Tribes and Tribal Management

Biden DOJ Defends Bernhardt Decision on King Cove: What Makes Something a “Political” Decision?

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Interior Secretary Deb Haaland, left, is honored at an assembly at the King Cove School. (Marc Lester / ADN)

Saturday I posted about a controversy between Tribal people and a ski area on federal lands.  I’d like to place that story in conversation with another story, the King Cove controversy.  We don’t hear much about it, because it’s about a Fish and Wildlife Service (US DOI) administered area, and we usually talk about the FS and BLM.  But it has many familiar issues.  Native Alaskans in the village want a road to access a hospital.  Some national ENGO’s don’t want the road.

So we often talk about “political” decisions and decisions being “corrupted”.  I’d like to delve into this further.  As a person who has worked on numerous controversial EISs and rulemakings, I think it’s safe to say that there are a number of reasonable options that could be chosen.  What makes something “political”? Obviously there are numerous levels of internal and well as external politics. I think to agency people it might mean “a decision that I don’t agree with that favors interests I don’t like.” But then I think perhaps it’s about politics in the sense of “rewarding your friends and/or punishing your enemies,”   perhaps beyond what is a reasonable approach toward your stated aims.  For example, I think if the Admin’s stated goal is decarbonization, then shutting down US production on federal lands seems like more punishing oil and gas companies, or assuaging NRDC or ??, more than a rational policy call.  Others may disagree.  I would call that a political decision in that sense.  Do you agree or disagree or do you have a different definition?

So let’s look at the King Cove cases, which looks like Native Alaskans who need the road vs. (some) national ENGO’s.  The Admin appears to be picking a side by defending the decision (pro-road). Is this political? Was Sally Jewell’s decision not to political (assuaging ENGO supporters)?  Was Bernhardt’s political? Are they all political?

An interesting aspect of this case is that  he same argument (the federal property rights trump other considerations) seems to be made by these groups for Native people as for any local people.

Does this sound familiar?From an Anchorage Daily News story on Secretary Haaland’s visit.

Others complained to Haaland that outsiders can access Izembek to hunt and fish, and that much of the opposition to the road comes from conservation groups based on Alaska’s road system or in the Lower 48.

“Those folks live there,” said Skoey Vergen, chief executive of Aleut Corp., the Native corporation for the King Cove region. “These folks live here.”

Those dissenting groups were not present Wednesday in King Cove. But they’re still examining last month’s court ruling approving the Trump-era land exchange, and an appeal is an option, said David Raskin, president of Friends of Alaska Wildlife Refuges.

“This refuge is not owned by the people of King Cove. It is a great, valued possession of the people of the United States,” Raskin said in a phone interview Thursday. “And to have a small community like that reap horrible damage on one of the jewels of the refuge system would be a travesty, and a terrible blow to the American people.”

It appears that 11 miles of the road between King Cove and Cold Bay have not been built and that is what this decision is about. People from King Cove want a road to the hospital in Cold Bay.

Would we say that if the road goes through it is politics, or if the road doesn’t go, through it’s politics.  Do we feel more sympathy for the native Alaskans, or for far away people with environmental concerns.  If the Biden Admin were to give in to them, would that be undue political influence.

What groups, might we ask, are concerned about this road (desired by local Native Alaskans) to the extent that they are litigating it? Well, plaintiffs include The Wilderness Society; Defenders of Wildlife; National Audubon Society; Wilderness Watch; Center for Biological Diversity; National Wildlife Refuge Association; Alaska Wilderness League; and Sierra Club (collectively “Plaintiffs”). Many of these are powerful friends of the Obama/Biden Administrations.  Perhaps why Sally Jewell made her decision (political influence?).

And how did our friends at the New York Times cover the Jimmy Carter angle?  “The legal battle over the gravel route could gut an environmental law that the 39th president called one of his highest achievements.”

They are arguing the precedent of course, not the actual road.

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Another interesting angle is how political decisions get validated or invalidated by the courts.

I got hopelessly confused over the legal questions involved.  At first it sounded a little like that Sec. Jewell made a decision from an EIS, and Sec. Bernhart couldn’t make a different decision off the same EIS by weighing things differently.  Then the judges became frustrated at having their time potentially wasted because conceivably Sec. Haaland could make a new decision (with a new EIS?) .

But then there’s this explanation in the Anchorage Daily News article.

Trump’s administration was good to King Cove. After a federal judge invalidated a land exchange aimed at authorizing the road, Trump’s Interior Department redid the plan and tried it again. A different judge rejected it a second time, in 2020. But last month, a federal appeals panel reversed that decision and said the land exchange could proceed,..

In the NYT article:

The exchange was authorized by Congress during the Obama administration, but was rejected by Sally Jewell, then the interior secretary, after a review found it would cause irreversible damage to the refuge and its wildlife.

If Congress asks the Admin to do something, it can just decide not to?  Hopefully someone knowledgeable can explain.

Judge Kim McLane Wardlaw, a Clinton appointee, disagreed with her two colleagues, writing in a dissenting opinion that Bernhardt never explained the reasoning for this policy shift from Jewell and that she would have found that the land swap violated the Administrative Procedure Act and other federal laws.

DOJ argues in its brief that Bernhardt’s explanation placing public welfare over other concerns “sufficiently explained the change in policy,” in compliance with the Administrative Procedure Act, and that no other documentation was needed.

I thought that it was interesting that of three judges two thought (and DOJ thinks) that it was adequately explained, and one thought not.  That’s why to us observers, it sometimes seems like when we go to court the decisions are more or less random.  If I were redesigning the system, the judge would have to explain what they thought would be an adequate explanation. Otherwise it’s like “bring me a rock”; decisions can’t be improved without constructive feedback.

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Here’s one from E&E News, part of a long interesting article from 08/08/2022, if you are interested in more background.

 

Tribes, a Ski Area, a Sacred Mountain and a Former Forest Supervisor: Plus, What Does it Mean to Consult Exactly and Who Decides?

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Laura Jo West stands outside the Coconino National Forest headquarters, where she served as forest supervisor for more than seven years.
Jake Bacon, Arizona Daily Sun

Many thanks to an Anonymous for sending this piece in! So many interesting facets.

Tribes, political issues, ski areas, how politically hot topics are managed internally by the Forest Service, the difficulty of developing collaborative relationships with shifting people, how the line officer is uniquely responsible relative to others on the forest, due to the line/staff structure. Questions.. would we feel differently were environmental interests pushing someone out of their responsibilities rather than a for-profit permittee? Would we feel the same way about, say, a rare-earth mining operation or a wind energy facility exerting political power? What does consultation actually mean if it doesn’t mean “we can’t go ahead without your sign-off”? If the same decision had been made during the last Admin, would the coverage have been different? The Forest Service is in the Executive Branch, so clearly elected officials get to decide ultimately.  Which can be extremely frustrating for employees who have sunk their hearts, souls and extra hours into a project or a relationship.

Because the article is so long, and interesting, and with no paywall, I’ll only post one excerpt. Check it out for yourself. And thanks again, Anonymous!

“The new agreement

Presented with the chance to create consensus and collaboration around a sacred site that had long been the “epicenter” of controversy, West had no illusions about the difficulty of the work ahead.

“It was going to be messy, it was going to be hard, we were probably going to have fights in various places along the way,” she said. “It was going to be a challenge. But I think it was the right challenge.”

For these reasons, West wasn’t willing to unilaterally promise a timeline for approving the new MOA. As recommended by federal directives, she went in with an “open mind” and wanted to develop a timeline through the consultation process.

“I wasn’t promising anyone, including the tribes, an outcome because I didn’t know what was going to develop,” she said. “It was a completely wide open, kind of scary place. But I thought, ‘That’s OK, we’re going to travel it together.’”

From Jocks’ perspective, West “saw an opening and took it.” Her efforts seemed “sincere” when he met with her about a new MOA.

“She wanted to do the right thing,” he said. “She understood there were limitations, but wanted to do what she could.”

But West’s approach of elevating tribal consultation soon caught the attention of Mountain Capital Partners (MCP), which owns Snowbowl. She said her refusal to offer a definite timeline was unacceptable to MCP and Snowbowl executives.

“I told them it could take at least a year and a half, maybe even two, to get a new MOA down because we’re opening up a conversation with tribes,” she said. “They said, ‘No, it only takes three months.’”

Snowbowl put forth the MOA timeline built around “minimum legal requirements,” but this did not satisfy West.

“We have the discretion to do so much better than that,” she said.

What happened next was somewhat expected, West said: Snowbowl complained. In January and February this year, MCP, the largest ski area collective in the Southwest, scheduled meetings with Forest Service Chief Randy Moore. In a Feb. 17 phone call with West’s superior, quoted in a grievance letter provided to the Arizona Daily Sun by West, regional forester Michiko Martin informed West that MCP stated it did not “believe [West is] a neutral and trusted agent. They believe that you are orchestrating a master plan to upend them.”

West was accused of being “pro-tribe” and “biased toward tribes” and otherwise “deliberately stalling to prevent MCP from implementing approved projects.”

“I asked regional forester Martin if MCP provided any evidence for their allegations,” West wrote in her grievance letter. “She replied they had not.”

While West expected that Snowbowl would complain, she did not expect how these complaints would be received by the Forest Service. On March 17, right after the conclusion of the meetings between MCP and Moore, West received a letter from Martin informing her that her authority to address the expiration of the Snowbowl MOA was rescinded “effective immediately,” and re-delegated to Steve Hattenbach, supervisor of the Cibola National Forest in New Mexico.

West said she was shocked that in one fell swoop, the Forest Service chose to accommodate MCP rather than defer to her judgment, despite the fact that she was a devoted employee and agency leader with 33 years of experience.

When asked to estimate the reason behind this decision, West speculated that it could have something to do with the influence of the National Ski Area Association (NSAA), whose board overlaps with MCP leadership.

“I was told by my boss that [the NSAA] lobby on behalf of the Forest Service for additional funding for recreation, infrastructure and things like that,” West said. “It was made clear to me in a conversation I had with my boss that it was a relationship the agency wanted to protect.””

Weekend of Op-Eds II. Why Forest Managers Need to Team Up With Indigenous Fire Practitioners – from L.A Times

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Here’s the link:

 

We have recently convened a partnership of scientists and Indigenous leaders from across the Western states to advocate for the kinds of policy solutions necessary to build beneficial relations between people and the land and to restore resilience to our ecosystems. We call for change by federal and state policymakers, land managers and fire agencies in four main areas.

First, state and federal governments must commit to active stewardship in a manner we have not seen before. Entire landscapes are now endangered, and we must begin implementing ecosystem-level solutions.

Second, active stewardship must include restoration of tribal stewardship across both public and private lands. The Biden administration and a handful of states have called for tribal co-management of public lands. Cultural fire practitioners must have the right to engage in fire management activities according to traditional Indigenous law. And federal and state governments must support long-term action with funding for tribal practitioners so they can expand capacity to do the work.

Third, federal land management agencies need the staffing to actively manage forests. Across the Western United States, the federal government manages around 45% of all lands and over 65% of forest ecosystems. Active stewardship of these expansive lands requires a significantly larger workforce with updated training to align with this new approach. If we are going to return beneficial fire to the landscape — as we must — we cannot expect exhausted fire suppression crews to take care of the needed work in their off-season.

Fourth, we must acknowledge that fire is part of our baseline environmental condition. Our bedrock environmental laws, including the National Environmental Policy Act, the Clean Water and Clean Air acts, and the Endangered Species Act, were adopted at a time when fire suppression was at its peak. We designed these laws with the faulty assumption that people could fully exclude fire and keep our air free from smoke and our ecosystems intact. Therefore, they treat our suite of fire stewardship practices the same as other human activity – akin to building a freeway or power plant – with the attendant regulatory review.

But fire will burn in one form or another. We need to develop laws and policies that encourage the kind of fire that people and ecosystems need. We cannot have clean water, clean air and critical wildlife habitat if we don’t first have resilient, fire-adapted forests.

We do not ignore the risks inherent in these solutions. The Forest Service recently acknowledged that its intentional fires were the ignition source for the Calf Canyon and Hermits Peak fires — vast and destructive blazes in New Mexico this year, the sort of fire that is never a goal of intentional burns. These events must be carefully studied and learned from. But calls to pause or otherwise shut down all use of fire are misguided. In nearly all cases, prescribed fires are kept within the confines of the planning area. The Forest Service’s decision in May to pause such intentional burns sends the wrong message to the public that these tools are inherently unsafe.

Perhaps more important, removing cultural and prescribed fire will make the threat of wildfires worse in the long run. Rather than focus on the source of the ignition as the “cause” of the harms from megafires, we need to focus on the condition of the forest. The current lack of resilience across much of the American West is largely responsible for the devastating effects. Keeping fire and other restoration techniques out of the landscape only makes infernos more likely and more expansive.

We have begun to imagine what “beneficial relations” might look like between people and our forested lands and call for a new stewardship policy. But we cannot implement them without fundamentally changing the systems we’ve built to try to keep fire out of our landscapes. The West is in a fire crisis. It is time to change the behaviors that caused it.

My take: I don’t think the pause “sends the wrong message”.  Sometimes you have to go slow to go fast (think collaboration).  According to the Hotshot Wakeup report on Friday there are many managed fires going right now, so there’s that.  And the folks I’ve talked to, who are working on the report have all kinds of improvements to be be considered. Last year the managed fire pause caused the same kind of drama, and yet here we are with plenty of WFWB going on as we speak. To my mind, “in nearly all cases” isn’t very compassionate to say, the folks in NM.  To me, “trust us, we’ve (mostly) got this, except when we obviously don’t” is actually the wrong message.

Bears Ears And Other Co-Management Efforts: Relocalizing Federal Land Decision-Making?

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Bears Ears co-management is said to be new and unique.  Inquiring minds wonder… shouldn’t Tribal views always be taken into account? Are there legal differences in various places that matter? What is different and better about the Bears Ears approach? How does it compare to other Co-Management efforts?

As I read the cooperative agreement, I wondered..

It sounds to me like there’s much “coordinate” and “provide opportunities for input” in this document.  It sounds perhaps like a Forest FACA committee. There’s even a “meaningful seat at the table before decisions are made.” As I read these, FLPMA also says something about coordinating with local governments. The meaning of that seems to be highly contested, will this work any better?  And who has a “meaningless” seat at the table?

On the face, the Agreement it sounds like something both the BLM and the FS should always do with Tribes with historic ties to that piece of federal land. Isn’t it?

Would co-management actually mean decision-making authority rests in both entities, and have a conflict resolution mechanism if the two groups disagree? Does co-management give veto power over projects and activities the Tribes don’t want, or similarly, if the Tribes want a project or activity, and the Agencies don’t, what happens?  Or do the legal authorities not really change and the Feds just have to take the views of the Tribes into account in some way.

Tribes have unique and special knowledge based on their history and experience with the landscapes, places, plants and animals. Other local people whose families have lived in an area, in some places for centuries (e.g. descendants of Spanish colonists in the SW), also have local knowledge. To what extent should incorporation of that local information take place in a similar way?

Will Tribal co-management ultimately make it less likely that federal lands issues will be dealt with at the national level by national interest groups? That in some sense, non-Native locals were seen to be by some national groups as  obstacles to correct management, but that doesn’t hold for Native locals? Anyway, check out the agreement for yourself and see what you think.

Here’s the text of the Bears Ears Co-Management Cooperative Agreement

C. In order to implement the direction in Proclamation 10285 and Proclamation 9558, the BLM and USFS agree to:

I. Ensure that Federal policies reflect the needs of Tribal Nations and that Tribal leaders have a meaningful seat at the table before decisions are made that impact their communities by centering Indigenous voices, including increasing the recognition of the value of traditional Indigenous knowledge and empowering Tribal Nations to make decisions for their cultural, natural, and spiritual values.
2. Honor applicable Executive Orders, Secretarial Orders, and Memorandums of Understanding including, but not limited to, Executive Order 13175 ofNovember 6, 2000, Consultation and Coordination With Indian Tribal Governments, Secretarial Order No. 3403: DOI and USDA Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship ofFederal Lands and Waters, and the November 16, 2021 Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of Indigenous Sacred Sites.
3. Coordinate and consult with the Commission throughout land use planning and subsequent implementation-level decision-making processes concerning Bears Ears, including preparation of a monument management plan and a travel management plan.
4. Identify opportunities for development of initiatives to cooperatively conduct land management programs concerning Bears Ears.
5. Seek specific opportunities to involve the Commission in public land management activities concerning Bears Ears.
6. Coordinate, organize, and assure appropriate government professional and management involvement in programs within the scope of this Cooperative Agreement.
7. Ensure that Tribal knowledge and local expertise is reflected in agency decision making processes for Bears Ears. Develop and share information and data with the Commission, to the extent possible, to facilitate understanding of issues and sites, such as providing pictures and other information to Tribal Elders who cannot travel, and facilitate Tribal Nations’ work and engagement on the management of the monument.
8. Provide opportunities for input on implementation of interim guidance issued jointly or individually by the BLM and USFS, including the BLM’s interim monument management guidance issued on December 16, 2021, which directs the BLM to (a) inventory monument objects and values, (b) review existing discretionary uses and activities within the monument to detennine whether their impacts are consistent with the protection of the monument objects and values, and (c) update existing monitoring plans to ensure protection of monument objects and values.
9. Provide opportunities for input to the USFS review of existing discretionary uses and activities within the monument to deternine whether their impacts are consistent with the protection of the monument objects and values.
10. Provide opportunities to review and provide input on BLM and USFS policy guidance for the Bears Ears prior to issuance.

Biden Admin Promotes Tribal Consultation and the Use of Indigenous Traditional Ecological Knowledge

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There’s an excellent article on EnergyWire on Biden Administration’s policies to increase consultation and collaboration with Tribes.

In the first Tribal Nations Summit since 2016, President Biden this month committed to, among other things, pursue more collaborative public lands management strategies with tribes and incorporate traditional ecological knowledge into federal agencies’ scientific analysis of projects.

“We’re going to make some substantial changes in Indian Country,” Biden said during the virtual event.

The same day, the government released a memorandum of understanding signed by 17 federal agencies agreeing to increase consultation and collaboration, in recognition of existing treaty obligations between the United States and tribal nations.

The announcements drew praise from Indian and environmental law experts, who saw the change as an important step for the Biden administration in improving relations between sovereign tribes and the United States.

The agreement, signed by agencies such as EPA and the Interior and Agriculture departments, is not legally binding, so it cannot by itself serve as the basis of a legal challenge to federal approval of energy projects on treaty lands.

But the agreement could help tribes hold the federal government legally accountable to its commitments to treat tribes as an equal partner in energy development on public lands.

The Biden administration’s pronouncements “may be relevant if there is litigation down the road, even if the tribe wouldn’t be able to just say, ‘You violated this [memorandum of understanding], and therefore, we’re suing you, and we win,'” said Monte Mills, co-director of the Margery Hunter Brown Indian Law Clinic at the University of Montana.

One way the agreement could bolster legal arguments is by allowing tribes to point to agency decisions that aren’t in accordance with the Biden administration’s consultation policies. Those arguments could be made in the context of lawsuits alleging violations of federal laws like the National Environmental Policy Act or the Administrative Procedure Act.

Besides consultation, there is also movement toward using Indigenous Traditional Ecological Knowledge to inform federal decision making.

The Biden team’s move for greater collaboration with tribes isn’t a new concept, but the effort to establish common standards across agencies is a change from previous administrations, experts said.

“To have a president acknowledge and pay homage to the idea that there are different forms of information and worldviews that are helpful, it’s exciting to see it in a public way,” said Karen Bradshaw, an environmental law professor at Arizona State University.

The White House Office of Science and Technology Policy and the White House Council on Environmental Quality released a memorandum this month that committed to incorporating “Indigenous Traditional Ecological Knowledge” into scientific and policy processes across the federal government.

The White House defined Indigenous knowledge as “a body of observations, oral and written knowledge, practices, and beliefs … applied to phenomena across biological, physical, cultural and spiritual systems.”

OSTP Director Eric Lander noted in a statement last week that Indigenous knowledge should “inform federal decision making.”

“This effort will give Federal agencies the tools they need to ensure Indigenous knowledge is appropriately considered and elevated,” Lander continued.

Schlenker-Goodrich of the Western Environmental Law Center said that increased consultation would complicate federal decisionmaking but would ultimately result in stronger agency actions.

“Bottom line, it’s the right move,” Schlenker-Goodrich said.

“It’ll accentuate complexity,” he continued, but the approach “also creates a path forward to better public lands management; respect for the first peoples of this continent; and a thriving, resilient future for all of us.”

It certainly make sense for the federal agencies to do consultation the same way. And it’s definitely the right thing to do IMHO. It’s also true that any efforts that complexify may create a tension with the Biden Admin desire for rapid renewable build-out on federal lands, as it has already done for mining for renewables.

RVCC Report on Good Neighbor Authority

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Here is a link to a report by Rural Voices for Conservation Coalition (RVCC) on the use of Good Neighbor Authority- extensive and comprehensive. There’s a section on key findings that’s a good summary. Below are the implications.


Key Implications

• Use of GNA will likely continue to look different across states and forest types due to differences in timber value, proximity to market, state capacity, existing agency programs and priorities, restoration needs, and other factors.

• The frequent inclusion of commercial restoration in Good Neighbor agreements among states most actively using the authority suggests the ability to generate and retain revenue is contributing to greater engagement with authority.

• State and region-level variation in GNA tracking and reporting, as well as trends toward writing agreements broadly and flexibly, could make it difficult to evaluate and report accomplishments and outcomes associated with GNA in a unified way. Such reporting may be important as the statute governing state management of revenue is set to expire in 2023 and would need reauthorization to continue.

• Across the states we examined, the authority was largely being used as a tool to implement projects that had been planned under NEPA, as opposed to state and federal partners planning projects with the express intent of implementing them through the authority. This trend suggests that thus far, GNA has not generally been used or considered as an avenue for collaborative planning.

• Counties and tribes were largely just beginning to explore the authority’s utility for accomplishing restoration and capacity-building goals.

• Positive perceptions among state and Forest Service employees about GNA’s potential to increase capacity for implementing restoration activities on federal lands, utilize and leverage specific expertise and capabilities of state agencies, increase treatment efficiency, and strengthen relationships between states and the Forest Service suggest the tool itself and the state-federal partnership it perpetuates will remain strong.

• There remains a need to more systematically evaluate and define the additive benefits of GNA. This could be aided by new or modified systems for tracking revenue generation and expenditure, partner contributions, and non-commercial restoration accomplishments associated with GNA timber sales.

Notes from Sharon:
* As to the Tribes just beginning to use the authority, I believe at the present time Tribes currently can’t keep funding the same way States can; and a change is currently being worked on in Congress.
* I liked how the authors separated and defined non-commercial and commercial restoration activities; seems very helpful.
*As to “new or modified systems for tracking”, I think the accomplishment and expenditure system for vegetation management could use a total revamp (including GNA), based on the kind of information needed to manage effectively today, not whenever it was developed. Including transparency with States, Congress, and stakeholders. Even without that, it seems useful to develop some kind of standardized approach before units diverge too much.

The Biden Administration and New Opportunities for Tribal Co-Management: E&E News Story

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Richard Sherman points out plants used in traditional Lakota medicine during a tour Friday at Badlands National Park.
Rapid City Journal Photo by Josh Morgan
Here’s an interesting story in E&E News with the headline “Tribes flex political muscle in quest to co-manage parks” .. looking more closely, it’s about all federal lands. I’ve excerpted sections about the PEER evolution in thought on this topic and the idea of the “peacemaking system.” The whole thing is worth reading, hope you all have access to E&E News. My favorite quote:

“Alternative dispute resolution, as they call it now, for us that’s not alternative,” Nez added. “That’s our original way of resolving issues in our communities. For Navajos, we call it the peacemaking system, where everybody comes in and has a seat at the table to talk things out.”

Co-management plans on federal lands could ignite thorny jurisdictional disputes among agencies. As an example, tribal projects involving forestland would have to include the Forest Service, which is part of the Department of Agriculture.

Even without such disputes, progress can come slowly, as Jarvis discovered in 2016 when the park service modified a regulation to allow tribal members to gather plants at national parks, but only for “traditional purposes.”

When he announced the change, Jarvis said it would support tribal sovereignty and the “unique cultural traditions of American Indians,” with plants used for everything from basketry to traditional medicines. To be eligible, a tribe must have “a traditional association” to certain lands within the National Park System. Any commercial uses are prohibited.

While the park service consulted with more than 120 tribes before making the change, Jarvis said NPS officials still encountered plenty of opposition from outside groups like the advocacy organization Public Employees for Environmental Responsibility (PEER).

“It took nearly 15 years to get that done, in part because of opposition by organizations such as PEER,” Jarvis said.

Yet as another sign of the changed political winds, even PEER has changed its stance on co-management.

In 2017, PEER warned that co-management with tribes could conflict with the park service’s desire to protect wildlife, protected species and forests.

At the time, Jeff Ruch, who then served as PEER’s executive director and who now heads the group’s Pacific field office, headquartered in California, said the concern was that “two sovereigns under one roof is a house divided.”

“If it is true co-management, then any disagreement could lead to utter impasse,” Ruch said.

But Tim Whitehouse, PEER’s executive director since 2019, offered a much different take on the issue, saying the organization welcomes “the Biden administration’s efforts to better engage culturally diverse communities in shaping the direction of conservation and public lands policies.”

“The co-management of parks and public lands with tribes must be part of that discussion, as well as guaranteeing tribes access to their cultural lands,” he said.

Asked to explain his organization’s change of heart, Whitehouse said it was the result of “a much-needed evolution in thinking on these issues.”

I wonder whether commercial uses by Tribes would work on BLM and FS?

As longtime friends, Nez said that he and Haaland “rely on each other’s counsel for a lot of things” and that she now will get a chance to help fix “the wrongs of the past” by advancing co-management plans. He said the idea is gaining in popularity as more Americans — tribal members and non-tribal members alike — seek to be caretakers of the land.

“Look at what’s happening in California, the over-forestation,” he said. “If you would allow people to harvest firewood, that will help in cleaning up, and that way large-scale fires don’t happen. You see, that’s the perspective that Native Americans can bring to the table.”

If allowed to hunt more on public lands, Nez said: “We’re not going to kill all the animals because we as Native Americans believe that you just take what you need at the time, for instance the winter.”

And Nez said that giving tribal members more leeway to collect roots, plants and herbs from more national park sites could also help lead to medical breakthroughs, if tribes are only given the chance.

“Maybe we even have the cure for COVID-19, who knows?” he said.

As for making all this work, Nez said there’s an easy answer: consensus.

“That’s where both sides have to agree on moving into the future,” he said.

“Alternative dispute resolution, as they call it now, for us that’s not alternative,” Nez added. “That’s our original way of resolving issues in our communities. For Navajos, we call it the peacemaking system, where everybody comes in and has a seat at the table to talk things out.”

We’ve Been Adapting to Climate in These Places for 10,000 Years: Learning from Ancient WUI Practices in New Mexico

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Conceptual map of landscape zones and 27 fire and wood uses for Hemish people.

At a webinar I attended yesterday, one of the speakers worked for Indian Country Today.   He spoke a bit about climate and pointed out that Native people have been adapting to changing climate for 10,000 years. Recently in the scientific literature, we’ve heard much more about traditional burning practices, and what we can learn from Native American practices. Perhaps the selection of Deb Haaland as Interior Secretary could accelerate this trend, especially with scientific research as USGS is in Interior.

Thanks to Rebecca Watson  for the link to this interesting (open-source, yay!) study  by Roos et al.

Policy Implications.

The Jemez ancient WUI obviously contrasts with modern WUI in the American West in ways that make the ancient WUI an imperfect analog for modern conditions. The economic, technological, and political differences are irreconcilable but they do not obviate the relevance of the ancient WUI for modern problems. The cultural contrasts between ancient and modern WUI highlight opportunities to cultivate more resilient communities by supporting particular cultural values. Two of the important characteristics of the Jemez ancient WUI are: 1) That it was a working landscape, in which properties of the fire regime were shaped by wood, land, and fire use that supported the livelihoods of the residents; and 2) that there was much greater acceptance of the positive benefits of fire and smoke. We emphasize that these are malleable cultural features, because reshaping western United States culture by learning from indigenous cultural values may be critical for building adaptive and transformative resilience in modern communities (26, 28, 85, 86). Learning to value the positive benefits of fire and smoke and to tolerate their presence will undoubtedly be critical to WUI fire adaptations. Furthermore, the ancient WUI highlights two key processes that may make modern WUI more resistant to extreme fires: 1) Intensive wood collecting and thinning, particularly in close proximity to settlements; and 2) using many small, patchy fires annually (approximately 100 ha) rather than using larger burn patches (thousands of hectares) to restore fire and reduce fuel hazards, particularly closer to settlements. Many WUI communities—especially rural and Indigenous communities—rely on domestic biomass burning for heat during the winter. Public/private–tribal partnerships to thin small diameter trees and collect downed and dead fuel for domestic use could have dual benefits for the community by meeting energy needs and reducing fuel loads. Tribal communities that have deep histories in a particular forested landscape may be ideal partners for supervising such a program (87). Lessons from the Jemez ancient WUI also suggest that federal and state programs to support prescribed burning by Native American tribes, WUI municipalities, and private land owners would provide equal benefit to modern communities (88). It is imperative that we understand the properties and dynamics of past human–natural systems that offer lessons for contemporary communities (89⇓–91). The Jemez ancient WUI is one of many such settings (72, 92⇓⇓⇓⇓–97) where centuries of sustainable human–fire interaction offer tangible lessons for adapting to wildfire for contemporary communities.

 

PERC’s Report on Tribal Co-Management for Bears Ears

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In 2017, I posted this about former Interior Secretary Zinke asking for a legislative fix so Tribes could co-manage parts of Bears Ears. It should also appeal to the Biden Administration. I ran across this report on different approaches to Tribal co-management by PERC. When I read it, I wondered, “could this approach apply more broadly- to more federal lands (possibly everywhere, after some pilot approaches are tested?).

Opportunities

The original presidential proclamation creating the Bears Ears National Monument did not establish a formal tribal co-management requirement. There are several ways Congress and the Interior Department could now implement formal co-management. Two potential solutions, elements of which can be combined, are:

1) Create a trust to manage cultural and natural resources.
Such a trust would be a legal arrangement in which a board of trustees would manage the natural and cultural resources of Bears Ears while maintaining federal land ownership. The Interior Department and Congress would establish and enforce policies and regulations by which the trust is administered to ensure standards of performance. A formal written agreement would specify parameters for resource protection and use, such as the trust’s ability to limit visitation to fragile cultural and archaeological sites. The trust would then determine precisely how to meet these parameters.

The trust board could be composed of Native Americans and representatives of nearby communities to ensure tribal co-management and local input. To protect cultural areas and provide recreational opportunities, the trust could be structured so that some trustees have primary responsibility for tribal co-management of cultural resources while other trustees have primary responsibility for recreation or conservation.

A trust for Bears Ears could have a number of provisions, including:

*Give trustees autonomy to make decisions about how to manage and use resources while holding them accountable to meet federally determined goals for the trust, such as the types of resources to be protected and the need for financial self-sufficiency.
*Allow the trust to set, charge, and retain 100 percent of fees for access and resource use and to invest those fees as it sees it in conserving the monument.
*Require the trust to become financially self-sufficient after a predetermined period of time, perhaps 3 to 5 years, so the trust does not become dependent on Congress for funding and is able to make trade-offs between competing resource uses. Sources of finances can be a combination of fees generated by visitors, resource users, and charitable contributions.

2) Grant Native Americans legally binding or even exclusive rights to manage the region’s antiquities on federal land.

Currently, four national park units, including two national monuments, are jointly managed by the federal government and tribal partners and could serve as models.

Substantive Native American co-management could include a number of provisions such as:

*Allow Native Americans to control access and retain 100 percent of income generated from visitors. This would ensure antiquities sites are not overrun by tourists and would also provide resources to help protect sites from vandalism, theft, and inadvertent damage.
*Create a formal management structure for Native Americans, such as a trust, so that they have a substantive management role rather than the current advisory role.
* Formalize rights to historical Native American uses of the area, including grazing livestock, gathering wood for heating homes, gathering food and hunting game, harvesting plants for medicinal and ceremonial purposes, and performing religious ceremonies.
* Establish a fair and transparent process to sort out competing Native American claims to co-manage antiquities sites on federal land.

It’s National Forest Week – so let’s think about forest planning for tribal areas

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But we all knew that, right?  Here’s the National Forest Foundation link.

But here’s the rest of the story:

It’s National Forest Week, and members of the Crow Tribe are celebrating recognition of a special place in Montana.

In the U.S. Forest Service’s final draft of its Custer Gallatin National Forest plan released last week, the agency recognized the cultural and spiritual significance of the Crazy Mountains, designating it an “Area of Tribal Interest.”

The Custer Gallatin plan recognizes only the southern part of the Crazies. The Forest Service did not include the cultural significance of the northern part in its Helena-Lewis and Clark National Forest plan from May.

Ideally, Doyle (a Crow tribal member) said, the tribe would like to see both sections recognized, but he noted that the region in the Custer Gallatin National Forest is most significant.

Why?  If there was one thing that everyone involved in developing planning regulations agreed on, it was that management direction should not change just because of an administrative boundary with a different staff member in charge.  And now this.  Two adjacent forest plan revisions, on roughly the same schedule, and different ideas about what?  Maybe there’s some legitimate resource reasons, but here’s the extent of the plan components for this area (and they don’t require much):

Desired Conditions (BC-DC-TRIBAL)

01 The Crazy Mountains embody a tribal cultural landscape significant to ongoing traditional cultural practices of the Crow Tribe.

02 Research, education, and interpretation of the Crazy Mountain tribal cultural landscape provides public benefits and enhances the understanding and appreciation of Crazy Mountain’s natural environment, precontact, contact, and Crow traditional cultural values.

Goals (BC-GO-TRIBAL)

01 The Custer Gallatin National Forest protects and honors Crow treaty obligations, sacred land and traditional use in the Crazy Mountains through continued consultation with the Crow Tribe.

This is not the only “area of tribal interest” on the Custer-Gallatin.  The Helena-Lewis and Clark plan has plan components for “areas of tribal importance,” but does not identify them (other than the Badger-Two Medicine area).  The plan dedicates one descriptive sentence to the tribal history in the Crazy Mountains.  So, again, how does the Forest Service explain the line they have drawn here?

(Related to the consistency idea, there was a lot of debate about whether plan decisions should be made by forest supervisors or regional foresters.  The Forest Service went with the former (I was told so the Chief wouldn’t be involved in objections), and this is the kind of problem they created.)