[Federal Register: October 7, 2005 (Volume 70, Number 194)]
[Rules and Regulations]
[Page 58881-58897]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07oc05-11]
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Part V
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 161
Navajo Partitioned Lands Grazing Permits; Final Rule
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 161
RIN 1076-AE46
Navajo Partitioned Lands Grazing Permits
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: The Department of the Interior (Department), Bureau of Indian
Affairs (BIA), is amending its regulations by adding a new part to
govern the grazing of livestock on the Navajo Partitioned Land (NPL) of
the Navajo-Hopi Former Joint Use Area (FJUA) of the 1882 Executive
Order reservation. The purpose of this regulation is to conserve the
rangelands of the NPL in order to maximize future use of the land for
grazing and other purposes, while recognizing the importance of
livestock in the Navajo way of life.
DATES: Effective January 5, 2006.
FOR FURTHER INFORMATION CONTACT: Archibald H. Wells, Acting Deputy
Bureau Director, Trust Services, Attn: Agriculture and Range, Mail Stop
4655-MIB, 1849 C Street, NW., Washington, DC 20240, Telephone 202-208-
6464.
SUPPLEMENTARY INFORMATION:
I. Background
II. Response to Comments
III. Part-by-Part Analysis
IV. Procedural Requirements
I. Background
This regulation is issued to implement the Secretary of the
Department of the Interior's (Secretary) responsibilities for the NPL
as mandated by the Navajo-Hopi Settlement Act of 1974, 25 U.S.C. 640d-
6402-31, as amended by the Navajo-Hopi Indian Relocation Amendments
Acts of 1980, 94 Stat. 929, and the Federal court decisions of Healing
v. Jones, 174 F. Supp. 211 (D. Ariz. 1959) (Healing I), Healing v.
Jones, 210 F. Supp. 126 (D. Ariz. 1962), aff'd 363 U.S. 758 (1963)
(Healing II), Hopi Tribe v. Watt, 530 F. Supp. 1217 (D. Ariz. 1982),
and Hopi Tribe v. Watt, 719 F.2d 314 (9th Cir. 1983).
This regulation also incorporates the requirements of the American
Indian Agricultural Resource Management Act (AIARMA) (107 Stat. 2011,
25 U.S.C. 3701 et seq.), as amended. The purposes of AIARMA include
carrying out the trust responsibility of the United States and
promoting self-determination of Indian tribes by providing for the
management of Indian agricultural lands and related renewable resources
in a manner consistent with identified tribal goals and priorities for
conservation, multiple use, and sustained yield; by authorizing the
Secretary to take part in the management of Indian agricultural lands
with the participation of the beneficial owners of the land in a manner
consistent with the trust responsibility of the Secretary and the
objectives of beneficial owners; and by providing for the development
and management of Indian agricultural land. The AIARMA requires that
the Secretary conduct all land management activities on Indian
agricultural lands in accordance with agricultural resource management
plans, integrated resources management plans, and all tribal laws and
ordinances, except where such compliance would be contrary to the trust
responsibility of the United States.
The proposed regulation was published in the Federal Register on
November 12, 2003 (68 FR 64023), with a 90-day public comment period
that ended on February 10, 2004. Before the proposed regulation was
published, BIA received approval to publish the draft regulation from
the Navajo Nation at a meeting held on June 26, 2003, in Window Rock,
Arizona.
On October 27, 2004, the Navajo Hopi Land Commission, by a 6-0
vote, passed a resolution recommending concurrence in the final
regulation. On February 10, 2005, the Navajo Nation Resources
Committee, by a 7-0 vote, recommended concurrence, and referred the
final regulation to the Navajo Nation Intergovernmental Relations
Committee for final concurrence. On April 8, 2005, the Navajo Nation
Intergovernmental Relations Committee, by an 8-0 vote, passed a
resolution concurring in and approving the final regulation.
This regulation will become effective 90 days after date of
publication in the Federal Register.
II. Response to Comments
The Department solicited comments from all interested parties
through its publication of the Proposed Rule in the Federal Register on
November 12, 2003 (68 FR 64023). During the comment period, BIA
employees and representatives from the Navajo Nation Resources
Committee, the Navajo-Hopi Land Commission Office, the Navajo Nation
Department of Agriculture, and the NPL District Grazing Committee
members held public meetings in Tonalea, Arizona, on December 10, 2003,
and in Pinon, Arizona, on December 11, 2003. These meetings were well
attended, and many NPL residents testified in both the English and
Navajo languages. A certified Navajo interpreter was present at the
meetings to translate comments for the court reporter so that all
testimony was recorded.
The Department received a total of 63 comments, representing 53
individuals, on all parts of the proposed rule. The comments were
carefully reviewed by the regulation drafting team made up of BIA
employees from Washington, DC, and the Navajo Regional Office,
attorneys from the Solicitor's Office, and representatives from the
Navajo Nation, and depending upon their merit, the Department accepted,
accepted with revision, or rejected comments made on each part of the
rule. As noted in the part-by-part analysis below, certain sections of
the regulation have been clarified in direct response to comments.
Additionally, some language has been deleted and/or added to provide
for increased clarity and precision. Substantive comments are
summarized below.
III. Part-by-Part Analysis
25 CFR Part 16--Navajo Partitioned Lands Grazing Permits
The purpose of this regulation is to conserve the rangelands of the
NPL in order to maximize future use of the land for grazing and other
purposes, while recognizing the importance of livestock in the Navajo
way of life. This regulation is an addition to the regulations of the
Bureau of Indian Affairs governing the grazing of livestock on the NPL
of the Navajo-Hopi FJUA of the 1882 Executive Order reservation.
The various subparts of part 161 address the purpose and scope of
the NPL grazing permits; the definition of terms; the application of
tribal policies and laws pertaining to permits; environmental
compliance and management documents required by AIARMA; the process by
which carrying capacity and stocking rates are established; permit
requirements; eligibility and priority criteria for reissuance of
cancelled permits; permit transfer, assignment and modification;
procedures for the investigation, notification and processing of permit
violations; procedures for trespass notification, enforcement, actions
and penalties, damages and costs; and procedures by which the Navajo
Nation provides concurrence to BIA under this part.
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General Observations in Response to Comments
Several commenters expressed general support for the regulation's
purpose of land restoration and resource management. However, numerous
concerns and questions were raised by commenters. Some commenters found
that the regulation did not clearly identify whether BIA or the Navajo
Nation will oversee particular activities, or expressed concern about
the difficult nature of enforcing the regulation. One commenter felt
that the regulation is too ``authoritarian rather than flexible.''
We believe the regulation provides the significant flexibility in
implementation as required by statute. Section 640d-9(e)(1)(A) of the
Settlement Act requires that all conservation practices, including
grazing control and range restoration activities be coordinated and
executed with the concurrence of the Navajo Nation. Thus, conservation
practices will be cooperatively developed and implemented by both BIA
and the Navajo Nation. Further, this regulation provides the Navajo
Nation with the opportunity to take the lead role in any part of this
regulation, either by enforcing tribal laws as provided in subpart B,
or through the contracting process pursuant to Public Law 93-638. The
regulation therefore allows for a range of approaches in
implementation. However, pursuant to AIARMA which authorizes the
Secretary to carry out the trust responsibility of the United States in
managing Indian agricultural lands, the Secretary retains the final
authority for actions taken under this part.
Subpart A--Definitions, Authority, Purpose and Scope
Summary of Subpart
Subpart A contains key terms used throughout the regulation. The
terms are consistent with those found in AIARMA. This subpart also
describes the Secretary s authorities under part 161.
Comments
Numerous commenters expressed concern that the regulation does not
address the importance of livestock in the Navajo culture. Another
commenter was concerned that the regulation rehabilitates the
environment but not human lives. We recognize the crucial role of
livestock, and have revised the Summary and section 161.3 of the
regulation to note the importance of livestock in the Navajo way of
life, tradition and culture. The BIA and Navajo Nation were mindful of
the impact that this regulation would have on the NPL residents. The
regulation is intended to facilitate recovery of the NPL rangeland
which in turn will result in improved conditions for NPL residents.
A number of commenters stated that additional funding is necessary
in order for the regulation to achieve its goals. Two commenters
inquired as to whether funding was included as part of BIA's assistance
in Navajo law enforcement. While we have not made any change to the
regulation because funding is an issue that is determined by Congress,
the Navajo Nation stated that it would address its concerns about
funding for implementation of the regulation to the Department in a
forthcoming tribal resolution.
Another commenter felt that individuals should be compensated to
the extent that their rights are lost due to the regulation. This
regulation does not intentionally contemplate the loss of any
individual rights. However, if an individual feels that his or her
rights have been violated by a decision made by BIA, the decision may
be appealed pursuant to 25 CFR part 2. Decisions made by the Navajo
Nation under this part may be appealed to the appropriate hearing body
of the Navajo Nation. Section 161.801 addresses appeals made under this
part. No change was made to the regulation.
Several commenters requested clarification of terms used in the
regulation. In response to these requests, section 161.1 has been
revised to further define the term ``improvements,'' by including
examples such as windmills, water troughs, fences, and cattleguards.
Also a definition of ``other affected land users'' was added to section
161.4.
Several commenters also indicated that the District Grazing
Committee should be given greater priority in decision making. The term
``Navajo Nation'' as used in this regulation includes the District
Grazing Committee and such authority provided to it by the Navajo
Nation. No change was made to the regulation.
One commenter questioned how the regulation would classify Shetland
ponies, and one felt that the llama should not count as an animal unit.
Shetland ponies will be classified as horses, and llamas kept as
livestock will require a permit because such animals consume forage and
are used to guard sheep. No change was made to the regulation.
One commenter felt that NPL District Rangers should play a larger
role in carrying out the regulation. The role of NPL District Rangers
will be determined by the Navajo Nation and BIA at the implementation
stage of this regulation. No change was made to the regulation.
Another commenter stated that the Secretary should be responsible
for assisting the Navajo people in improving their farming methods
under section 161.1. Pursuant to AIARMA, the Secretary is authorized to
increase educational and training opportunities in all aspects of
agricultural and land management. Education and assistance can be
addressed on a continuing basis by BIA and the Navajo Nation following
finalization of this regulation. No change was made to the regulation.
One commenter was concerned that there will be two different
permits used on the Navajo Reservation; i.e., 25 CFR parts 167 and 161.
Another commenter expressed concern that this regulation and part 167
create different standards for permit eligibility. One commenter was
concerned that the regulation would force people to choose between
either grazing on non-NPL Navajo lands or the NPL. In response, part
167 governs grazing on the majority of the Navajo Reservation. However,
because grazing management on the NPL must comply with the requirements
of the Settlement Act, a separate permitting system must be used on the
NPL. Pursuant to section 161.4, contiguous areas outside of the NPL may
be included under this part which may eliminate any confusion caused by
two different permitting systems on contiguous parcels. The Navajo
Nation will have discretion to determine whether an individual may hold
permits under both parts 161 and 167. No change was made to the
regulation.
Subpart B--Tribal Policies and Laws Pertaining to Permits
Summary of Subpart
This subpart is consistent with AIARMA, and makes clear that Navajo
Nation laws generally apply to land under the jurisdiction of the
Navajo Nation, except to the extent that those Navajo Nation laws are
inconsistent with applicable Federal law. Further, unless prohibited by
Federal law, BIA will recognize and comply with tribal laws regulating
activities on the NPL, including tribal laws relating to land use,
environmental protection, and historic or cultural preservation.
Comments
Two commenters expressed concern about conflicts between Federal
law and those of the Navajo Nation. Sections 161.100 and 161.101, in
compliance with section 3712(b) of AIARMA, address this concern by
providing that Navajo Nation law applies so long as it
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does not conflict with Federal law, and that the Navajo Nation is
primarily responsible for enforcing tribal laws on the NPL. One
commenter felt that the enforcement role of the Navajo Nation Resources
Committee and the Navajo Nation Courts is ignored under section
161.101. However, section 161.101 provides discretion for the Navajo
Nation to determine the roles of the Navajo Nation Resources Committee
and Courts. No change was made to the regulation.
Subpart C--General Provisions
Summary of Subpart
This subpart lists the environmental compliance and management
documents that are required by AIARMA. This subpart also discusses how
carrying capacity and stocking rates are established.
Comments
Numerous commenters expressed concern that this regulation will
result in the loss of livestock. One commenter felt that stocking rate
adjustments should be prorated and not be made equally under section
161.204. In response, the regulation provides that livestock numbers
may be reduced when stocking rates are established in order to
facilitate range recovery. While the extent of such permit reductions
will not be known until BIA and the Navajo Nation review the current
carrying capacity of each range unit pursuant to section 161.204, both
BIA and the President's Office of the Navajo Nation will explore all
possible alternatives to the loss of livestock. No change was made to
the regulation.
Several commenters indicated that the permit process should include
more environmental studies. Sections 161.200 and 161.201, in compliance
with AIARMA section 3711(b), address this concern by requiring that an
agricultural resource management plan be prepared, and that actions
taken by BIA under this regulation must comply with the National
Environmental Policy Act, 42 U.S.C. 431 et seq., applicable regulations
of the Council on Environmental Quality, 40 CFR part 1500, and
applicable tribal laws and provisions of the Navajo Nation
Environmental Policy Act CAP-47-95, where the tribal laws and
provisions do not violate a Federal or judicial decision or conflict
with the Secretary's trust responsibility under Federal law. No change
was made to the regulation.
One commenter questioned when specific environmental standards
would be announced. The standards for environmental compliance are set
forth in the statutes and regulations listed above. Compliance with
these standards and regulations is an ongoing responsibility of the BIA
and Navajo Nation. No change was made to the regulation.
Some commenters were concerned that the regulation did not address
the manner in which current NPL livestock will be treated if stocking
rates are reduced. We believe this comment refers to the removal of
livestock that exceed permit stocking rates. This issue will be
addressed at the implementation stage following finalization of the
regulation. Sufficient time and accommodations will be made available
to implement changes for individuals affected by this regulation. No
change was made to the regulation.
One commenter expressed concern that livestock kept and grazed
elsewhere would count towards NPL livestock limitations under section
161.204. Livestock grazed elsewhere on the Navajo Reservation will have
no effect on the number of NPL grazing permits that are issued or on
the stocking rates for each permit. No change was made to the
regulation.
One commenter felt that private agreements should be honored when
range unit boundaries are set, and another was concerned that range
units would be established based on the already standing fences.
Section 161.202 provides flexibility in determining range unit
boundaries, and allows for agreements to be reached based on historical
use. Fences may also be taken into account when establishing range unit
boundaries. No change was made to the regulation.
One commenter felt that more than two horses should be allowed on a
grazing unit. In response, the BIA and the Navajo Nation have
determined that because cattle, sheep and goat herd sizes are
relatively small, two horses are sufficient for the management of these
herds. No change was made to the regulation.
One commenter felt that the regulation should discuss deferred
compensation. Determinations about compensation will be made in
accordance with Federal and tribal law. No change in the regulation was
made.
Subpart D--Grazing Permit Requirements
Summary of Subpart
This subpart describes the general requirements for obtaining a
permit, the provisions contained in a grazing permit, the restrictions
placed on permits, and other permit requirements.
Comments
Several commenters raised questions regarding permit costs. The
regulation does not require that rentals or fees be paid for permits
because the Navajo Nation requested that the regulation not include
grazing fee provisions. Several commenters were concerned about the
period of permit validity and permit renewals. Under section 161.303
permits are valid for one year, and will be automatically renewed so
long as the permittee remains in good standing. No change was made to
the regulation.
Two commenters also indicated that the manner in which permits will
be issued is unclear. We believe this question refers to the process of
applying for and receiving permits. The specific steps that must be
taken by a potential permittee when applying for a permit are not
outlined in this regulation. However, BIA and Navajo Nation personnel
will be available to answer questions about the permitting process
after finalization of this regulation.
Several commenters were concerned that the language of section
161.301(a)(14) would result in permittees being held responsible for
the cleanup of hazardous waste spills, or that hazardous dumping would
be authorized. Due to the continuing confusion created by this
language, section 161.301(a)(14) was deleted from the regulation.
Section 161.301(a)(15) was redesignated as section 161.301(a)(14).
Nonetheless, liability standards for hazardous waste are governed by
applicable statutes and regulations, and the elimination of this
language from this regulation does not alter such standards.
One commenter was concerned about the ability of a family to share
a permit. Section 161.302(b) requires that a permit be issued in the
name of one individual only, and section 161.302(f) requires that a
permit cannot be subdivided once it has been issued. This requirement
was developed to ensure that permit ownership and accountability may be
efficiently tracked. It does not preclude a family from sharing in
permit responsibilities, or for a permit holder from assigning his or
her permit to a family member under section 161.500.
Subpart E--Reissuance of Grazing Permits
Summary of Subpart
This subpart sets forth eligibility and priority criteria for
reissuance of cancelled grazing permits. This subpart makes clear that
the Navajo Nation may prescribe eligibility requirements for
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grazing allocations within 180 days following the effective date of
these regulations. The BIA will prescribe the eligibility requirements
after expiration of the 180-day period in the event that the Navajo
Nation does not prescribe eligibility requirements, or in the event
that the Navajo Nation does not take satisfactory action. This subpart
also describes how new permits may be granted after the initial
reissuance of permits, and sets forth the procedures for reissuing
permits and allocating permits within each range unit.
Comments
Many commenters indicated that grazing permits of the deceased
should pass to their descendants. While permits may not automatically
pass to descendants under this regulation, the Navajo Nation has
discretion under section 161.401 to determine who may be granted the
permit of a deceased permit holder in accordance with Navajo Nation
law. No change was made to the regulation.
Several commenters expressed concern that the regulation and
specifically section 161.400 give priority to those over the age of 65.
One commenter indicated that all enrolled Navajo Nation members over 18
should be eligible to receive permits. In response, priority under
section 161.400(c)(1) was given to those aged 65 and older because
persons of that age are more likely to have had their permits cancelled
by the 1972 United States District Court order in Hamilton v.
MacDonald, Civ. 579-PCT (1972), and are more likely to be dependent on
livestock for subsistence. No change was made to the regulation.
Commenters were also concerned that those not fluent in the English
language, especially the elderly, will be disadvantaged in exercising
their rights under the regulation. The BIA and the Navajo Nation are
committed to making the materials and processes of this regulation
available in both the English and Navajo languages. No change was made
to the regulation.
Commenters were also concerned that decisions regarding permit
reissuance have already been made. Decisions regarding permit
reissuance have not been made by either BIA or the Navajo Nation, and
any previous discussions of permit reissuance were speculative and non-
binding.
One commenter felt that those who previously grazed on Navajo and
Hopi land should receive permits under section 161.400. Another
commenter stated that priority for permit reissuance should go to those
starting a business, and one commenter indicated that first priority
for reissuing permits should go to those not paid for relocation. One
commenter expressed concern that residents of Black Mesa, Arizona,
would be left out of permit reissuance. One commenter questioned
whether non-Navajos are qualified to receive permits, and another
expressed concern that those outside the Joint Use Area will not be
qualified to receive permits. No changes were made to the regulation in
response to these comments because the Navajo Nation has the discretion
to determine permit eligibility for these and other situations under
sections 161.400 and 161.401. If the Navajo Nation does not prescribe
eligibility criteria for permit reissuance, the criteria presented in
section 161.400 will be implemented. The criteria presented in section
161.400 were developed by BIA and the Navajo Nation and are intended to
restore permits to those permittees who had their permits cancelled by
court order in Hamilton v. MacDonald, Civ. 579-PCT (1972). Under
section 161.400, only current residents of the NPL may receive permits.
This criterion was developed to ensure that current NPL residents
receive permits before non-NPL residents receive them. Section 161.401
provides complete discretion to the Navajo Nation to grant permits
based on its own criteria following reissuance of permits under section
161.400. No change was made to the regulation.
Another commenter felt that 180 days is insufficient time for the
Navajo Nation to establish permit eligibility requirements. The Navajo
Nation may receive an extension to determine eligibility criteria under
section 161.400 upon request and a showing that progress is being made.
No change was made to the regulation.
Subpart F--Modifying A Permit
Summary of Subpart
This subpart describes how permits may be transferred, assigned or
modified.
Comments
One commenter expressed concern about the impact that outside
businesses would have on grazing permits under section 161.502 if
businesses were allowed to occupy grazing lands and remove those lands
from a range unit. Another commenter felt that in the event that a
special land use results in permit modification, the permittee should
be compensated. In response, section 161.502 provides discretion to BIA
and the Navajo Nations to determine whether a special land use may
occupy grazing land, but does not require that special land uses be
approved. Determination about special land uses will be made on a case-
by-case basis by BIA and the Navajo Nation. Determinations about
compensation will be made in accordance with Federal and tribal law. No
change was made to the regulation.
Subpart G--Permit Violations
Summary of Subpart
This subpart sets forth the procedures for investigation,
notification and processing of permit violations. This subpart also
describes the process by which mediation can be used in the event of a
permit violation.
Comments
One commenter expressed concern that the responsibilities for
monitoring permit compliance under section 161.601 were unclear. In
response to this concern, section 161.601 has been slightly modified to
add ``and/or Navajo Nation'' to provide additional enforcement
capabilities.
One commenter suggested that section 161.603 be deleted. This
section was developed by BIA and the Navajo Nation to provide an
alternative means of resolving permit violations or disputes prior to
permit cancellation. No change was made to the regulation.
Subpart H--Trespass
Summary of Subpart
This subpart describes the process for trespass notification,
enforcement, actions and penalties, damages and costs. This subpart is
substantially similar to the general grazing regulations, 25 CFR part
166, subpart I, and is consistent with AIARMA.
Comments
Numerous commenters were concerned that the trespass provisions and
penalties are too harsh and insufficiently defined. However, section
3713 of AIARMA requires the Secretary to establish civil penalties for
the commission of trespass on Indian agricultural lands, and specifies
what those penalties must be. The trespass provisions contained in this
subpart are substantially similar to the trespass provisions contained
in the general grazing regulations in 25 CFR part 166, and incorporate
the requirements of AIARMA. In accordance with section 161.101, BIA has
agreed that it will use the Navajo Nation Trespass Code when resolving
trespass issues on the NPL. However, if a trespass issue remains
unresolved under the Navajo Nation Trespass Code, the provisions of
this
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subpart will be applied. No change was made to the regulation.
Several commenters were concerned that a trespass may result in
loss of NPL occupancy under section 161.715. This is a concern to some
NPL residents because the issue of authorized occupancy on the NPL is
somewhat unclear in some cases due the particular history of the area.
In response, we slightly modified section 161.715(a) to eliminate loss
of occupancy as a consequence of failure to pay penalties, damages or
costs.
Subpart I--Concurrence/Appeals/Amendments
Summary of Subpart
This subpart sets forth the procedures for the Navajo Nation to
provide concurrence to BIA under this part. This subpart also states
that decisions made by BIA under this part may be appealed, and that
decisions made by the Navajo Nation under this part may be appealed to
the appropriate hearing body of the Navajo Nation.
Comments
Some commenters were concerned with the possibility that BIA may
implement proposals without the Navajo Nation's concurrence under
section 161.800(b)(5). In response, section 161.800 provides a detailed
procedure by which the Navajo Nation provides concurrence to BIA
conservation practices, including grazing control and range restoration
activities as required by section 640d-9(e)(1)(A) of the Settlement
Act. If however, this process does not result in Navajo Nation
concurrence, BIA is authorized to act by AIARMA, which authorizes the
Secretary to carry out the trust responsibility of the United States in
managing Indian agricultural lands. Every attempt will be made to
resolve issues of concern prior to the implementation of section
161.800(b)(5). No change was made to the regulation.
One commenter indicated that the citation in section 161.800(a)
should be ``Hopi v. Watt'' rather than the ``Settlement Act.'' We
slightly modified the regulation to include the specific citation for
the Settlement Act for clarity.
Another commenter felt that the Navajo-Hopi Land Commission is best
suited for recommending amendments under section 161.802. This section
requires the Resources Committee to incorporate the recommendation of
the Navajo-Hopi Land Commission in approving amendments to this part.
No change was made to the regulation.
IV. Procedural Requirements
A. Review Under Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Office of Management and Budget (OMB) must determine whether the
regulatory action is ``significant'' and therefore subject to OMB
review and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles in the
Executive Order.
The rule describes how BIA will administer grazing permits on trust
land. Thus, the impact of the rule is confined to the Federal
Government and individual Indian and the Navajo Nation, and does not
impose a compliance burden on the economy generally. Accordingly, it
has been determined that this rule is not a ``significant regulatory
action'' under any of the preceding criteria.
B. Review Under the Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as
amended, whenever an agency is required to publish a notice of rule
making for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities. Indian tribes are
not considered to be small entities for purposes of the Regulatory
Flexibility Act, and consequently, no regulatory flexibility analysis
has been done.
This rule does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises
because it concerns only the Navajo Nation. Accordingly, this
regulation will not have an economic impact on a substantial number of
small entities, and, therefore, no regulatory flexibility analysis has
been prepared.
C. Review Under the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996
Under 5 U.S.C. 804(2), SBREFA, a rule is major if OMB finds that it
results in:
a. An annual effect on the economy of $100 million or more;
b. A major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; or
c. Significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
This rule is not a major rule as defined by section 804 of the
SBREFA. This rule is uniquely confined to the Federal Government,
individual Indians and the Navajo Nation, thus, it will not result in
the expenditure by State, local and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year. This rule provides regulatory guidance for grazing permits on
trust lands owned by individual Indians and the Navajo Nation.
D. Review Under the Unfunded Mandates Reform Act
This rule would not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995,
109 Stat. 48). This rule will not result in the expenditure by State,
local and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year (2 U.S.C. 1532). The
impact of this rule is confined to grazing permits on land held in
trust for the Navajo Nation. Accordingly, this proposed rule will not
result in the expenditure of $100 million or more in any one year.
E. Review Under Executive Order 12630
This rule does not have significant ``takings'' implications.
Policies that have taking implications do not include actions affecting
properties that are held in trust by the United States. The NPL grazing
regulations provide specific regulatory guidance on trust lands.
F. Review Under Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211 that
speaks to regulations that significantly affect energy supply,
distribution, and use. The Executive Order requires agencies to prepare
Statements of Energy Effects when undertaking certain actions. This
[[Page 58887]]
rule is restricted to 25 CFR 161, NPL Grazing Permits on lands held in
trust for individual Indians and tribes. Mineral development on lands
held in trust for individual Indians and the Navajo Nation are
regulated under the Indian Mineral Development Act. Regulations for
mineral development are provided under a separate part in 25 CFR 211,
212 and 225. This proposed implementation guidance is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
no Statement of Energy Effects has been prepared.
G. Review Under Executive Order 12612
This rule does not have significant Federalism effects because it
pertains solely to Federal-tribal relations and will not interfere with
the roles, rights, and responsibilities of States. While this proposed
rule will impact tribal governments, there is no federalism impact on
the trust relationship or balance of power between the United States
government and the various tribal governments affected by this
rulemaking. Therefore, in accordance with Executive Order 13132, it is
determined that this rule will not have sufficient federalism
implications to warrant the preparation of a federalism assessment.
H. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of the Executive Order
12988, Civil Justice Reform, 61 FR 4729, February 7, 1996, imposes on
executive agencies the general duty to adhere to the following
requirements:
(1) Eliminate drafting errors and ambiguity;
(2) Write regulations to minimize litigation; and
(3) Provide a clear legal standard for effective conduct rather
than a general standard and promote simplification and burden
reduction.
With regard to the review required by section 3(a), section (b) of
Executive Order 12988 specifically requires that executive agencies
make every reasonable effort to insure that the regulations:
(1) Clearly specifies the preemptive effect, if any;
(2) Clearly specifies any effect on existing federal law or
regulation;
(3) Provides a clear legal standard for affecting conduct while
promoting simplification and burden reduction;
(4) Specifies the retroactive affect if any;
(5) Adequately defines key terms; and
(6) Addresses other important issues affecting clarity and general
draftsmanship.
Section 3(c) of Executive Order 12988 requires executive agencies
to review regulations in light of the applicable standards in section
3(a) and section 3(b) to determine whether they are met or it is
unreasonable to meet on one or more of them. This rule does not unduly
burden the judicial system and meets the applicable standards provided
in sections 3(a) and 3(b)(2) of the Executive Order 12988.
I. Review Under the National Environmental Policy Act (NEPA)
This rule is categorically excluded from the preparation of an
environmental assessment or an environmental impact statement under the
NEPA of 1969, 42 U.S.C. 4321, et seq., because its environmental
effects are too broad, speculative, or conjectural to lend themselves
to meaningful analysis and the Federal actions under this rule will be
subject at the time of the action itself to the NEPA process, either
collectively or case-by-case. Further, no extraordinary circumstances
exist to require preparation of an environmental assessment or
environmental impact statement.
J. Review Under Executive Order 13175
Pursuant to Executive Order 13175 of November 6, 2000, Consultation
and Coordination with Indian Tribal Governments, the Department has
determined that because this rule will uniquely affect tribal
governments, it will follow Department and Administrative protocols in
consulting with tribal governments on rulemaking. Consequently, tribal
governments were notified through the proposed rulemaking published in
the Federal Register and through BIA field offices, of the
ramifications of this rule. This enabled tribal officials and the
affected tribal constituency throughout the NPL to have meaningful and
timely input in the development of this rule. This will reinforce good
intergovernmental relations with the Navajo Nation and better inform,
educate and advise the Navajo Nation on compliance requirements of this
rule. We consulted with representatives of the Navajo Nation during the
formulation of this rule. Representatives from the Navajo-Hopi Land
Commission and Navajo Nation Natural Resources Committee met in
consultation several times from November 2002 to June of 2003 to draft
the proposed regulations. The comments received from these
consultations were taken into consideration in the formulation of this
rule. We also consulted with the Navajo Nation in the formulation of
this rule.
K. Review Under the Paperwork Reduction Act
This rule requires an information collection from 10 or more
parties, and therefore was subject to review under the Paperwork
Reduction Act of 1995 (Pub. L. 104-13). The information collection
regulates grazing permits and the use of the Navajo Partitioned Lands.
The information collection will also help protect the lands from
overgrazing and aid in restoring lands that have been overgrazed. The
information collection involves 5,370 responses with an hourly annual
burden of 1227 hours for an average burden of approximately 14 minutes.
The respondents are not required to keep records but many do as part of
their business. Responses are given in order to obtain or retain a
benefit, namely, acquiring or keeping a grazing permit as authorized by
the Navajo-Hopi Settlement Act of 1974 as amended, by federal court
decisions (Healing v. Jones, 174 F. Supp. 211 (D. Ariz. 1959) (Healing
I), Healing v. Jones, 210 F. Supp. 126 (D. Ariz. 1962), and Hopi Tribe
v. Watt, 530 F. Supp. 1217 (D. Ariz. 1982), and Hopi Tribe v. Watt, 719
F. 2d 314 (9th Cir. 1983), and the American Indian Agricultural
Resource Management Act (AIARMA), (107 Stat. 2011, 25 U.S.C. 3701 et
seq.) as amended. Interior submitted a request for approval of the
information request which was approved. The OMB Control Number is 1076-
0162 and expires January 31, 2007.
Comments on this information collection can be made at any time and
sent to the Information Collection Clearance Officer at 625 Herndon
Parkway, Herndon, VA 20170. Please note that comments about the burden
are separate from comments on the rule. If you wish to withhold
personal information, such as your name, you must state this
prominently at the beginning of your comments. We will honor your
request to the extent that the law allows.
The table showing the burden of the information collection is
included below for your information.
[[Page 58888]]
Table of Burden for 25 CFR 161
----------------------------------------------------------------------------------------------------------------
Hourly burden
CFR section Number of Number of annual per response Total annual
respondents responses (hours) hourly burden
----------------------------------------------------------------------------------------------------------------
161.102................................ 700 700 ................ .................
161.206................................ 700 700 \1/2\ 350
161.301................................ 700 700 ................ .................
161.302................................ 700 700 \1/3\ 233
161.304................................ 700 700 ................ .................
161.402................................ 700 700 \1/3\ 233
161.500................................ 70 70 \1/3\ 23
161.502................................ 70 70 ................ .................
161.604................................ 35 35 \1/2\ 17.5
161.606................................ 35 35 \1/2\ 17.5
161.703................................ 35 35 \1/2\ 17.5
161.704................................ 35 35 \1/2\ 17.5
161.708................................ 10 10 \1/2\ 5
161.717................................ 10 10 1 10
161.800................................ 700 700 \1/4\ 175
161.801................................ 85 85 \1/2\ 42.5
161.802................................ 85 85 1 85
-------------------
Totals............................. 700 5,370 ................ 1,226.5
----------------------------------------------------------------------------------------------------------------
Table of Burden for 25 CFR 161
----------------------------------------------------------------------------------------------------------------
Salary: $5.00 x Salary: $18.52 x
total hourly Federal burden Total Federal total hourly
CFR section burden = total per response annual burden burden = total
hourly burden (hours) hours Federal burden
cost cost
----------------------------------------------------------------------------------------------------------------
161.102................................ ................ \1/2\ 350 $6,482
161.206................................ $1,750 \1/4\ 175 3,241
161.301................................ ................ \1/4\ 175 3,241
161.302................................ 1,165 \1/4\ 175 3,241
161.304................................ ................ \1/4\ 175 3,241
161.402................................ 1,165 1 700 12,964
161.500................................ 115 1 70 1,296
161.502................................ ................ \1/4\ 17.5 324
161.604................................ 87 1 35 648
161.606................................ 87 1 35 648
161.703................................ 87 1 35 648
161.704................................ 88 1 35 648
161.708................................ 25 1 10 185
161.717................................ 50 2 20 370
161.800................................ 875 \1/4\ 212.5 3,936
161.801................................ 213 1 85 1,575
161.802................................ 425 \1/2\ 42.5 787
-------------------
Totals............................. 6,132 ................ 2,347.5 43,475
----------------------------------------------------------------------------------------------------------------
List of Subjects in 25 CFR Part 161
Grazing lands, Indians--lands, Livestock.
Dated: July 29, 2005.
Michael D. Olsen,
Acting Principal Deputy Assistant Secretary--Indian Affairs.
0
For the reasons stated in the preamble, the Department of the Interior,
Bureau of Indian Affairs, is adding part 161 to chapter I of title 25
of the Code of Federal Regulations as follows.
PART 161--NAVAJO PARTITIONED LANDS GRAZING PERMITS
Subpart A--Definitions, Authority, Purpose and Scope
Sec.
161.1 What definitions do I need to know?
161.2 What are the Secretary's authorities under this part?
161.3 What is the purpose of this part?
161.4 To what lands does this part apply?
161.5 Can BIA waive the application of this part?
161.6 Are there any other restrictions on information given to BIA?
Subpart B--Tribal Policies and Laws Pertaining to Permits
161.100 Do tribal laws apply to grazing permits?
161.101 How will tribal laws be enforced on the Navajo Partitioned
Lands?
161.102 What notifications are required that tribal laws apply to
grazing permits on the Navajo Partitioned Lands?
Subpart C--General Provisions
161.200 Is an Indian agricultural resource management plan required?
161.201 Is environmental compliance required?
161.202 How are range units established?
161.203 Are range management plans required?
161.204 How are carrying capacities and stocking rates established?
161.205 How are range improvements treated?
161.206 What must a permittee do to protect livestock from exposure
to disease?
[[Page 58889]]
161.207 What livestock are authorized to graze?
Subpart D--Permit Requirements
161.300 When is a permit needed to authorize grazing use?
161.301 What will a grazing permit contain?
161.302 What restrictions are placed on grazing permits?
161.303 How long is a permit valid?
161.304 Must a permit be recorded?
161.305 When is a decision by BIA regarding a permit effective?
161.306 When are permits effective?
161.307 When may a permittee commence grazing on Navajo Partitioned
Land?
161.308 Must a permittee comply with standards of conduct if granted
a permit?
Subpart E--Reissuance of Grazing Permits
161.400 What are the criteria for reissuing grazing permits?
161.401 Will new permits be granted after the initial reissuance of
permits?
161.402 What are the procedures for reissuing permits?
161.403 How are grazing permits allocated within each range unit?
Subpart F--Modifying A Permit
161.500 May permits be transferred, assigned or modified?
161.501 When will a permit modification be effective?
161.502 Will a special land use require permit modification?
Subpart G--Permit Violations
161.600 What permit violations are addressed by this subpart?
161.601 How will BIA monitor permit compliance?
161.602 Will my permit be canceled for non-use?
161.603 Can mediation be used in the event of a permit violation or
dispute?
161.604 What happens if a permit violation occurs?
161.605 What will a written notice of a permit violation contain?
161.606 What will BIA do if the permitee doesn't cure a violation on
time?
161.607 What appeal bond provisions apply to permit cancellation
decisions?
161.608 When will a permit cancellation be effective?
161.609 Can BIA take emergency action if the rangeland is
threatened?
161.610 What will BIA do if livestock is not removed when a permit
expires or is cancelled?
Subpart H--Trespass
161.700 What is trespass?
161.701 What is BIA's trespass policy?
161.702 Who will enforce this subpart?
Notification
161.703 How are trespassers notified of a trespass determination?
161.704 What can a permittee do if they receive a trespass notice?
161.705 How long will a written trespass notice remain in effect?
Actions
161.706 What actions does BIA take against trespassers?
161.707 When will BIA impound unauthorized livestock or other
property?
161.708 How are trespassers notified of impoundments?
161.709 What happens after unauthorized livestock or other property
are impounded?
161.710 How can impounded livestock or other property be redeemed?
161.711 How will BIA sell impounded livestock or other property?
Penalties, Damages, and Costs
161.712 What are the penalties, damages, and costs payable by
trespassers?
161.713 How will BIA determine the amount of damages to Navajo
Partitioned Lands?
161.714 How will BIA determine the costs associated with enforcement
of the trespass?
161.715 What will BIA do if a trespasser fails to pay penalties,
damages and costs?
161.716 How are the proceeds from trespass distributed?
161.717 What happens if BIA does not collect enough money to satisfy
the penalty?
Subpart I--Concurrence/Appeals/Amendments
161.800 How does the Navajo Nation provide concurrence to BIA?
161.801 May decisions under this part be appealed?
161.802 How will the Navajo Nation recommend amendments to this
part?
Authority: 25 U.S.C. 2; 5 U.S.C. 301; 25 U.S.C. 640d et seq.
Subpart A--Definitions, Authority, Purpose, and Scope
Sec. 161.1 What definitions do I need to know?
Agricultural Act means the American Indians Agricultural Resource
Management Act (AIARMA) of December 3, 1993 (107 Stat. 2011, 25 U.S.C.
3701 et seq.), and amended on November 2, 1994 (108 Stat. 4572).
Agricultural resource management plan means a 10-year plan
developed through the public review process specifying the tribal
management goals and objectives developed for tribal agricultural and
grazing resources. Plans developed and approved under AIARMA will
govern the management and administration of Indian agricultural
resources and Indian agricultural lands by BIA and Indian tribal
governments.
Allocation means the number of animal units authorized in each
grazing permit.
Animal Unit (AU) means one adult cow and her 6-month-old calf or
the equivalent thereof based on comparable forage consumption. Thus as
defined in the following:
(1) One adult sheep or goat is equivalent to one-fifth (0.20) of an
AU;
(2) One adult horse, mule, or burro is equivalent to one and one
quarter (1.25) AU; or
(3) One adult llama is equivalent to three-fifths (0.60) of an AU.
Appeal means a written request for review of an action or the
inaction of an official of the Bureau of Indian Affairs that is claimed
to adversely affect the interested party making the request.
Appeal Bond means a bond posted upon filing of an appeal that
provides a security or guaranty if an appeal creates a delay in
implementing our decision that could cause a significant and measurable
financial loss to another party.
BIA means the Bureau of Indian Affairs within the Department of the
Interior.
Bond means security for the performance of certain permit
obligations, as furnished by the permittee, or a guaranty of such
performance as furnished by a third-party surety.
Business day means Monday through Friday, excluding federally or
tribally recognized holidays.
Carrying capacity means the number of livestock and/or wildlife,
which may be sustained on a management unit compatible with management
objectives for the unit.
Concurrence means the written agreement of the Navajo Nation with a
policy, action, decision or finding submitted for consideration by BIA.
Conservation practice refers to any management measure taken to
maintain or improve the condition, productivity, sustainability, or
usability of targeted resources.
Customary Use Area refers to an area to which an individual
traditionally confined his or her traditional grazing use and occupancy
and/or an area traditionally inhabited by his or her ancestors.
Day means a calendar day, unless otherwise specified.
Enumeration means the list of persons living on and identified
improvements located within the Former Joint Use Area obtained through
interviews conducted by BIA in 1974 and 1975.
Former Joint Use Area means the area that was divided between the
Navajo Nation and the Hopi Tribe by the Judgment of Partition issued
April 18, 1979, by the United States District Court for the District of
Arizona. This area was established by the United States District Court
for the District of Arizona in Healing v. Jones, 210 F. Supp. 125
[[Page 58890]]
(1962), aff'd. 373 U.S. 758 (1963) and is located:
(1) Inside the Executive Order area (Executive Order of December
16, 1882); and
(2) Outside Land Management District 6.
Grazing Committee means the District Grazing Committee established
by the Navajo Nation Council, that is responsible for enforcing and
implementing tribal grazing regulations on the Navajo Partitioned
Lands.
Grazing Permit means a revocable privilege granted in writing and
limited to entering on and utilizing forage by domestic livestock on a
specified range unit. The term as used herein shall include
authorizations issued to enable the crossing or trailing of domestic
livestock within an assigned range unit.
Historical Land Use see Customary Use Area.
Improvement means any structure or excavation to facilitate
management of the range for livestock, such as: Fences, cattle guards,
spring developments, windmills, stock ponds, and corrals.
Livestock means horses, cattle, sheep, goats, mules, burros,
donkeys, and llamas.
Management Unit is a subdivision of a geographic area where unique
resource conditions, goals, concerns, or opportunities require specific
and separate management planning.
Navajo Nation means all offices/entities/programs under the direct
jurisdiction of the Navajo Nation Government.
Navajo Partitioned Lands (NPL) means that portion of the Former
Joint Use Area awarded to the Navajo Nation under the Judgment of
Partition issued April 18, 1979, by the United States District Court
for the District of Arizona, and now a separate administrative entity
within the Navajo Indian Reservation.
Non-Concurrence means the official written denial of approval by
the Navajo Nation of a policy, action, decision, or finding submitted
for consideration by BIA.
Range management plan is a statement of management objectives for
grazing, farming, or other agriculture management including contract
stipulations defining required uses, operations, and improvements.
Range Unit means a tract of land designated as a separate
management subdivision for the administration of grazing.
Resident means a person who lives on the Navajo Partitioned Lands.
Resources Committee means the oversight committee for the Division
of Natural Resources within the Navajo Nation Government. The Resources
Committee of the Navajo Nation Council to whom authority is delegated
to exercise the powers of the Navajo Nation with regards to the range
development and grazing management of the Navajo Partitioned Lands.
Secretary means the Secretary of the Interior or his or her
designated representative.
Settlement Act means the Navajo Hopi Settlement Act of December 22,
1974 (88 Stat. 1712, 25 U.S.C. 64d et seq., as amended).
Sheep Unit means an adult ewe with un-weaned lamb. It is also the
basic unit in which forage allocations are expressed.
Special land use means all land usage for purposes other than for
grazing withdrawn in accordance with Navajo Nation laws, Federal laws,
and BIA policies and procedures, such as but not limited to: Housing
permits, farm leases, governmental facilities, rights-of-way, schools,
parks, business leases, etc.
Stocking rate means the maximum number of sheep units, or animal
units authorized to graze on a particular pasture, management unit, or
range unit during a specified period of time.
Trespass means any unauthorized occupancy, grazing, use of, or
action on the Navajo Partitioned Lands.
Sec. 161.2 What are the Secretary's authorities under this part?
(a) Under Section 640d-9(e) of the Settlement Act, lands
partitioned under the Settlement Act are subject to the jurisdiction of
the tribe to whom partitioned. The laws of the tribe apply to the
partitioned lands as in paragraphs (a)(1) and (a)(2) of this section.
(1) Effective October 6, 1980:
(i) All conservation practices on the Navajo Partitioned Lands,
including control and range restoration activities, must be coordinated
and executed with the concurrence of the Navajo Nation; and
(ii) All grazing and range restoration matters on the Navajo
Reservation lands must be administered by BIA, under applicable laws
and regulations.
(2) Effective April 18, 1981, the Navajo Nation has jurisdiction
and authority over any lands partitioned to it and over all persons on
these lands. This jurisdiction and authority apply:
(i) To the same extent as is applicable to those other portions of
the Navajo reservation; and
(ii) Notwithstanding any provision of law to the contrary, except
where there is a conflict with the laws and regulations referred to in
paragraph (a) of this section.
(b) Under the Agricultural Act, the Secretary is authorized to:
(1) Carry out the trust responsibility of the United States and
promote Indian tribal self-determination by providing for management of
Indian agricultural lands and renewable resources consistent with
tribal goals and priorities for conservation, multiple use, and
sustained yield;
(2) Take part in managing Indian agricultural lands, with the
participation of the land's beneficial owners, in a manner consistent
with the Secretary's trust responsibility and with the objectives of
the beneficial owners;
(3) Provide for the development and management of Indian
agricultural lands; and
(4) Improve the expertise and technical abilities of Indian tribes
and their members by increasing the educational and training
opportunities available to Indian people and communities in the
practical, technical, and professional aspects of agricultural and land
management.
Sec. 161.3 What is the purpose of this part?
The purpose of this part is to describe the goals and objectives of
grazing management on the Navajo Partitioned Lands:
(a) To respect and recognize the importance that livestock and land
have in sustaining Navajo tradition and culture.
(b) Provide resources to rehabilitate range resources in the
preservation of forage, soil, and water on the Navajo Partitioned
Lands;
(c) Monitor the recovery of those resources where they have
deteriorated;
(d) Protect, conserve, utilize, and maintain the highest productive
potential on the Navajo Partitioned Lands through the application of
sound conservation practices and techniques. These practices and
techniques will be applied to planning, development, inventorying,
classification, and management of agricultural resources;
(e) Increase production and expand the diversity and availability
of agricultural products for subsistence, income, and employment of
Indians, through the development of agricultural resources on the
Navajo Partitioned Lands;
(f) Manage agricultural resources consistent with integrated
resource management plans in order to protect and maintain other values
such as wildlife, fisheries, cultural resources, recreation and to
regulate water runoff and minimize soil erosion;
(g) Enable the Navajo Nation to maximize the potential benefits
available to its members from their lands by providing technical
assistance, training, and education in conservation
[[Page 58891]]
practices, management and economics of agribusiness, sources and use of
credit and marketing of agricultural products, and other applicable
subject areas;
(h) Develop the Navajo Partitioned Lands to promote self-sustaining
communities; and
(i) Assist the Navajo Nation with permitting the Navajo Partitioned
Lands, consistent with prudent management and conservation practices,
and community goals as expressed in the tribal management plans and
appropriate tribal ordinances.
Sec. 161.4 To what lands does this part apply?
The grazing regulations in this part apply to the Navajo
Partitioned Lands within the boundaries of the Navajo Indian
Reservation held in trust by the United States for the Navajo Nation.
Contiguous areas outside of the Navajo Partitioned Lands may be
included under this part for management purposes by BIA in consultation
with the affected permittees and other affected land users, and with
the concurrence of the Resources Committee. Other affected land users
include those holding approved assignments, permits, leases, and rights
of way for activities such as: home sites, farm plots, roads,
utilities, businesses, and schools.
Sec. 161.5 Can BIA waive the application of this part?
Yes. If a provision of this part conflicts with the objectives of
the agricultural resource management plan provided for in Sec.
161.200, or with a tribal law, BIA may waive the application of this
part unless the waiver would either:
(a) Constitute a violation of a federal statute or judicial
decision; or
(b) Conflict with BIA's general trust responsibility under federal
law.
Sec. 161.6 Are there any other restrictions on information given to
BIA?
Information that the BIA collects in connection with permits for
NPL in sections 161.102, 161.206, 161.301, 161.302, 161.304, 161.402,
161.500, 161.502, 161.604, 161.606, 161.703, 161.704, 161.708, 161.717,
161.800, 161.801, and 161.802 have been reviewed and approved by the
Office of Management and Budget. The OMB Control Number assigned is
1076-0162. Please note that a federal agency may not conduct or
sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
Subpart B--Tribal Policies and Laws Pertaining to Permits
Sec. 161.100 Do tribal laws apply to grazing permits?
Navajo Nation laws generally apply to land under the jurisdiction
of the Navajo Nation, except to the extent that those Navajo Nation
laws are inconsistent with this part or other applicable federal law.
This part may be superseded or modified by Navajo Nation laws with
Secretarial approval, however, so long as:
(a) The Navajo Nation laws are consistent with the enacting Navajo
Nation's governing documents;
(b) The Navajo Nation has notified BIA of the superseding or
modifying effect of the Navajo Nation laws;
(c) The superseding or modifying of the regulation would not
violate a federal statute or judicial decision, or conflict with the
Secretary's general trust responsibility under federal law; and
(d) The superseding or modifying of the regulation applies only to
Navajo Partitioned Lands.
Sec. 161.101 How will tribal laws be enforced on the Navajo
Partitioned Lands?
(a) Unless prohibited by federal law, BIA will recognize and comply
with tribal laws regulating activities on the Navajo Partitioned Lands,
including tribal laws relating to land use, environmental protection,
and historic or cultural preservation.
(b) While the Navajo Nation is primarily responsible for enforcing
tribal laws pertaining to the Navajo Partitioned Lands, BIA will:
(1) Assist in the enforcement of Navajo Nation laws;
(2) Provide notice of Navajo Nation laws to persons or entities
undertaking activities on the Navajo Partitioned Lands; and
(3) Require appropriate federal officials to appear in tribal
forums when requested by the tribe, so long as the appearance would
not:
(i) Be inconsistent with the restrictions on employee testimony set
forth at 43 CFR part 2, subpart E;
(ii) Constitute a waiver of the sovereign immunity of the United
States; or
(iii) Authorize or result in a review of (BIA) actions by the
tribal court.
(c) Where the provisions in this subpart are inconsistent with a
Navajo Nation law, but the provisions cannot be superseded or modified
by the Navajo Nation laws under Sec. 161.5, BIA may waive the
provisions under part 1 of 25 CFR, so long as the new waiver does not
violate a federal statute or judicial decision or conflict with the
Secretary's trust responsibility under federal law.
Sec. 161.102 What notifications are required that tribal laws apply
to grazing permits on the Navajo Partitioned Lands?
(a) The Navajo Nation must provide BIA with an official copy of any
tribal law or tribal policy that relates to this part. The Navajo
Nation must notify BIA of the content and effective dates of tribal
laws.
(b) BIA will then notify affected permittees of the effect of the
Navajo Nation law on their grazing permits. BIA will:
(1) Provide individual written notice; or
(2) Post public notice. This notice will be posted at the tribal
community building, U.S. Post Office, announced on local radio station,
and/or published in the local newspaper nearest to the permitted Navajo
Partitioned Lands where activities are occurring.
Subpart C--General Provisions
Sec. 161.200 Is an Indian agricultural resource management plan
required?
(a) Yes, Navajo Partitioned Lands must be managed in accordance
with the goals and objectives in the agricultural resource management
plan developed by the Navajo Nation, or by BIA in close consultation
with the Navajo Nation, under the Agricultural Act.
(b) The 10-year agricultural resource management and monitoring
plan must be developed through public meetings and completed within 3
years of the initiation of the planning activity. The plan must be
based on the public meeting records and existing survey documents,
reports, and other research from Federal agencies, tribal community
colleges, and land grant universities. When completed, the plan must:
(1) Determine available agricultural resources;
(2) Identify specific tribal agricultural resource goals and
objectives;
(3) Establish management objectives for the resources;
(4) Define critical values of the tribe and its members and provide
identified resource management objectives; and
(5) Identify actions to be taken to reach established objectives.
(c) Where the provisions in this subpart are inconsistent with the
Navajo Nation's agricultural resource management plan, the Secretary
may waive the provisions under part 1 of this title, so long as the
waiver does not violate a federal statute or judicial decision or
conflict with the Secretary's trust responsibility under federal law.
[[Page 58892]]
Sec. 161.201 Is environmental compliance required?
Actions taken by BIA under this part must comply with the National
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., applicable
provisions of the Council on Environmental Quality, 40 CFR part 1500,
and applicable tribal laws and provisions of the Navajo Nation
Environmental Policy Act CAP-47-95, where the tribal laws and
provisions do not violate a federal or judicial decision or conflict
with the Secretary's trust responsibility under federal law.
Sec. 161.202 How are range units established?
(a) BIA, with the concurrence of the Navajo Nation, will establish
range units on the Navajo Partitioned Lands to provide unified areas
for which range management plans can be developed to improve and
maintain soil and forage resources. Physical land features, watersheds,
drainage patterns, vegetation, soil, resident concentration, problem
areas, historical land use patterns, chapter boundaries, special land
uses and comprehensive land use planning will be considered in the
determination of range unit boundaries.
(b) BIA may modify range unit boundaries with the concurrence of
the Navajo Nation. This may include small and/or isolated portions of
Navajo Partitioned Lands contiguous to Navajo tribal lands in order to
develop more efficient land management.
Sec. 161.203 Are range management plans required?
Yes. BIA will:
(a) Consult with the Navajo Nation in planning conservation
practices, including grazing control and range restoration activities
for the Navajo Partitioned Lands.
(b) Develop range management plans with the concurrence of the
Navajo Nation.
(c) Approve the range management plans, after concurrence with the
Navajo Nation, and the implementation of the plan may begin
immediately. The plan will address, but is not limited to, the
following issues:
(1) Goals for improving vegetative productivity and diversity;
(2) Stocking rates;
(3) Grazing schedules;
(4) Wildlife management;
(5) Needs assessment for range and livestock improvements;
(6) Schedule for operation and maintenance of existing range
improvements and development for cooperative funded projects;
(7) Cooperation in the implementation of range studies;
(8) Control of livestock diseases and parasites;
(9) Fencing or other structures necessary to implement any of the
other provisions in the range management plan;
(10) Special land uses; and
(11) Water development and management.
Sec. 161.204 How are carrying capacities and stocking rates
established?
(a) BIA, with the concurrence of the Navajo Nation, will prescribe,
review and adjust the carrying capacity of each range unit by
determining the number of livestock, and/or wildlife, that can be
grazed on the Navajo Partitioned Lands without inducing damage to
vegetation or related resources on each range unit and the season or
seasons of use to achieve the objectives of the agricultural resource
management plan and range unit management plan.
(b) BIA, with the concurrence of the Navajo Nation, will establish
the stocking rate of each range or management unit. The stocking rate
will be based on forage production, range utilization, the application
of land management practices, and range improvements in place to
achieve uniformity of grazing under sustained yield management
principles on each range or management unit.
(c) BIA will review the carrying capacity of the grazing units on a
continuing basis and, in consultation with the Grazing Committee and
affected permittees, adjust the stocking rate for each range or
management unit as conditions warrant.
(d) Any adjustments in stocking rates will be applied equally to
each permittee within the management unit requiring adjustment.
Sec. 161.205 How are range improvements treated?
(a) Improvements placed on the Navajo Partitioned Lands will be
considered affixed to the land unless specifically exempted in the
permit. No improvement may be constructed or removed from Navajo
Partitioned Lands without the written consent of BIA and the Navajo
Nation.
(b) Before undertaking an improvement, BIA, Navajo Nation and
permittee will negotiate who will complete and maintain improvements.
The improvement agreement will be reflected in the permit.
Sec. 161.206 What must a permittee do to protect livestock from
exposure to disease?
In accordance with applicable law, permittees must:
(a) Vaccinate livestock;
(b) Treat all livestock exposed to or infected with contagious or
infectious diseases; and
(c) Restrict the movement of exposed or infected livestock.
Sec. 161. 207 What livestock are authorized to graze?
The following livestock are authorized to graze on the Navajo
Partitioned Lands: horses, cattle, sheep, goats, mules, burros,
donkeys, and llamas.
Subpart D--Permit Requirements
Sec. 161.300 When is a permit needed to authorize grazing use?
Unless otherwise provided for in this part, any person or legal
entity, including an independent legal entity owned and operated by the
Navajo Nation, must obtain a permit under this part before using Navajo
Partitioned Land for grazing purposes.
Sec. 161.301 What will a grazing permit contain?
(a) All grazing permits will contain the following provisions:
(1) Name of permit holder;
(2) Range management plan requirements;
(3) Applicable stocking rate;
(4) Range unit number and description of the permitted area;
(5) Animal identification requirements (i.e., brand, microchip,
freeze brand, earmark, tattoo, etc.);
(6) Term of permit (including beginning and ending dates of the
term allowed, as well as an option to renew, or extend);
(7) A provision stating that the permittee agrees that he or she
will not use, cause, or allow to be used any part of the permitted area
for any unlawful conduct or purpose;
(8) A provision stating that the permit authorizes no other
privilege than grazing use;
(9) A provision stating that no person is allowed to hold a grazing
permit in more than one range unit of the Navajo Partitioned Lands,
unless the customary use area extends beyond the range unit boundary;
(10) A provision reserving a right of entry by BIA and the Navajo
Nation for range survey, inventory and inspection or compliance
purposes;
(11) A provision prohibiting the creation of a nuisance, any
illegal activity, and negligent use or waste of resources;
(12) A provision stating how trespass proceeds are to be
distributed;
(13) A provision stating whether mediation will be used in the
event of a permit violation; and
[[Page 58893]]
(14) A provision stating that the permit cannot be subdivided once
it has been issued.
(b) Grazing permits will contain any other provision that in the
discretion of BIA with the concurrence of the Navajo Nation is
necessary to protect the land and/or resources.
(c) Grazing permits containing any special land use authorized
under Sec. 161.503 of this part must be included on the permit.
Sec. 161.302 What restrictions are placed on grazing permits?
Only a grazing permit issued under this part authorizes the grazing
of livestock within the Navajo Partitioned Lands. Grazing permits are
subject to the following restrictions:
(a) Grazing permits should not be issued for less than 2 animal
units (10 sheep units) or exceed 70 animal units (350 sheep units).
However, all grazing permits issued before the adoption of this
regulation will be honored and reissued with an adjusted stocking rate
if the permittee meets the eligibility and priority criteria found in
Sec. 161.400 of this part, and only if the carrying capacity and
stocking rate as determined under Sec. Sec. 161.204 and 161.403
allows.
(b) A grazing permit will be issued in the name of one individual.
(c) Only two horses will be permitted on a grazing permit.
(d) Grazing permits may contain additional conditions authorized by
Federal law or Navajo Nation law.
(e) A state/tribal brand only identifies the owner of the
livestock, but does not authorize the grazing of any livestock within
the Navajo Partitioned Lands.
(f) A permit cannot be subdivided once it has been issued.
Sec. 161.303 How long is a permit valid?
After its initial issuance, each grazing permit is valid for one
year beginning on the following January 1. All permits will be
automatically renewed annually if the permittee is in compliance with
all applicable laws including tallies and permit requirements.
Sec. 161.304 Must a permit be recorded?
A permit must be recorded by BIA following approval under this
subpart.
Sec. 161.305 When is a decision by BIA regarding a permit effective?
BIA approval of a permit will be effective immediately upon
signature, notwithstanding any appeal, which may be filed under part 2
of this title. Copies of the approved permit will be provided to the
permittee and made available to the Navajo Nation upon request.
Sec. 161.306 When are permits effective?
Unless otherwise provided in the permit, a permit will be effective
on the date on which BIA approves the permit.
Sec. 161.307 When may a permittee commence grazing on Navajo
Partitioned Land?
The permittee may graze on Navajo Partitioned Land on the date
specified in the permit as the beginning date of the term, but not
before BIA approves the permit.
Sec. 161.308 Must a permittee comply with standards of conduct if
granted a permit?
Yes. Permittees are expected to:
(a) Conduct grazing operations in accordance with the principles of
sustained yield management, agricultural resource management planning,
sound conservation practices, and other community goals as expressed in
Navajo Nation laws, agricultural resource management plans, and similar
sources.
(b) Comply with all applicable laws, ordinances, rules, provisions,
and other legal requirements. Permittee must also pay all applicable
penalties that may be assessed for non-compliance.
(c) Fulfill all financial permit obligations owed to the Navajo
Nation and the United States.
(d) Conduct only those activities authorized by the permit.
Subpart E--Reissuance of Grazing Permits
Sec. 161.400 What are the criteria for reissuing grazing permits?
(a) The Navajo Nation may prescribe eligibility requirements for
grazing allocations within 180 days following the effective date of
this part. BIA will prescribe the eligibility requirements after
expiration of the 180-day period if the Navajo Nation does not
prescribe eligibility requirements, or if satisfactory action is not
taken by the Navajo Nation.
(b) With the written concurrence of the Navajo Nation, BIA will
prescribe the following eligibility requirements, where only those
applicants who meet the following criteria are eligible to receive
permits to graze livestock:
(1) Those who had grazing permits on Navajo Partitioned Lands under
25 CFR part 167 (formerly part 152), and whose permits were canceled on
October 14, 1973;
(2) Those who are listed in the 1974 and 1975 Former Joint Use Area
enumeration;
(3) Those who are current residents on Navajo Partitioned Lands;
and
(4) Those who have a customary use area on Navajo Partitioned
Lands.
(c) Permits re-issued to applicants under this section may be
granted by BIA based on the following priority criteria:
(1) The first priority will go to individuals currently the age of
65 or older; and
(2) The second priority will go to individuals under the age of 65.
(d) Upon the recommendation of the NPL District Grazing Committee
and Resources Committee, BIA or Navajo Nation will have authority to
waive one of the eligibility or priority criteria.
Sec. 161.401 Will new permits be granted after the initial reissuance
of permits?
(a) Following the initial reissuance of permits under Sec.
161.400, the Navajo Nation can grant new permits, subject to BIA
approval, if:
(1) Additional permits become available; and
(2) The carrying capacity and stocking rates as determined under
Sec. Sec. 161.204 and 161.403 allow.
(b) The Navajo Nation must inform BIA if it grants any permits
under paragraph (a) of this section.
Sec. 161.402 What are the procedures for reissuing permits?
BIA, with the concurrence of the Navajo Nation, will reissue
grazing permits only to individuals that meet the eligibility
requirements in Sec. 161.400. Responsibilities for reissuance of
grazing permits are as follows:
(a) BIA will develop a complete list consisting of all former
permittees whose permits were cancelled and the number of animal units
previously authorized in prior grazing permits. This list will be
provided to the Grazing Committee and Resources Committee for their
review. BIA will also provide the Grazing Committee and Resources
Committee with the current carrying capacity and stocking rate for each
range unit within the Navajo Partitioned Lands, as determined under
Sec. 161.204.
(b) Within 90 days of receipt, the Grazing Committee will review
the list developed under Sec. 161.402(a), and make recommendations to
the Resources Committee for the granting of grazing permits according
to the eligibility and priority criteria in Sec. 161.400.
(c) If the Grazing Committee fails to make its recommendation to
the Resources Committee within 90 days after receiving the list of
potential permittees, BIA will submit its recommendations to the
Resources Committee.
(d) The Resources Committee will review and concur with the list of
proposed permit grantees, and then forward a final list to BIA for the
[[Page 58894]]
reissuance of grazing permits. If the Resources Committee does not
concur, the procedures outlined in Sec. 161.800 will govern.
(e) The final determination list of eligible permittees will be
published. Permits will not be issued sooner than 90 days following
publication of the final list.
Sec. 161.403 How are grazing permits allocated within each range
unit?
(a) Initial allocation of the number of animal units authorized in
each grazing permit will be determined by considering the number of
animal units previously authorized in prior grazing permits and the
current authorized stocking rate on a given range unit.
(b) Grazing permit allocations may vary from range unit to range
unit depending on the stocking rate of each unit, the range management
plan, and the number of eligible grazing permittees in the unit.
Subpart F--Modifying A Permit
Sec. 161.500 May permits be transferred, assigned or modified?
(a) Grazing permits may be transferred, assigned, or modified only
as provided in this section. Permits may only be transferred or
assigned as a single permit under Navajo Nation procedures and with the
approval of BIA. Permittees must reside within the same range unit as
the original permittee.
(b) Permits may be transferred, assigned, or modified with the
written consent of the permittee, District Grazing Committee and/or
Resources Committee and approved by BIA.
(c) BIA must record each transfer, assignment, or modification that
it approves under a permit.
Sec. 161.501 When will a permit modification be effective?
BIA approval of a transfer, assignment, or modification under a
permit will be effective immediately, notwithstanding any appeal, which
may be filed under part 2 of this title. Copies of approved documents
will be provided to the permittee and made available to the Navajo
Nation upon request.
Sec. 161.502 Will a special land use require permit modification?
Yes. When the Navajo Nation and BIA approve a special land use, the
grazing permit will be modified to reflect the change in available
forage. If a special land use is inconsistent with grazing activities
authorized in the permit, the special land use area will be withdrawn
from the permit, and grazing cannot take place on that part of the
range unit.
Subpart G--Permit Violations
Sec. 161.600 What permit violations are addressed by this subpart?
This subpart addresses violations of permit provisions other than
trespass. Trespass is addressed under subpart H.
Sec. 161.601 How will BIA monitor permit compliance?
Unless the permit provides otherwise, BIA and/or Navajo Nation may
enter the range unit at any reasonable time, without prior notice, to
protect the interests of the Navajo Nation and ensure that the
permittee is in compliance with the operating requirements of the
permit.
Sec. 161.602 Will my permit be canceled for non-use?
(a) If a grazing permit is not used by the permittee for a 2-year
period, BIA may cancel the permit upon the recommendation of the
Grazing Committee and with the concurrence of the Resources Committee
under Sec. 161.606(c). Non-use consists of, but is not limited to,
absence of livestock on the range unit, and/or abandonment of a
permittee's grazing permit.
(b) Unused grazing permits or portions of grazing permits that are
set aside for range recovery will not be cancelled for non-use.
Sec. 161.603 Can mediation be used in the event of a permit violation
or dispute?
A permit may provide for permit disputes or violations to be
resolved with the District Grazing Committee through mediation.
(a) The District Grazing Committee will conduct the mediation
before the Navajo Nation's appropriate hearing body, before BIA invokes
any cancellation remedies.
(b) Conducting the mediation may substitute for permit
cancellation. However, BIA retains the authority to cancel the permit
under Sec. 161.606.
(c) The Navajo Nation's appropriate hearing body decision will be
final, unless it is appealed to the Navajo Nation Supreme Court on a
question of law. BIA will defer to any ongoing proceedings, as
appropriate, in deciding whether to exercise any of the remedies
available to BIA under Sec. 161.606.
Sec. 161.604 What happens if a permit violation occurs?
(a) If the Resources Committee notifies BIA that a specific permit
violation has occurred, BIA will initiate an appropriate investigation
within 5 business days of that notification.
(b) Unless otherwise provided under tribal law, when BIA has reason
to believe that a permit violation has occurred, BIA or the authorized
tribal representative will provide written notice to the permittee
within 5 business days.
Sec. 161.605 What will a written notice of a permit violation
contain?
The written notice of a permit violation will provide the permittee
with 10 days from the receipt of the written notice to:
(a) Cure the permit violation and notify BIA that the violation is
cured;
(b) Explain why BIA should not cancel the permit;
(c) Request in writing additional time to complete corrective
actions. If additional time is granted, BIA may require that certain
actions be taken immediately; or
(d) Request mediation under Sec. 161.603.
Sec. 161.606 What will BIA do if the permittee doesn't cure a
violation on time?
(a) If the permittee does not cure a violation within the required
time period, or if the violation is not referred to District Grazing
Committee for mediation, BIA will consult with the Navajo Nation, as
appropriate, and determine whether:
(1) The permit may be canceled by BIA under paragraph (c) of this
section and Sec. Sec. 161.607 through 161.608;
(2) BIA may invoke any other remedies available to BIA under the
permit;
(3) The Navajo Nation may invoke any remedies available to them
under the permit; or
(4) The permittee may be granted additional time in which to cure
the violation.
(b) If BIA grants a permittee a time extension to cure a violation,
the permittee must proceed diligently to complete the necessary
corrective actions within a reasonable or specified time from the date
on which the extension is granted.
(c) If BIA cancels the permit, BIA will send the permittee and the
District Grazing Committee a written notice of cancellation within 5
business days of the decision. BIA will also provide actual or
constructive notice of the cancellation to the Navajo Nation, as
appropriate. The written notice of cancellation will:
(1) Explain the grounds for cancellation;
(2) Notify the permittee of the amount of any unpaid fees and other
financial obligations due under the permit;
(3) Notify the permittee of his or her right to appeal under 25 CFR
part 2 of
[[Page 58895]]
this title, as modified by Sec. 161.607, including the amount of any
appeal bond that must be posted with an appeal of the cancellation
decision; and
(4) Order the permittee to cease grazing livestock on the next
anniversary date of the grazing permit or 180 days following the
receipt of the written notice of cancellation, whichever is sooner.
Sec. 161.607 What appeal bond provisions apply to permit cancellation
decisions?
(a) The appeal bond provisions in Sec. 2.5 of part 2 of this title
will not apply to appeals from permit cancellation decision. Instead,
when BIA decides to cancel a permit, BIA may require the permittee to
post an appeal bond with an appeal of the cancellation decision. The
requirement to post an appeal bond will apply in addition to all of the
other requirements in part 2 of this title.
(b) An appeal bond should be set in an amount necessary to protect
the Navajo Nation against financial losses that will likely result from
the delay caused by an appeal. Appeal bond requirements will not be
separately appealable, but may be contested during the appeal of the
permit cancellation decision.
Sec. 161.608 When will a permit cancellation be effective?
A cancellation decision involving a permit will not be effective
for 30 days after the permittee receives a written notice of
cancellation from BIA. The cancellation decision will remain
ineffective if the permittee files an appeal under Sec. 161.607 and
part 2 of this title, unless the decision is made immediately effective
under part 2. While a cancellation decision is ineffective, the
permittee must continue to comply with the other terms of the permit.
If an appeal is not filed in accordance with Sec. 161.607 and part 2
of this title, the cancellation decision will be effective on the 31st
day after the permittee receives the written notice of cancellation
from BIA.
Sec. 161.609 Can BIA take emergency action if the rangeland is
threatened?
Yes, if a permittee or any other party causes or threatens to cause
immediate, significant and irreparable harm to the Navajo Nation land
during the term of a permit, BIA will take appropriate emergency
action. Emergency action may include trespass proceedings under subpart
H, or judicial action seeking immediate cessation of the activity
resulting in or threatening harm. Reasonable efforts will be made to
notify the Navajo Nation, either before or after the emergency action
is taken.
Sec. 161.610 What will BIA do if livestock is not removed when a
permit expires or is cancelled?
If the livestock is not removed after the expiration or
cancellation of a permit, BIA will treat the unauthorized use as a
trespass. BIA may remove the livestock on behalf of the Navajo Nation,
and pursue any additional remedies available under applicable law,
including the assessment of civil penalties and costs under subpart H.
Subpart H--Trespass
Sec. 161.700 What is trespass?
Under this part, trespass is any unauthorized use of, or action on,
Navajo partitioned grazing lands.
Sec. 161.701 What is BIA's trespass policy?
BIA will:
(a) Investigate accidental, willful, and/or incidental trespass on
Navajo Partitioned Lands;
(b) Respond to alleged trespass in a prompt, efficient manner;
(c) Assess trespass penalties for the value of products used or
removed, cost of damage to the Navajo Partitioned Lands, and
enforcement costs incurred as a consequence of the trespass; and
(d) Ensure, to the extent possible, that damage to Navajo
Partitioned Lands resulting from trespass is rehabilitated and
stabilized at the expense of the trespasser.
Sec. 161.702 Who will enforce this subpart?
(a) BIA enforces the provisions of this subpart. If the Navajo
Nation adopts the provisions of this subpart, the Navajo Nation will
have concurrent jurisdiction to enforce this subpart. Additionally, if
the Navajo Nation so requests, BIA will defer to tribal prosecution of
trespass on Navajo Partitioned Lands.
(b) Nothing in this subpart will be construed to diminish the
sovereign authority of the Navajo Nation with respect to trespass.
Notification
Sec. 161.703 How are trespassers notified of a trespass
determination?
(a) Unless otherwise provided under tribal law, when BIA has reason
to believe that a trespass on Navajo Partitioned Lands has occurred,
BIA or the authorized tribal representative will provide written notice
within 5 business days to:
(1) The alleged trespasser;
(2) The possessor of trespass property; and
(3) Any known lien holder.
(b) The written notice under paragraph (a) of this section will
include the following:
(1) The basis for the trespass determination;
(2) A legal description of where the trespass occurred;
(3) A verification of ownership of unauthorized property (e.g.,
brands in the State Brand Book for cases of livestock trespass, if
applicable);
(4) Corrective actions that must be taken;
(5) Time frames for taking the corrective actions;
(6) Potential consequences and penalties for failure to take
corrective action; and
(7) A statement that unauthorized livestock or other property may
not be removed or disposed of unless authorized by BIA under paragraph
(b)(4) of this section.
(c) If BIA determines that the alleged trespasser or possessor of
trespass property is unknown or refuses delivery of the written notice,
a public trespass notice will be posted at the tribal community
building, U.S. Post Office, and published in the local newspaper
nearest to the Indian agricultural lands where the trespass is
occurring.
(d) Trespass notices under this subpart are not subject to appeal
under part 2 of this title.
Sec. 161.704 What can a permittee do if they receive a trespass
notice?
The trespasser will within the time frame specified in the notice:
(a) Comply with the ordered corrective actions; or
(b) Contact BIA in writing to explain why the trespass notice is in
error. The trespasser may contact BIA by telephone but any explanation
of trespass must be provided in writing. If BIA determines that a
trespass notice was issued in error, the notice will be withdrawn.
Sec. 161.705 How long will a written trespass notice remain in
effect?
A written trespass notice will remain in effect for the same action
identified in that written notice for a period of one year from the
date of receipt of the written notice by the trespasser.
Actions
Sec. 161.706 What actions does BIA take against trespassers?
If the trespasser fails to take the corrective action as specified,
BIA may take one or more of the following actions, as appropriate:
(a) Seize, impound, sell or dispose of unauthorized livestock or
other property involved in the trespass. BIA may keep the property
seized for use as evidence.
(b) Assess penalties, damages, and costs under Sec. 161.712.
[[Page 58896]]
Sec. 161.707 When will BIA impound unauthorized livestock or other
property?
BIA will impound unauthorized livestock or other property under the
following conditions:
(a) Where there is imminent danger of severe injury to growing or
harvestable crop or destruction of the range forage.
(b) When the known owner or the owner's representative of the
unauthorized livestock or other property refuses to accept delivery of
a written notice of trespass and the unauthorized livestock or other
property are not removed within the period prescribed in the written
notice.
(c) Any time after 5 days of providing notice of impoundment if the
trespasser failed to correct the trespass.
Sec. 161.708 How are trespassers notified of impoundments?
(a) If the trespass is not corrected in the time specified in the
initial trespass notice, BIA will send written notice of its intent to
impound unauthorized livestock or other property to:
(1) The unauthorized livestock or property owner or representative;
and
(2) Any known lien holder of the unauthorized livestock or other
property.
(b) If BIA determines that the owner of the unauthorized livestock
or other property or the owner's representative is unknown or refuses
delivery of the written notice, a public notice of intent to impound
will be posted at the tribal community building, U.S. Post Office, and
published in the local newspaper nearest to the Indian agricultural
lands where the trespass is occurring.
(c) After BIA has given notice as described in Sec. 161.707,
unauthorized livestock or other property will be impounded without any
further notice.
Sec. 161.709 What happens after unauthorized livestock or other
property are impounded?
Following the impoundment of unauthorized livestock or other
property, BIA will provide notice that the impounded property will be
sold as follows:
(a) BIA will provide written notice of the sale to the owner, the
owner's representative, and any known lien holder. The written notice
must include the procedure by which the impounded property may be
redeemed before the sale.
(b) BIA will provide public notice of sale of impounded property by
posting at the tribal community building, U.S. Post Office, and
publishing in the local newspaper nearest to the Indian agricultural
lands where the trespass is occurring. The public notice will include a
description of the impounded property, and the date, time, and place of
the public sale. The sale date must be at least 5 days after the
publication and posting of notice.
Sec. 161.710 How can impounded livestock or other property be
redeemed?
Impounded livestock or other property may be redeemed by submitting
proof of ownership and paying all penalties, damages, and costs under
Sec. 161.712 and completing all corrective actions identified by BIA
under Sec. 161.704.
Sec. 161.711 How will BIA sell impounded livestock or other property?
(a) Unless the owner or known lien holder of the impounded
livestock or other property redeems the property before the time set by
the sale, by submitting proof of ownership and settling all obligations
under Sec. Sec. 161.704 and 161.712, the property will be sold by
public sale to the highest bidder.
(b) If a satisfactory bid is not received, the livestock or
property may be re-offered for sale, returned to the owner, condemned
and destroyed, or otherwise disposed of.
(c) BIA will give the purchaser a bill of sale or other written
receipt evidencing the sale.
Penalties, Damages, and Costs
Sec. 161.712 What are the penalties, damages, and costs payable by
trespassers?
Trespassers on Navajo Partitioned Lands must pay the following
penalties and costs:
(a) Collection of the value of the products illegally used or
removed plus a penalty of double their values;
(b) Costs associated with any damage to Navajo Partitioned Lands
and/or property;
(c) The costs associated with enforcement of the provisions,
including field examination and survey, damage appraisal, investigation
assistance and reports, witness expenses, demand letters, court costs,
and attorney fees;
(d) Expenses incurred in gathering, impounding, caring for, and
disposal of livestock in cases which necessitate impoundment under
Sec. 161.707; and
(e) All other penalties authorized by law.
Sec. 161.713 How will BIA determine the amount of damages to Navajo
Partitioned Lands?
(a) BIA will determine the damages by considering the costs of
rehabilitation and re-vegetation, loss of future revenue, loss of
profits, loss of productivity, loss of market value, damage to other
resources, and other factors.
(b) BIA will determine the value of forage or crops consumed or
destroyed based upon the average rate received per month for comparable
property or grazing privileges, or the estimated commercial value or
replacement costs of the products or property.
(c) BIA will determine the value of the products or property
illegally used or removed based upon a valuation of similar products or
property.
Sec. 161.714 How will BIA determine the costs associated with
enforcement of the trespass?
Costs of enforcement may include detection and all actions taken by
us through prosecution and collection of damages. This includes field
examination and survey, damage appraisal, investigation assistance and
report preparation, witness expenses, demand letters, court costs,
attorney fees, and other costs.
Sec. 161.715 What will BIA do if a trespasser fails to pay penalties,
damages and costs?
This section applies if a trespasser fails to pay the assessed
penalties, damages, and costs as directed. Unless otherwise provided by
applicable Navajo Nation law, BIA will:
(a) Refuse to issue the permittee a permit for any use of Navajo
Partitioned Lands; and
(b) Forward the case for appropriate legal action.
Sec. 161.716 How are the proceeds from trespass distributed?
Unless otherwise provided by Navajo Nation law:
(a) BIA will treat any amounts recovered under Sec. 161.712 as
proceeds from the sale of agricultural property from the Navajo
Partitioned Lands upon which the trespass occurred.
(b) Proceeds recovered under Sec. 161.712 may be distributed to:
(1) Repair damages of the Navajo Partitioned Lands and property; or
(2) Reimburse the affected parties, including the permittee for
loss due to the trespass, as negotiated and provided in the permit.
(c) Reimburse for costs associated with the enforcement.
(d) If any money is left over after the distribution of the
proceeds described in paragraph (b) of this section, BIA will return it
to the trespasser or, where the owner of the impounded property cannot
be identified within 180 days, the net proceeds of the sale will be
deposited into the appropriate Navajo Nation account or transferred to
the Navajo Nation under applicable tribal law.
[[Page 58897]]
Sec. 161.717 What happens if BIA does not collect enough money to
satisfy the penalty?
BIA will send written notice to the trespasser demanding immediate
settlement and advising the trespasser that unless settlement is
received within 5 business days from the date of receipt, BIA will
forward the case for appropriate legal action. BIA may send a copy of
the notice to the Navajo Nation, permittee, and any known lien holders.
Subpart I--Concurrence/Appeals/Amendments
Sec. 161.800 How does the Navajo Nation provide concurrence to BIA?
(a) Actions taken by BIA under this part require concurrence of the
Navajo Nation under section 640d-9(e)(1)(A) of the Settlement Act.
(b) For any action requiring the concurrence of the Resources
Committee, the following procedures will apply:
(1) Unless a longer time is specified in a particular section, or
unless BIA grants an extension of time, the Resources Committee will
have 45 days to review and concur with the proposed action;
(2) If the Resources Committee concurs in writing with all or part
of BIA proposed action, the action or a portion of it may be
immediately implemented;
(3) If the Resources Committee does not concur with all or part of
the proposed action within the time prescribed in paragraph (b)(1) of
this section, BIA will submit to the Resources Committee a written
declaration of non-concurrence. BIA will then notify the Resources
Committee in writing of a formal hearing to be held not sooner than 30
days from the date of the non-concurrence declaration;
(4) The formal hearing on non-concurrence will permit the
submission of written evidence and argument concerning the proposal.
BIA will take minutes of the hearing. Following the hearing, BIA may
amend, alter, or otherwise change the proposed action. If, following a
hearing, BIA alters or amends portions of the proposed plan of action,
BIA will submit the altered or amended portions of the plan to the
Resources Committee for its concurrence; and
(5) If the Resources Committee fails or refuses to give its
concurrence to the proposal, BIA may implement the proposal only after
issuing a written order, based upon findings of fact, that the proposed
action is necessary to protect the land under the Settlement Act and
the Agricultural Act.
Sec. 161.801 May decisions under this part be appealed?
(a) Appeals of BIA decisions issued under this part may be taken in
accordance with procedures in part 2 of 25 CFR.
(b) All appeals of decisions by the Grazing Committee and Resources
Committee will be forwarded to the Navajo Nation's Office of Hearings
and Appeals.
Sec. 161.802 How will the Navajo Nation recommend amendments to this
part?
The Resources Committee will have final authority on behalf of the
Navajo Nation to approve amendments to the Navajo Partitioned Lands
grazing provisions, upon the recommendation of the Grazing Committee
and the Navajo-Hopi Land Commission, and the concurrence of BIA.
[FR Doc. 05-20100 Filed 10-6-05; 8:45 am]
BILLING CODE 4310-W7-P