Tribes and Tribal Management

A Roundup of Tribal Views on Energy Projects

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Photo is from AP story on SunZia transmission line (see last story below).

 

Utes Supports Rail Transport of Crude Oil.  These Utes seem fairly invisible in the media reports on  the Forest Service permit for the oil train.  I looked at several news stories about the Forest Service decision on the railroad. The AP story did not mention the Utes.  All of the Colorado stories I reviewed did not mention them. Only the Salt Lake City Tribune, in my review, mentioned them.

The Ute Indian Tribe, whose reservation is in the Uinta Basin, and Utah’s elected officials support the railway, arguing that it would boost struggling local economies and aid domestic energy production.

Here’s a link to an op-ed I think I posted before. Title:  “Opinion: Blocking the Uinta Basin Railway is another injustice to the Ute Indian Tribe Hickenlooper, Bennet and Polis are wrong to oppose this project needed for the reservations.”  It’s one thing for your opinions to be ignored; it’s another to be mostly invisible to the media, at least compared to the examples below.

Tribes Against Uranium Mine.

Grand Canyon -Guardian Article

“There are so many reasons why this mine doesn’t belong where it is,” said Amber Reimondo, the energy director with the Grand Canyon Trust, an environmental group focused on protecting the region. “And the fact that it is allowed to operate is a stark example of the weaknesses in our regulatory system.”

Across the south-west, local communities and tribes have been pushing back against uranium mining proposals, including in Utah, where the Ute Mountain Ute Tribe is concerned about air pollution from a nearby Energy Fuels mill facility. Similar tensions have arisen around lithium mining in the west, as a need for the metal in clean energy components grows.

Tribe Against Wind Turbines.

Federal Judge Sides With Osage Nation, Orders Removal Of 84 Wind Turbines

Tribes Against Transmission Lines

From the AP yesterday.

Pattern Energy officials said Tuesday that the time has passed to reconsider the route, which was approved in 2015 following a review process.

“It is unfortunate and regrettable that after a lengthy consultation process, where certain parties did not participate repeatedly since 2009, this is the path chosen at this late stage,” Pattern Energy spokesperson Matt Dallas said in an email.

Plaintiffs in the lawsuit are the Tohono O’odham Nation, the San Carlos Apache Tribe and the nonprofit organizations Center for Biological Diversity and Archaeology Southwest.

“The case for protecting this landscape is clear,” Archaeology Southwest said in a statement that calls the San Pedro Arizona’s last free-flowing river and the valley the embodiment of a “unique and timely story of social and ecological sustainability across more than 12,000 years of cultural and environmental change.”

The valley represents a 50-mile (80-kilometer) stretch of the planned 550-mile (885-kilometer) conduit expected to carry electricity from new wind farms in central New Mexico to existing transmission lines in Arizona to serve populated areas as far away as California. The project has been called an important part of President Joe Biden’s goal for a carbon pollution-free power sector by 2035.

Work started in September in New Mexico after negotiations that spanned years and resulted in the approval from the Bureau of Land Management, the federal agency with authority over vast parts of the U.S. West.

The route in New Mexico was modified after the U.S. Defense Department raised concerns about the effects of high-voltage lines on radar systems and military training operations.

Work halted briefly in November amid pleas by tribes to review environmental approvals for the San Pedro Valley, and resumed weeks later in what Tohono O’odham Chairman Verlon M. Jose characterized as “a punch to the gut.”

SunZia expects the transmission line to begin commercial service in 2026, carrying more than 3,500 megawatts of wind power to 3 million people. Project officials say they conducted surveys and worked with tribes over the years to identify cultural resources in the area.

A photo included in the court filing shows an aerial view in November of ridgetop access roads and tower sites being built west of the San Pedro River near Redrock Canyon. Tribal officials and environmentalists say the region is otherwise relatively untouched.

Yakama Tribe and Washington State Land and Solar

From High Country News.

Yale Forest Forum Spring 2024 Speaker Series on Tribal Forestry

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Join us for this spring’s speaker series held every Thursday from January 18 to April 25. The sessions will also be recorded.  Here’s a link with all the details.

Tribes and First Nations have been forest stewards since time immemorial on the land that is currently called North America. In the face of climate change, tribes and First Nations continue to work with institutions, NGOs, and federal and state agencies to support Indigenous sovereignty and resilient forested landscapes. This webinar will focus on the current state of tribal forest management and Indigenous stewardship with a series of speakers from different tribes, universities, non-profits, and agencies.

I’d just add that peoples who have been around North America since glaciation may know quite a bit about responding to climate changes..

The speaker series is co-developed and co-hosted by The Forest School at the Yale School of the Environment, the Yale Center for Environmental Justice, and Salish Kootenai College.

The series is facilitated by Gerald Torres (Yale School of the Environment), Adrian Leighton (Salish Kootenai College), and Marlyse Duguid (Yale School of the Environment).

 

When Monumentizing Goes Wrong?: The Case of Kasha-Katuwe Tent Rocks National Monument

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This is related to yesterday’s post..Kasha-Katuwe Tent Rocks is considered to be a co-managed federal unit between the Cochiti Pueblo and the BLM. It’s been closed for three years.

Here’s a story from KRQE News 13.  The story starts out with how difficult it was to find anything out about the closure and when it might be reopened:

The National Monument was closed to the public in the 2020 pandemic shutdown and it remains closed today. Why? KRQE News 13 went digging for answers.

For months, emails and phone calls requesting interviews with the state’s Tourism Department, the Bureau of Land Management, the Secretary of the Interior’s Office, Congresswoman Teresa Leger Fernandez, and Senator Martin Heinrich were answered with replies such as, “We will not be providing a comment or participating in this story at this time.”

Cochiti Pueblo leaders also declined to comment. The BLM updated the statement on its website on April 28, during the weeks of KRQE’s requests for information. Finally, the BLM agreed to chat via Zoom.

“BLM has been meeting regularly with the Pueblo,” said Jamie Garcia, an outdoor recreation planner with the BLM. “We have been in discussions about what reopening looks like.”

This isn’t very transparent.  Conceivably it could have been possible to give that answer sooner. One wonders if the co-management aspect may have made it more difficult to arrive at one answer that could be communicated.

On to the Monumentization aspect:

A ‘Double-Edged’ Sword

Garcia said they’re addressing long-standing issues including over-visitation, staffing needs, and resource protection, alongside Pueblo de Cochiti. “We’ve had such high recreation use and we want to make sure that we are taking a step back and really looking at that big picture item there, and seeing how we can move forward in a more sustainable and responsible way,” Garcia told KRQE News 13.

The Cochiti Pueblo remains closed citing Covid-19 restrictions, blocking road access to the national monument which sits on BLM land. As part of the presidential proclamation, the site is managed by the BLM in “close cooperation and partnership” with the Pueblo.

“I suspect that the designation of the National Monument was a double-edged sword,” said Dr. Smith. “On one hand, it provides resources and legal protections for preservation. But once someone sees a national monument on a map, it’s close to Interstate 25, it’s close to the Albuquerque-Rio Rancho-Santa Fe metropolitan areas — then that just becomes a magnet to draw more people,” Smith explained.

DR. GARY SMITH, UNM PROFESSOR

There’s a calculus here.. do more resources show up in enough quantities to deal with the enhanced visitation from Monumentizing? What, I wonder, was the Monument protected from?

Data published in a government-issued 2020 science plan shows visitation levels each year since the monument designation. In 2000, Tent Rocks recorded 14,674 visitors.

In 2001, that jumped to 25,000 annual visitors with the presidential proclamation. And since then, visitation has soared to more than 100,000 people a year before the covid shutdown.

(Tent Rocks Visitations by Fiscal Year )

“But even before the pandemic, I recall seeing activity discussions between the BLM and Cochiti trying to think about how to handle the large crowds, that it was having a detrimental impact on the landscape that they were joint stewards to preserve,” explained Smith.

During Spring Break 2018, KRQE News 13 reported on the massive line of cars waiting to enter Tent Rocks National Monument. Visitors were waiting 90 minutes just to park their vehicles.

“In the past few weeks, they’ve been over-capacity,” said Danita Burns during that Spring Break surge in 2018. “People from Australia, people that are coming in from Japan. It’s quite the destination now,” she said.

Monuments can attract tourists from outside the area.. this may be good for some in local communities, but lead to problems of overcrowding and reduction of the experience for locals and wildlife.

According to the pre-2020 data report, “Current visitation is nearly three times the original planned capacity,” which was designed to hold about 50,000 visitors annually. That’s been a concern for those working at the site.

Dr. Gary Smith with UNM students at Tent Rocks in 1992.

Timed ticketing, fee increases

So, will visits to the monument move to timed ticketing? Garcia says an online reservation system along with a fee increase has been proposed.

“We have not implemented anything yet, but it is something we would like to do, make sure that we can keep up with growing costs of supplies and demand,” Garcia told KRQE News 13.

Meanwhile, locals are still seeing advertisements for Tent Rocks, and still waiting for the monument to reopen. “Oh, I’ll look forward to going back again, for sure,” said Smith.

Dr. Smith said his colleagues and friends have been messaging him, asking for updates about the monument. “Do you think Tent Rocks will open this spring? How long can they keep it closed? You know, so it’s – everyone wants to know,” Smith said.

The Bureau of Land Management says it will update plans for Tent Rocks on its website, but they have yet to provide a timeline on when the national monument will reopen. Part of that depends on when the pueblo decides to open its gates to the public once again.

It seems to me that Monumentizing, in some cases,  is like many politically symbolic activities.  Someone announces something that sounds good and makes a splash… then leave the same old folks with the same pots of dollars and competing priorities to actually carry it out.

Co-Management with Tribes: A Roundup of Info Attempting to Clarify

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We read in news stories about co-stewardship (I think everyone at Interior and USDA is working on this) and co-management.

Co-stewardship is explained in this Joint Secretarial Order. It seems to be about sharing information and knowledge and working on stuff together.

The definition of co-management seems hard to get at, possibly because different reporters use the term differently. This seems relatively clear from  this High Country News piece:

The distinction between co-management and co-stewardship — terms the federal government uses for agreements to collaborate on land management with tribal nations — is subtle but important. “Co-stewardship” covers a broad range of collaborative activities like forest-thinning work in Alaska’s Tongass National Forest in partnership with the Hoonah Indian Association, where Indigenous knowledge can be included in federal management. But “co-management” is more narrowly defined. In those instances, tribal and federal governments share the power of legal authority in decision-making of a place or a species. This is the case with Kasha-Katuwe Tent Rocks National Monument in New Mexico, which is co-managed by the Pueblo de Cochiti and the Bureau of Land Management, and with the salmon fisheries in the Pacific Northwest.

In this story, also in HCN, they talk about Bears’ Ears and the new Arizona Monument as being co-managed:

The designation creates a commission for tribal nations with ancestral ties to the area — in this case 13 distinct tribal nations — to manage the lands within the monument alongside the federal government, similar to the commission established for Bears Ears.

As we previously discussed on TSW, though, establishing an advisory commission does not necessarily lead to sharing decision-making authority with the group.  The Black Hills National Forest, for example, has a FACA committee but the committee does not “co-manage.” The current Admin always holds all the legal cards in any decision and in any litigation, to defend or not or settle.

There is a fascinating legal paper by Monte Mills worth taking a look at if you are interested. The below is from pages 145 and 146.

As for delegation of authority, Obama’s Proclamation differs from the proposal submitted to the him by the Bears Ears Inter-Tribal Coalition.
The Coalition carefully dissected the issue of what constitutes a lawful delegation of authority to tribes and premised its proposal on the basis that a delegation of authority is permissible insofar as it is not total, and remains subject to the final decision-making authority of the Secretaries of Agriculture and Interior.417 Instead of delegating complete authority, “the Tribes and agency officials will be working together as equals to make joint decisions.”418
Though a modification of the Coalition’s proposal, Obama’s Proclamation establishes a substantive framework for collaborative
management of the Monument:
The Secretaries shall meaningfully engage the Commission or, should the Commission no longer exist, the tribal governments through some other entity composed of elected tribal government officers (comparable entity), in the development of the management plan and to inform subsequent management of the monument. To that end, in developing or revising the management plan, the Secretaries shall carefully and fully consider integrating the traditional and historical knowledge and special expertise of the Commission or comparable entity. If the Secretaries decide not to incorporate specific recommendations submitted to them in writing by the Commission or comparable entity, they will provide the Commission or comparable entity with a written explanation of their reasoning.419

This sounds a bit like a “response to comments”, but OK. Bottom line- does co-management mean that feds and Tribes are peers in decision-making- any decision needs to be agreed upon by both parties?  Or are Tribes “the most important stakeholders to listen to.” I’m sure these would be functions of specific legal authorities.  Either way, is there a reason not to co-manage everything if the legal aspects could be worked out?

Finally, from the second HCN article:

While many see co-management as a step toward land return, environmental historian and ethnobotanist Rosalyn LaPier, who is an enrolled member of the Blackfeet Tribe, and Métis, has pushed back against that idea. In an interview with High Country News last week, LaPier said that the federal government should be ready to return public land to tribes who want it now, without requiring co-management as a first step. “The federal government doesn’t want to let go of their say over public lands and allow Indigenous people to take leadership. And we’re fully prepared to take leadership,” LaPier said. Pointing to intensifying wildfires in the Western U.S., which are due in part to a century of fire suppression, she added, “Why would Native nations want to co-manage with the United States, when the United States government has shown over and over again how they mismanaged public lands?”

I wonder if there’s a list of the Tribes who want land return ASAP.

The Missing Utes and Coverage of the Uinta Basin Railway Project

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I think this is the preferred route. here’s the website: https://uintabasinrailway.com/

If you look at media coverage of this issue, sometimes you don’t even see the Ute connection mentioned. I wasn’t keeping a list, but ran across a recent story from a few days ago on NPR from Aspen Public Radio in which Utes were not mentioned among the folks who support the railroad.

The below op-ed ran in the Denver Post on August 14, 2023.

It’s also interesting what Chairman Murray of the Ute Tribe Business Committee has to say about consultation on the Camp Hale Monument designation, and the Tribe’s hunting and fishing rights.

As Chairman of the Ute Indian Tribe Business Committee, I am shocked and disappointed by the actions of Gov. Jared Polis, U.S. Senators Michael Bennet and John Hickenlooper, and other state lawmakers that reflect disregard and contempt toward our peoples’ ancestral ties to Colorado.

Ute Indians occupied what is now the state of Colorado from time immemorial. Although the federal government forced us to relocate to eastern Utah in what we today call our Uintah and Ouray Reservation, Colorado remains our ancestral homeland.

Once we were forcibly relocated to the arid Uinta Basin, energy mineral production has become the main source of livelihood for our people, who would otherwise struggle to put food on the table, access education, and provide shelter for our families.

The Uinta Basin Railway Project would provide much-needed infrastructure and allow our Tribe to access energy markets nationwide, but Colorado is dead set on standing in our way. Governor Polis and Colorado lawmakers are lodging a campaign to shut down this project simply because it would connect our oil with a wider market.

As planned, the Uinta Basin Railway is an 88-mile single-track rail line that would connect the Uinta Basin in northeastern Utah to the National Railway Network, providing energy mineral producers in this region with the infrastructure needed to access markets throughout the nation for the first time. About eight miles of track would cross Tribal lands on the Uintah and Ouray Reservation.

While the federal permitting process is near completion, Eagle County, Colorado, has joined environmental advocacy groups in filing suit asking that these federal permits be set aside, causing yet further delay in groundbreaking on the project.

Senators Bennet and Hickenlooper are using the recent derailment accident in Ohio as justification to deny us the ability to market and transport the oil produced on our land from our Reservation. This is a flawed comparison. The Ohio derailment involved highly hazardous, flammable substances. The unique crude oil we produce from our Reservation is a waxy product that does not flow like regular oil and is not flammable. It is transported by rail as a solid, not as a hazardous liquid.

Efforts by Polis and Colorado lawmakers to block this important project reveal their deference to environmental lobbyists and advocacy groups whose livelihoods do not depend on sustainable energy development.

These groups blindly oppose any and all oil development, and Colorado officials have clearly bought in. It is a shame that Colorado continues to act with no regard for the adverse impacts on a marginalized people who have long been stewards to the lands and resources they claim to protect. This is not environmental justice. In fact, it is the very opposite.

Opposition to the Uinta Basin Railway Project is not the only recent example of Colorado’s dishonorable treatment of our Tribe.

We retained hunting and fishing rights within Colorado boundaries under our treaties with the United States, but our efforts to work in cooperation with the Colorado state government to exercise and enforce our treaty rights have been stonewalled every step of the way.

Following years of refusing to meet with us as the elected leadership of the Ute Indian Tribe on this issue, Governor Polis and his administration are now refusing to enter into a cooperative agreement surrounding the exercise of our treaty rights. Governor Polis has no authority whatsoever to interfere with our treaty rights, and our Tribe plans to proceed in exercising our rights as affirmed by the Supreme Court in its 2019 opinion in Herrera v. Wyoming.

Unfortunately, the Biden Administration has followed Colorado’s lead in ignoring our treaty rights surrounding our ancestral homelands.

President Joe Biden recently established the Camp Hale National Monument in the middle of our ancestral lands. This was done with no government-to-government consultation with our Tribal leadership whatsoever.

Over a century after our people were stripped from our homeland and pushed into the Utah desert, the Biden Administration now seeks to further dispossess our ties to these lands by designating a monument without including us and attempting to erase our history and connection to these lands.

Julius T. Murray III is chairman of the Ute Indian Tribe Business Committee. The Ute Indian Tribe resides on the Uintah and Ouray Reservation in northeastern Utah. Three bands of Utes comprise the Ute Indian Tribe: the Whiteriver Band, the Uncompahgre Band, and the Uintah Band. The Tribe has more than 3,000 members, with over half living on the Uintah and Ouray Reservation. The Ute Indian Tribe operates its own tribal government and oversees significant oil and gas deposits on its 4.5 million-acre Reservation. The Tribal Business Committee is the governing council of the Tribe.

Friday Roundup: Renewable Resistance, European Wolf History and King Cove Update

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Lava Ridge Wind Project Extended Post- DEIS and Comment Period into Next Administration

It seems like the Biden Admin is doubling down on efforts by their conservation friends (e-bikes, Monumentizing, conservation leasing), and possibly throwing their renewable friends under the bus.
People didn’t want Lava Ridge, but then local people seldom want big wind projects. So I wonder what the political calculus was about this one? If someone knows the inside scoop, please share at my email on the donate widget to the right. Privacy provided.

Still No Wolves For You, And Some Wolf History

Colorado Sun article. There was an initiative put on the state ballot to reintroduce wolves, even though they were moving down on their own from Wyoming.  Colorado Parks and Wildlife seems to have done an excellent job of listening to people about this and coming up with a plan.

Well worth a read.

One thing that caught my eye was this:

Lambert credits the negative perception of wolves to a much older source: the colonization of North America.

“When white, colonizing Europeans hit North America, they were kind of shocked to encounter animals that they had completely extirpated in Western Europe,” she said.

One thing I have found is that not many people are familiar with European history at the points when people left for what is now the US. If we took the timing of Spanish colonists in Santa Fe (since the British weren’t here in the west at that time) as 1610, well.. here’s what Wikipedia has to say about wolves in Western Europe (check out the decline).

If we take Spain specifically, here is a journal article that says:

Wolf records were widely distributed in mid-19th century Spain, being present in all its mainland provinces. The probability of occurrence was positively associated with landscape roughness and negatively with human population density and the landscape suitability for agriculture.

Perhaps the story is simpler. Wolves ate livestock there and were killed.  People moved to North America, where wolves ate livestock and people killed them. Also there’s the issue of wolves killing people, which Wikipedia also has an entry on.  My point is not that wolves are currently killing people here in the US; my point is that it was not unreasonable for people from countries where wolves-killing-people happened at times that wolves-killing-people was going on, to be afraid of wolves-killing-people.  For example, if you migrated to the US from India in the 1800’s, at least from the provinces mentioned below, it would seem fairly reasonable.

Records of wolf attacks in India began to be kept during the British colonial administration in the 19th century.[33] In 1875, more people were killed by wolves than tigers, with the worst affected areas being the North West Provinces and Bihar. In the former area, 721 people were killed by wolves in 1876, while in Bihar, the majority of the 185 recorded deaths at the time occurred mostly in the Patna and Bghalpur Divisions.[34

There’s a Denver Post story with more interesting details about the other States’ willingness or not to give up their wolves. For example,

Montana officials, too, are still considering Colorado’s request, said Brian Wakeling, game management bureau chief at Montana Department of Fish, Wildlife and Parks. The state’s Fish and Wildlife Commission would make the final decision on whether to send wolves to Colorado.

Under state law, Montana wildlife officials would have to complete an environmental assessment before the commission could make a decision, he said. They may also want to complete a more rigorous environmental impact statement because of the controversy surrounding wolves, which could slow down decision-making, Wakeling said.

“It’s hard to sit here today and tell you whether that would take six months or a year,” Wakeling said.

Then there’s getting a 10j rule from the feds. The deadline, based on the initiative is Dec. 31.

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Wind and Solar Resistance: Not Just Here

Robert Bryce wrote a lengthy piece on his Substack, summarizing local resistance around the world as well as links to his Renewable Rejection Database. Here’s one example from Israel. I wonder how many other rural people feel “an almost sacred bond” for land “passed down by generation.” The concept of “you need to lose so that other people can win” is an uphill push politically. Much depends on “what are the alternatives?” and our sympathies for the people feeling the pain.

On June 24, The Times of Israel reported that “The head of the Druze community in Israel, Sheikh Muafak Tarif, has warned the government to stop the work to construct wind turbines in the Golan Heights, or face ‘a reaction the country has hitherto not seen.’” The article continued, saying the wind project has:

Angered Druze villagers who see the project as a threat to their agrarian way of life, an encroachment on ancestral lands and a solidification of what they view as Israel’s occupation of the territory. They contend that the giant, soaring poles and the infrastructure needed to construct them will impede their ability to work their plots. They also say the turbines will disturb the almost sacred bond they feel to their land, which is passed down by generation and where families go for fresh air and green space.

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Native Alaskans Flout or Flaunt: King Cove Version

I’ve been trying to reverse engineer who really has the ear of the Biden Admin by noting when they flout the wishes of Indigenous people and when they flaunt them. Certainly the recent Monumentizing in Arizona was a flaunt. King Cove, however, remains a flout. From June of this year, on Alaska Public Media.

The Trump administration agreed to a land swap in 2019 that would allow construction of the road. But President Biden’s Interior secretary, Deb Haaland, said the department wouldn’t go through with it and moved to pull out of the agreement this March.

On June 15, the court of appeals sided with the Department of the Interior, and granted Interior’s motion to dismiss the case.

“We’re glad to see the Izembek court case wrap up after the Interior Department’s withdrawal of the challenged land exchange,” said Bridget Psarianos, an attorney with Trustees for Alaska, a non-profit environmental law firm.

But lawyers for King Cove argue that the land exchange is still valid. They say the land exchange agreement can only change if a future court rules favorably on the decision to withdraw, and that they couldn’t just dismiss the motion in court.

“We believe the land exchange is still legal and valid,” said Della Trumble, the chief executive of King Cove Corp. in a statement. “As Native people, we will continue to fight for our rights and demand tribal consultation, which the Department of Interior failed to honor before executing its March 14, 2023 decision to terminate the land exchange.”

Although the Department of the Interior pulled out of this particular land swap, it said it’s looking into alternatives.

Who were the plaintiffs?
National Audubon, The Wilderness Society, Defenders of Wildlife, National Wildlife Refuge Association, Friends of Alaska National Wildlife Refuges, Wilderness Watch, Alaska Wilderness League, Center for Biological Diversity, and Sierra Club.

San Carlos Apaches and Forest Service Sign Contract for Restoration

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San Carlos Tribe Chairman Terry Rambler (right) signs an agreement with Kurt Davis, deputy forest Supervisor for the Coronado National Forest, to allow the tribe to contract with the federal government to to allow the tribe to take part in large-scale restoration efforts on the Apache-Sitgreaves, Tonto and Coronado national forests and other ancestral lands in order to return them to a natural and historic state.

San Carlos Apache Tribe finalizes restoration agreement with Forest Service

“The U.S. Forest Service and the San Carlos Apache Tribe have forged an agreement to allow the tribe to take part in large-scale restoration efforts.

It was made official earlier this week at a signing ceremony on the reservation.

The tribe now has the legal authority to contract with the federal government to work on the Apache-Sitgreaves, Coronado and Tonto national forests and adjacent ancestral lands while tapping $24 million in infrastructure funding.

The treatments will include fuels reduction and use prescribed fire to return the landscape to a historical and natural state in a culturally sensitive way while emphasizing clean water, medicinal plants and traditional food sources like acorns, berries and wildlife. Initial projects have already begun.”

This seems like a great idea and much easier than “conservation leasing”.. just sign a contract, figure out the projects, and get them done..

Biden Admin Via Forest Service Approves Land Swap for Rio Tinto’s Arizona Mine

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Copper core samples at Resolution’s processing facility. Photo by the NY Times.

Sometimes the Biden Admin goes with the interests of Indigenous groups and other times it seems to go against them. I wonder what we can see if we examine the pattern of what one might call the “flouts and touts” of various policies and reverse-engineer what interests might be calling the shots at what point in time. When- what kinds of projects, where, do they flout? When do they tout? Can we see flouting and touting in stories of various media outlets? And of course, if Indigenous groups disagree, how is that considered and reported? How does the Admin consider the opinions of elected Tribal officials versus other Tribal groups when they seem to be in conflict?

We can’t be sure that the Rio Tinto case is a flout, since we’re not sure whether the President could do anything differently.

Another interesting thing about this case is that the opponents are a group called Apache Stronghold, “a nonprofit group comprised of members of the San Carlos Apache Tribe and others” and they are supported by people for religious liberty (the Becket Fund), which is another interesting twist on the issue. For those interested, that group is a conservative nonprofit, according to the NY Times.

Here’s a link to yesterday’s Reuters story.

– The U.S. Forest Service plans to re-publish an environmental report before July that will set in motion a land swap between the U.S. government and Rio Tinto (RIO.L)(RIO.AX), allowing the mining giant to develop the controversial Resolution Copper project in Arizona.

The move would be the latest blow to Native Americans who have long opposed the mine project, which would destroy a site of religious importance but supply more than a quarter of U.S. copper demand for the green energy transition.

The complex case centers around a land swap approved by Congress in 2014 that required an environmental report to be published, something the Trump administration did shortly before leaving office. President Joe Biden then unpublished that report in March 2021 to give his administration time to review the Apache’s concerns, though he was not able to permanently block the mine.

Meanwhile, Apache Stronghold, a nonprofit group comprised of members of the San Carlos Apache tribe and others, sued to prevent the transfer of the federally-owned Oak Flat Campground, which sits atop a reserve of more than 40 billion pounds of copper, a crucial component of electric vehicles. Several courts have ruled against the group.

Joan Pepin, an attorney for the Forest Service, told an en banc hearing of the 9th U.S. Circuit Court of Appeals on Tuesday that “the prediction for that (new environmental report) is to be ready this spring.”

The Forest Service is not waiting for the court’s ruling to publish the new report, Pepin said, adding that the agency does not believe an 1852 treaty between the U.S. government and Apaches gives Native Americans the right to the land containing the copper.

“This particular treaty is just a peace treaty. It doesn’t settle any rights to land and it doesn’t create any land rights,” Pepin told the court.

The 11 judges at the hearing questioned all sides about the legal concept of substantial burden and whether the government can do what it want with federal land, even if it prevents some citizens from fully exercising their religious beliefs. A full ruling is expected in the near future.

Wendsler Nosie, who leads the Apache Stronghold, said at a rally after the hearing that Pepin’s statements showed Biden – who controls the Forest Service – has not made opposition to the mine a “priority” for his administration.

“It’s not over. It’s just made us stronger, tougher, and deeply committed to our prayers,” Nosie said.

A Rio spokesperson said the company is closely following the case and respects the legal process, but believes “that settled precedent supports” the rejection of Apache Stronghold’s claims by a lower court. Rio has said it will smelt copper from the project inside the United States.

Representatives for the San Carlos Apache tribe were not immediately available to comment, nor were representatives for BHP, which is helping Rio develop the mine.

One wonders whether the Tribe itself has a position, or whether they are staying out of it. If individual members don’t agree what does that mean? As an earlier New York Times story reported

There are differing opinions on the merits of mining even on the San Carlos Apache reservation. Some people view the mine as an affront to their traditions, while others consider it an economic opportunity and a source of employment.

. There’s a lot of detailed context in that story.

I think this is also an interesting angle.. “President Joe Biden then unpublished that report in March 2021 to give his administration time to review the Apache’s concerns, though he was not able to permanently block the mine.”

Despite some organizations that blame Biden for not shutting down oil and gas leasing aka “living up to his promises” he does have to operate within legal boundaries.
Perhaps he can’t due to something related to the 1872 Mining Law. Does anyone know?

Finally, a shout out to all the FS employees working on this project!

Native Alaskans and Biden Admin vs. Some ENGOs: More on the Izembek Road Case

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This photo from the Rewilding Institute’s website is attributed to George Wuerthner who is a member of their Leadership Council

It’s interesting to watch how different ENGO’s look at different projects where Indigenous people have an interest one way or another. If you folow these issues, you have to be very careful as often the ENGO’s don’t mention in their press releases when they disagree with Native communities, but do mention them when their interests align. Of course, I don’t blame the ENGO’s, they are just marketing their points of view as best they can. It’s pretty much the reporters who have to ask the questions, and seek out information on Indigenous views.

Defenders of Wildlife is widely considered to be an ENGO with the ear of the current Administration (and some previous ones).

Here’s a piece from their website with nary a mention of who wants the road and why, only that the gravel road would be “commercial.”

The 9th Circuit Court of Appeals will revisit a decision that upheld a land exchange that would make way for a road that would run through Izembek National Wildlife Refuge in Alaska. On November 10, the court threw out the Trump-era decision and ordered a rehearing of the case.

Upon hearing the news, Defenders of Wildlife’s President and CEO Jamie Rappaport Clark released the following statement:

“We are grateful the Ninth Circuit has chosen to rehear this case and reconsider a deeply flawed decision. Defenders of Wildlife is optimistic that the court will ultimately reject this illegal land exchange and protect the irreplaceable wilderness and wildlife habitat of Izembek National Wildlife Refuge.”

Before the case went to the Ninth Circuit Court of Appeals, two Alaska District Court decisions rejected such an exchange. The Biden administration defended the Trump era land swap on appeal. A three judge Ninth Circuit panel ruled 2 to 1 in March that the Interior Secretary could use the land exchange provision of ANILCA to gut a National Wildlife Refuge and congressionally designated Wilderness Area without congressional approval. The panel also found that ANILCA’s purposes include providing economic benefits to the State and corporations within it, contrary to the law’s plain language explaining that it is intended to protect conservation and subsistence in Alaska.

That court’s decision upheld a land swap designed to make way for a commercial gravel road in Izembek National Wildlife Refuge. Law firm Trustees for Alaska filed a petition for rehearing en banc in April 2022 asking the entire Ninth Circuit Court to review the split court decision that threatens Izembek lands, waters and animals, and has dangerous and expansive implications for all public lands in Alaska.

Trustees for Alaska represents nine groups in the lawsuit including Defenders of Wildlife. They also represent Friends of Alaska National Wildlife Refuges, Alaska Wilderness League, the Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, the National Wildlife Refuge Association, Sierra Club, The Wilderness Society, and Wilderness Watch.

It’s interesting that many of these groups, known to be close with the Biden Admin, split with them on this issue.
The Rewilding Institute was more upfront about who wanted the road and why, and why Rewilding thinks they are wrong..

The Biden Administration, with the apparent support of Secretary of Interior Deb Haaland, has sided with Alaskan Natives and the previous Trump Administration to approve the construction of a road through the designated wilderness of Alaska’s Izembek National Wildlife Refuge….

Other Alaskan native groups support the land exchange, likely because they believe they could use the precedent to further their own economic interests.

I had never heard this one before, it’s a bit of an argument that the Native Alaskans are not negotiating in good faith..

The Aleut people living in the village of King Cove claim they need the road for medical emergencies so that injured people can readily access an all-weather runway in nearby Cold Bay, a former military base.

Currently, access to Cold Bay’s runway is by boat or from a smaller airstrip in King Cove. But in stormy weather, travel by any means, including by road, is often dangerous and difficult. This situation is by no means unique to King Cove. Many Alaskan villages are far from hospitals and infrastructure that many Americans take for granted.

However, many wilderness advocates believe the real reason for the road is to carry fish captured by the commercial fishing fleet in King Cove to planes in Cold Bay for rapid shipment to markets.

I appreciate (although don’t agree with) the consistency of this group.. they don’t seem to care whether people are Indigenous or not, we are all equally subordinate to their vision of economic development for communities that want it, or “access to the same infrastructure that many Americans” have as a bad thing.

Mostly we tend to think of this as a tendency of international ENGOs (we developed and used resources, but we think you shouldn’t, for environmental reasons) but apparently this is not an entirely international phenomenon.

Tribal “Stewardship” But Not Agreement? The Thacker Pass Lithium Case

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I think we’re all for Tribal consultation and co-stewardship (depending on exactly what that means). Here’s a quote from Interior Department Guidance to Strengthen Tribal Co-Stewardship of Public Lands and Waters:

said Secretary Deb Haaland. “By acknowledging and empowering Tribes as partners in co-stewardship of our country’s lands and waters, every American will benefit from strengthened management of our federal land and resources.”

Of course, federal authorities stay the same, that is, to consult and not go with what Tribes want. It seems to be a focus on the process (consultation) rather than the product (decisions that Tribes agree with). This sounds like a bit of an echo of ordinary public involvement. We can have a great process and not decide the way any particular group wants. But the term “co-management” to me implies more than “we listen to your opinion more carefully than other groups”. But if the Admin can still overrule Tribes, are they any more “empowered” than before an enhanced consultation process?

There’s also the scale thing. For example, when DOI had their public session on oil and gas regulations, that I covered here, Tribes and Native Alaskans said they were for “all of the above” and yet this did not seem to transfer directly to DOI policy. Perhaps the scale is the problem, and Tribes should be consulted on the overall decarbonization- climate- energy policy in its entirety. Because the solar-wind-minerals-uranium under all scenarios would occur on federal lands. To the extent that it does, maybe the USG should back up and consult on the broader-scale policy- both energy and climate. Perhaps have an elected Tribal representative in all White House climate discussions?

Anyway, here’s a story from “This is Reno” on Tribes suing the BLM:

Three Native American tribes filed this week a new lawsuit against the Bureau of Land Management over Lithium Americas planned Thacker Pass lithium mine.

The lawsuit comes after federal Judge Miranda Du mostly ruled against the plaintiffs seeking to stop the project near the Nevada-Oregon border. It was filed Thursday by the Reno-Sparks Indian Colony, Burns Paiute Tribe and Summit Lake Paiute Tribe in Federal District Court.

The tribes are alleging BLM withheld information from the state “and lied about the extent of tribal consultation in order to secure legally required concurrence about historic properties” at Thacker Pass. They are also alleging BLM lied and misled the tribes about other aspects of the mining project.

“The new lawsuit is also strengthened by the addition of the Summit Lake Paiute Tribe, one of the Tribes that the BLM claims to have consulted with prior to issuing the [record of decision],” they said in a press statement. “Summit Lake and both other tribes the BLM claims to have consulted (the Winnemucca Indian Colony and Fort McDermitt Paiute-Shoshone Tribe) have disputed BLM’s assertion that any consultation took place.”

The Winnemucca Indian Colony, they said, was unable to intervene in the case for not filing soon enough.

“When the decision was made public on the previous lawsuit last week, we said we would continue to advocate for our sacred site PeeHee Mu’Huh,” said Arlan Melendez, chair of the Reno-Sparks Indian Colony. “It is also the very same place where our people were massacred (never laid to rest properly) by the U.S. Calvary. It’s a place where all Paiute and Shoshone people continue to pray, gather medicines and food, honor our non-human relatives, honor our water, honor our way of life, honor our ancestors.

“The Thacker Pass permitting process was not done correctly. BLM contends they have discretion to decide who to notify or consult with,” he added. “They only contacted 3 out of the 22 tribes who had significant ties to Thacker Pass.”

There’s also a good comprehensive story on E&E News that is open to everyone. They took a political slant to it..

“Democrats and Republicans are both pro-development in this state and always have been,” Lokken said.

Some Democrats are more likely to be concerned about the environmental impact of mining and about ensuring that the state gets tax revenue from the industry, added Lokken, but development has ultimately won out.

“The party decided a long ago that this kind of development is fine,” he said.