition, Walker and Zwang continue to keep in contact with all twenty-two Tribal governments on a regular basis to keep them informed on the status of the Project and the progress of the Working Group. As Walker notes, "working with the Tribal governments is an integral part of the collaboration process. From the beginning, the Project as a matter of course has strived to substantially involve interested members of the public and representatives of State, Tribal and local government in its planning and decision-making processes."
Interim Strategies - What the Courts Are Saying
There are three separate interim strategies existing that affect the management of BLM- and Forest Service-administered lands in the project area. One of the objectives of the Project is to replace these interim strategies with a long-term plan.
Litigation has challenged these interim strategies (PACFISH, INFISH and Eastside Screens) which are intended to direct management on BLM- and Forest Service-administered lands in relationship to anadromous fisheries (such as salmon), native fresh water fisheries (such as bull trout) and old forest stands in eastern Oregon and Washington, respectively.
There have been two federal court decisions that reinforce the need to complete a broad-scale planning effort. The Courts in these decisions clearly emphasized the need for a long-term strategy to be put in place to replace these interim strategies:
In his most recent decision, Judge Jones reiterates the interim nature of PACFISH and INFISH, and the need for a long-term strategy to be provided by the Project. Judge Jones says in part:
The Draft EISs noted the need to replace the interim strategies. These recent court decisions further emphasize the need for the BLM and Forest Service to complete a long-term management plan as is intended by the Project.
1999 Interior Appropriations Bill Language
This past June, the Appropriations Subcommittees in the U.S. House of Representatives and U.S. Senate added language to their 1999 Department of Interior and Related Agencies Appropriations Bills (appropriations bills) that would effectively terminate the Project before the completion of a Final EIS and Record of Decision.
The House Interior Appropriations Subcommittee on June 18 approved the appropriations bill (H.R. 4193), with the language attached as a rider. The following day the Senate Interior Appropriations Subcommittee passed its bill (S. 2237). Both are similar in nature, but there are some differences between the two versions that would have to be worked out in a final bill. Both versions of the bill are accessible via the Internet at http://thomas.loc.gov.
On July 23, the U.S. House of Representatives approved the appropriations bill with the attached rider still intact. The U.S. Senate is expected to take up its version of the bill in September after the summer recess.
If signed into legislation the bill limits expenditures and sets a four-month deadline for the Project to accomplish two tasks prior to closing (House version) or reorganizing (Senate version) the project offices.
First, it would direct the Project to prepare the report required by section 323(a) of the 1998 Department of Interior and Related Agencies Appropriations Act.
Section 323(a) required the following; 1) prepare a report that detailed any decisions made by the Project that would come out of a Final EIS and Record of Decision, 2) estimate the time and cost to implement the EIS, 3) estimate the level of goods and services provided over the next five years, and 4) if the first and third provisions cannot be met then provide a detailed description of any decisions that will establish priorities with appropriated funds.
Secondly, the Project would be required to distribute to Bureau of Land Management District and National Forest Supervisor offices in the project area the scientific findings relevant to their area.
The BLM Districts and National Forests would then be required to review the Project science and other relevant information and determine within 90 days if an amendment or revision to their existing land use plans are needed. This could potentially result in amendments or revisions to 74 individual plans in the Project area. The provision sets a one year timeframe for amendments and or 1-1/2 year timeline for revisions.
To maintain a regional perspective over these resulting plans, the Senate version of the bill would then require the Secretaries of the Interior and Agriculture to assemble and review all plans once the amendments or revisions are completed. Each Secretary would be required to prepare an "interpretive document" assessing the plans' implications on the affected regions. Upon completion this interpretive document would be distributed to the BLM and Forest Service managers for further follow-up actions that are deemed necessary.
Once the Senate version of the bill is passed, the House and Senate will then go to conference to work out a compromise on any differences in their respective appropriations bill. Project, BLM and Forest Service staff will continue to monitor what Congress is preparing and will act accordingly with the direction in any legislation that is signed into law.
Court Rulings on Current Management Activities
In another case, ONRC v. BLM, the 9th Circuit Court issued a decision on July 28, 1998, which affects the management of BLM-administered lands in eastern Oregon and Washington pending the completion of the Project.
The Oregon Natural Resources Council (ONRC) and other organizations filed suit against the BLM alleging violations of the National Environmental Policy Act (NEPA) and Federal Land Policy Management Act (FLPMA). ONRC contended that the BLM was in violation of these Acts by failing to halt certain activities pending the completion of the Project, in particular the Eastside EIS.
ONRC asserted that where there is a pending EIS, NEPA establishes a duty "to stop actions that adversely impact the environment, that limit the choice of alternatives for the EIS, or that constitute an 'irreversible and irretrievable commitment of resources'." Thus, they argued that until the Eastside Draft EIS was completed no action concerning the project area should be undertaken that would affect the environment.
The BLM countered that until the Project was completed the current Resource Management Plans (RMPs), which guide management activities on BLM-administered lands with interim strategies, adequately addressed resource allocations and management activities on the lands they administer.
The Courts decision in this case found that the BLM was not in violation of NEPA and FLPMA, and that activities could continue on BLM-administered lands prior to the completion of the Project. The Court noted that, "because the Eastside EIS will likely lead to some revision or amendment of the current RMPs, it is reasonable to conclude that the RMPs are existing program statements for purposes of NEPA."
In light of this Court ruling, (and others discussed earlier in the newsletter) the BLM and Forest Service continue to work toward a Final EIS and ROD. The ROD will replace the interim strategies and amend the land management plans that guide the direction of management activities on BLM- and Forest Service-administered lands.
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