[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
EXAMINING IMPACTS OF FEDERAL NATURAL RESOURCES LAWS GONE ASTRAY
=======================================================================
OVERSIGHT HEARING
BEOFRE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, May 24, 2017
__________
Serial No. 115-7
__________
Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Chairman Emeritus Madeleine Z. Bordallo, GU
Louie Gohmert, TX Jim Costa, CA
Vice Chairman Gregorio Kilili Camacho Sablan,
Doug Lamborn, CO CNMI
Robert J. Wittman, VA Niki Tsongas, MA
Tom McClintock, CA Jared Huffman, CA
Stevan Pearce, NM Vice Ranking Member
Glenn Thompson, PA Alan S. Lowenthal, CA
Paul A. Gosar, AZ Donald S. Beyer, Jr., VA
Raul R. Labrador, ID Norma J. Torres, CA
Scott R. Tipton, CO Ruben Gallego, AZ
Doug LaMalfa, CA Colleen Hanabusa, HI
Jeff Denham, CA Nanette Diaz Barragan, CA
Paul Cook, CA Darren Soto, FL
Bruce Westerman, AR Jimmy Panetta, CA
Garret Graves, LA A. Donald McEachin, VA
Jody B. Hice, GA Anthony G. Brown, MD
Aumua Amata Coleman Radewagen, AS Wm. Lacy Clay, MO
Darin LaHood, IL
Daniel Webster, FL
David Rouzer, NC
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Jason Knox, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
------
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
RAUL R. LABRADOR, ID, Chairman
A. DONALD McEACHIN, VA, Ranking Democratic Member
Louie Gohmert, TX Ruben Gallego, AZ
Aumua Amata Coleman Radewagen, AS Jared Huffman, CA
Jack Bergman, MI Darren Soto, FL
Mike Johnson, LA Wm. Lacy Clay, MO
Vice Chairman Raul M. Grijalva, AZ, ex officio
Jenniffer Gonzalez-Colon, PR
Rob Bishop, UT, ex officio
---------
CONTENTS
----------
Page
Hearing held on Wednesday, May 24, 2017.......................... 1
Statement of Members:
Labrador, Hon. Raul R., a Representative in Congress from the
State of Idaho............................................. 1
Prepared statement of.................................... 3
McEachin, Hon. A. Donald, a Representative in Congress from
the Commonwealth of Virginia............................... 4
Prepared statement of.................................... 5
Statement of Witnesses:
Cook, Hon. David, Owner, DC Cattle Company, LLC, Globe,
Arizona.................................................... 15
Prepared statement of.................................... 16
Questions submitted for the record....................... 18
Supplemental testimony submitted for the record.......... 20
Dillon, Hon. Diane, County Supervisor, Napa County,
California................................................. 6
Prepared statement of.................................... 8
Questions submitted for the record....................... 14
Maloy, Celeste, Deputy Attorney, Washington County, Utah..... 26
Prepared statement of.................................... 27
Questions submitted for the record....................... 29
Pinto, Kendra, Counselor Chapter House Member, Nageezi, New
Mexico..................................................... 21
Prepared statement of.................................... 23
Additional Materials Submitted for the Record:
Bureau of Land Management, May 11, 2017 Letter from current
and former members of the Western, Central, and Eastern
Montana Resource Advisory Councils to the Department of the
Interior Secretary Ryan Zinke.............................. 36
Federal Land Policy and Management Act of 1976, Section 201.. 43
List of documents submitted for the record retained in the
Committee's official files................................. 45
Wessell, Ty, County Commissioner, District 4, Leelanau
County, Michigan, June 1, 2017 Letter to Rep. Bergman...... 44
OVERSIGHT HEARING ON EXAMINING IMPACTS OF FEDERAL NATURAL RESOURCES
LAWS GONE ASTRAY
----------
Wednesday, May 24, 2017
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 9:03 a.m., in
room 1324, Longworth House Office Building, Hon. Raul Labrador
[Chairman of the Subcommittee] presiding.
Present: Representatives Labrador, Gohmert, Johnson,
Bishop; McEachin, Gallego, and Soto.
Mr. Labrador. The Subcommittee on Oversight and
Investigations will come to order. The Subcommittee is meeting
today to hear testimony on examining the impacts of Federal
natural resources laws gone astray.
Under Committee Rule 4(f), any oral opening statements at a
hearing are limited to the Chairman, the Ranking Minority
Member, the Vice Chair, and the Vice Ranking Member. Therefore,
I ask unanimous consent that all other Members' opening
statements be made part of the hearing record, if they are
submitted to the Subcommittee Clerk by 5:00 p.m.
Hearing no objections, so ordered.
I will now recognize myself for 5 minutes for an opening
statement.
STATEMENT OF THE HON. RAUL R. LABRADOR, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF IDAHO
Mr. Labrador. Today, we will examine the implementation of
three Federal natural resource laws: the Indian Reorganization
Act, known as IRA; the Wilderness Act; and the Federal Land
Policy and Management Act, also referred to as FLPMA.
The Constitution grants responsibility to the legislative
branch to enact our Nation's laws, and charges the executive
branch with carrying them out in accordance with congressional
intent. However, as we will hear today, that is not often the
case in how things work out.
For too long, Federal agencies have been permitted to
disregard congressional intent, and implement the laws Congress
passes, sometimes ignoring the law's original purpose. This
affront to the separation of powers must be stopped, and we
must look to curbing abuse by the executive branch and
reasserting power over the unelected bureaucracy. And that is
why we are holding this hearing today.
While our focus this morning is on the implementation
specifically of the IRA, the Wilderness Act, and FLPMA, today's
hearing could have examined the wayward implementation of any
number of different statutes within the Committee's
jurisdiction. This Subcommittee will continue to identify and
bring to light other similar bureaucratic abuses.
Ensuring the proper application of the laws Congress passes
should be a lot more simple than it has been in the past.
However, as we will hear today, that is not how Federal
agencies operate.
Take for instance the manner in which the Department of the
Interior implements the IRA. In 2009, the U.S. Supreme Court
ruled that the IRA limits Interior's ability to accept land
into trust on behalf of Native American tribes to only those
tribes that were under Federal jurisdiction when it was enacted
in 1934. This is clearly stated in the law itself.
Yet, apparently, Interior has considered the Supreme
Court's mandate to be a mere advisory opinion, because in 2014,
its solicitor issued a memo that effectively allows Interior to
define the meaning of ``under Federal jurisdiction'' however it
pleases.
During the previous administration, Interior informed this
Committee that it did not maintain a list of tribes that were
under Federal jurisdiction when it was enacted, and that it did
not intend to prepare one either. To date, this Committee has
not been able to identify, nor has Interior been able to
provide, a single instance where a land-into-trust application
has been denied on account of the tribe's not being under
Federal jurisdiction in 1934.
This morning, we will also hear how Federal land management
agencies routinely fail to take into account the perspective of
local communities that will be most significantly affected by
their decisions. Instead, Interior has allowed land management
decisions to be influenced by DC bureaucrats and out-of-touch
litigation brought by environmental advocacy groups.
This Subcommittee heard these concerns time and time again
during the previous administration, and it is my hope that the
Federal land management agencies will now refocus their
implementation of the laws, such as the Wilderness Act and
FLPMA, as they were intended.
FLPMA's mandate for our public lands to be managed on the
basis of ``multiple use and sustained yield'' may seem like a
term of art to many, but those who have lived and relied upon
the land for generations know that this principle is critical.
It is critical not only to their income, their way of life, and
their communities, but also to our Nation, ensuring that we
will all benefit from a stable food supply, energy supply, and
economic security.
However, the over-regulation of administratively designated
wilderness study areas, areas of critical environmental
concern, and decades-long withdrawals of mineral leases
undermine the notion of multiple use, impacting all of us
throughout our Nation.
I would like to thank our witnesses for being here today to
lend their perspectives as we delve into the impacts of these
expanded laws, and I look forward to hearing your testimony.
[The prepared statement of Mr. Labrador follows:]
Prepared Statement of the Hon. Raul R. Labrador, Chairman, Subcommittee
on Oversight and Investigations
Today we will examine the implementation of three Federal natural
resources laws--the Indian Reorganization Act, known as the IRA, the
Wilderness Act, and the Federal Land Policy and Management Act, also
referred to as FLPMA.
The Constitution grants responsibility to the legislative branch to
enact our Nation's laws, and charges the executive branch with carrying
them out, in accordance with congressional intent. However, as we will
hear today, that's not often the case in how things work out. For too
long, Federal agencies have been permitted to disregard congressional
intent, and implement the laws Congress passes sometimes ignoring the
law's original purpose. This affront to the separation of powers must
be stopped, and we must look to curbing abuse by the executive branch
and reasserting power over the unelected bureaucracy. And, that's why
we are holding this hearing today.
While our focus this morning is on the implementation specifically
of the IRA, the Wilderness Act, and FLPMA, today's hearing could have
examined the wayward implementation of any number of statutes within
the Committee's jurisdiction. This Subcommittee will continue to
identify and bring to light other similar bureaucratic abuses.
Ensuring the proper application of the laws Congress passes should
be more simple.
However, as we will hear today, that's not how Federal agencies
operate. Take for instance the manner in which the Department of the
Interior implements the IRA. In 2009, the U.S. Supreme Court ruled that
the IRA limits Interior's ability to accept land into trust on behalf
of Native American tribes to only those tribes that were under Federal
jurisdiction when the IRA was enacted in 1934. This is clearly stated
in the law itself. Yet, apparently Interior has considered the Supreme
Court's mandate to be a mere advisory opinion, because in 2014 its
solicitor issued a memo that effectively allows Interior to define the
meaning of ``under Federal jurisdiction'' however it pleases.
During the previous administration, Interior informed this
Committee that it did not maintain a list of tribes that were under
Federal jurisdiction when the IRA was enacted, and that it didn't
intend to prepare one either. To date, this Committee has not been able
to identify, nor has Interior been able to provide, a single instance
where a land-into-trust application has been denied on account of the
tribe's not being under Federal jurisdiction in 1934.
This morning we also will hear how Federal land management agencies
routinely fail to take into account the perspective of local
communities that will be most significantly affected by their
decisions. Instead, Interior has allowed land management decisions to
be influenced by DC bureaucrats and out-of-touch litigation brought by
environmental advocacy groups. This Subcommittee heard these concerns
time and again during the previous administration, and it is my hope
that the Federal land management agencies will now refocus their
implementation of the laws such as the Wilderness Act and FLPMA as they
were intended.
FLPMA's mandate for our public lands to be managed on the basis of
``multiple use and sustained yield'' may seem like a term of art to
many, but those who have lived and relied upon the land for generations
know that this principle is critical. It's critical not only to their
income, their way of life, and their communities, but also to our
Nation--ensuring that we all benefit from a stable food supply, energy
supply, and economic security. However, the over-regulation of
administratively designated wilderness study areas, areas of critical
environmental concern, and decades-long withdrawals of mineral leases
undermine the notion of multiple use, impacting all of us throughout
our Nation.
I would like to thank our witnesses for being here today to lend
their perspectives as we delve into the impacts of these expanded laws,
and I look forward to hearing your testimony. I now recognize the
Ranking Member of the Subcommittee, Mr. McEachin of Virginia, for 5
minutes.
______
Mr. Labrador. I now recognize the Ranking Member of the
Subcommittee, Mr. McEachin of Virginia, for 5 minutes.
STATEMENT OF THE HON. A. DONALD McEACHIN, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF VIRGINIA
Mr. McEachin. Thank you, Mr. Chairman, and thank you to
each of our witnesses for making the time to be here today. I
would like to give a special thanks to the Minority witness,
Kendra Pinto, for having made herself available on such short
notice.
Ms. Pinto is a powerful advocate and voice for her
community, the Counselor Chapter, Navajo Nation in New Mexico.
Her home is also known as the San Juan Basin, which she shares
with tens of thousands of oil and gas wells.
A 2016 report by the Center for American Progress found
that, ``out of the 15 regions with the most methane pollution
from oil and gas production, New Mexico's San Juan Basin ranked
third in overall emissions at 5.2 million metric tons, and
number one in per-well emissions at 227 metric tons per well.''
Methane is far from the only airborne contaminant from
these fracking operations. Ms. Pinto found levels of hydrogen
sulfide between a school and a well that are dangerous,
especially to children. A peer-reviewed summary of health
concerns with fracking emissions discussed other chemicals of
concern. It said, ``Nitrogen oxides can irritate the
respiratory system, while particulate matter can exacerbate
pre-existing respiratory and cardiovascular problems, cause
respiratory health effects, and damage lung tissue. Acute
exposure to benzene can cause drowsiness, headaches, and eye,
skin, and respiratory tract infections, and chronic exposure
can cause blood disorders, including aplastic anemia, as well
as reproductive effects. Benzene is also a known human
carcinogen causing leukemia.''
Health effects of these emissions from these fracking wells
are not restricted to chemical exposures. A major explosion and
fire last year at a fracking site in Nageezi, New Mexico, near
where Ms. Pinto lives, burned for 5 days. Some residents
reported respiratory and other health problems. It killed pets
and livestock in the area, and forced the evacuation of
residents. Some refuse to return because they are scared.
This community could benefit from stronger protections for
residents, their health, the air they breathe, the water they
drink, and the land they farm. The BLM's methane rule aims to
provide some relief, but my friends on the other side of the
aisle have something different in mind.
They first tried to permanently repeal the protective
methane rule and anything resembling it by using the
Congressional Review Act. They failed, because it is a popular
rule among both parties. Polls show overwhelming support for
the rule, with 80 percent of voters in western states
supporting requirements for companies to capture and sell
methane, instead of merely burning it into the air.
Secretary Zinke has vowed to try to repeal it in any way
possible, but because it is so popular, he and his colleagues
in Congress have tried to create the appearance of support for
their own unpopular positions by shutting out locals and
amplifying voices from the oil and gas industry. The Secretary
has suspended the Resource Advisory Councils, the mechanism the
Department uses to collect input of all political stripes from
local communities.
The Secretary talked about the methane rule with more than
a dozen CEOs and others from the Domestic Energy Producers
Alliance, including Continental Resource's Harold Hamm. He
failed to meet with a single environmental group, most of which
are local- or state-based, during his first 2 months. The
Secretary is setting himself up to get the answer he wants when
he requests input on the repeal of the crucial public health
protections like the methane rule and the fracking rule.
My colleagues on this Subcommittee are following suit. The
Chairman and Vice Chairman sent letters on May 9, 2017 to
nearly 50 trade associations and companies soliciting feedback.
None were sent to citizen environmental groups or the public
health community. Environmental justice is defined as the fair
treatment and meaningful involvement of all people, regardless
of race, color, national origin, or income, with respect to the
development, implementation, and enforcement of environmental
laws, regulations, and policies.
Ms. Pinto has brought us textbook environmental injustice.
She and her community deserve better. As a co-founder of the
United for Climate Environmental Justice Task Force here in
Congress, I plan to fight until they get it.
Thank you, Mr. Chairman. I yield back.
[The prepared statement of Mr. McEachin follows:]
Prepared Statement of the Hon. A. Donald McEachin, Ranking Member,
Subcommittee on Oversight and Investigations
Thank you, Mr. Chairman. And thank you to each of our witnesses for
making the time to be here today. I would like to give a special thanks
to the Minority witness, Kendra Pinto, for making herself available on
short notice.
Ms. Pinto is a powerful advocate and voice for her community--the
Counselor Chapter, Navajo Nation in New Mexico. Her home is also known
as the San Juan Basin, which she shares with tens of thousands of oil
and gas wells.
A 2016 report by the Center for American Progress found that, ``out
of the 15 regions with the most methane pollution from oil and gas
production, New Mexico's San Juan Basin ranked third in overall
emissions at 5.2 million metric tons and number one in per-well
emissions at 227 metric tons per well.''
Methane is far from the only airborne contaminant from these
fracking operations. Ms. Pinto found levels of hydrogen sulfide between
a school and a well that are dangerous, especially to kids. A peer-
reviewed summary of health concerns with fracking emissions discussed
other chemicals of concern. It said: ``Nitrogen oxides can irritate the
respiratory system, while particulate matter can exacerbate pre-
existing respiratory and cardiovascular problems, cause respiratory
health effects, and damage lung tissue. Acute exposure to benzene can
cause drowsiness, headaches, and eye, skin, and respiratory tract
infections and chronic exposure can cause blood disorders, including
aplastic anemia, as well as reproductive effects. Benzene is also a
known human carcinogen, causing leukemia.''
Health effects of fugitive emissions from these fracking wells are
not restricted to chemical exposures. A major explosion and fire last
year at a fracking site in Nageezi, New Mexico, near where Ms. Pinto
lives, burned for 5 days. Some residents reported respiratory and other
health problems. It killed pets and livestock in the area and forced
the evacuation of residents. Some refuse to return because they are
scared.
This community could benefit from stronger protections for
residents, their health, the air they breathe, the water they drink,
and the land they farm. The BLM's methane rule aims to provide some
relief. But my friends on the other side of the aisle have something
different in mind.
They first tried to permanently repeal the protective methane rule
and anything resembling it by using the Congressional Review Act. They
failed because it is a popular rule among both parties, even where you
would not expect. Polls show overwhelming support for the rule, with 80
percent of voters in western states supporting requirements for
companies to capture and sell methane instead of merely burning it into
the air.
Secretary Zinke has vowed to try to repeal it anyway. But because
it is so popular he and his colleagues in Congress have tried to create
the appearance of support for their own unpopular position by shutting
out locals and amplifying voices from the oil and gas industry.
Secretary Zinke suspended the Resource Advisory Councils, the mechanism
the Department uses to collect input of all political stripes from
locals around the country.
Then, while Secretary Zinke talked about the methane rule with more
than a dozen CEOs and others from the Domestic Energy Producers
Alliance, including Continental Resource's Harold Hamm, he failed to
meet with a single environmental group, most of which are local- or
state-based, during his first 2 months in office. The Secretary is
setting himself up to get the answer he wants when he requests input on
the repeal of crucial public health protections like the methane rule
and the fracking rule.
My colleagues on this Subcommittee are following suit. The Chairman
and Vice Chairman sent letters on May 9, 2017 to nearly 50 trade
associations and companies soliciting feedback on ``burdensome
government regulations or processes under the Subcommittee's
jurisdiction.'' None were sent to citizen environmental groups or the
public health community.
Environmental justice is defined as the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income, with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.
Ms. Pinto has brought us textbook environmental injustice. She and
her community deserve better. As a co-founder of the United for Climate
and Environmental Justice Task Force here in Congress, I plan to fight
until they get it.
Thank you and I yield back.
______
Mr. Labrador. Thank you. I will now introduce today's
witnesses. Diane Dillon is the District 3 Supervisor in Napa
County, California. David Cook is the owner of the DC Cattle
Company in Globe, Arizona, and also represents Arizona's 8th
Legislative District in the Arizona House of Representatives.
Kendra Pinto is a Twin Pines resident and Counselor Chapter
House Member of the Navajo Nation in Nageezi, Arizona. Did I
say that right?
Ms. Pinto. New Mexico.
Mr. Labrador. Oh, sorry, New Mexico. I apologize.
Celeste Maloy is a deputy attorney for the Washington
County Attorney's Office in St. George, Utah.
Let me remind the witnesses that under our Committee Rules,
oral statements must be limited to 5 minutes, but your entire
written statement will appear in the hearing record.
In regards to testimony and questions, our microphones are
not automatic, so you will need to press the talk button before
speaking into the microphone. When you begin, the lights on the
witness table will turn green. When you have 1 minute
remaining, the yellow light will come on. Your time will have
expired when the red light comes on, and I will ask you to
please conclude your statement.
I will also allow the entire panel to testify before
questioning the witnesses.
The Chair now recognizes Supervisor Dillon for her
testimony.
STATEMENT OF THE HON. DIANE DILLON, COUNTY SUPERVISOR, NAPA
COUNTY, CALIFORNIA
Ms. Dillon. Thank you very much, Chairman Labrador, Ranking
Member McEachin, and members of the Subcommittee, as well as
Congressman Bishop, for the opportunity to testify today on
this important issue. I am Diane Dillon. I serve on the Napa
County Board of Supervisors.
Napa is located north of San Francisco. It is fundamentally
an agricultural county known for its exceptional wineries. But
you might not be aware that it is a relatively unpopulated
county, with about 140,000 residents.
The subject of this hearing is extremely important to all
California counties today.
Napa has been deeply concerned with how the Department
implements the fee-to-trust process, and we have worked in a
number of capacities to seek reform. Our views regarding the
process are informed not only by how it has affected us, but
many of the counties across California. I have been deeply
involved with CSAC, the California State Association of
Counties, and counties in other states, including New York,
Oregon, Minnesota, and Washington.
The impacts are profound. In California, we have 25 percent
of all the Nation's tribes: 109 federally recognized tribes,
and there are 78 tribal groups seeking recognition. We have
nearly 100 separate reservations or rancherias in the state.
The county supervisors and commissioners we have met with
across the Nation all believe what is desperately needed is a
fair Federal process with clear standards that will enable
tribes and counties to work together as partners, and not as
adversaries. What we have now is the opposite.
Congress enacted Section 5 of the Indian Reorganization
Act, the fee-to-trust authority, 83 years ago. And 83 years
ago, we were looking at different problems, or Congress was
looking at different problems. It was in the midst of the Great
Depression. Extreme poverty existed on most Indian
reservations, and it was exacerbated by Federal policies
transferring tribal lands to individual Indians to promote
assimilation, known as the allotment process.
So, the purposes for which Section 5 was implemented and
adopted bear no resemblance to the conditions we have today.
And that disconnect is what is responsible for the tremendous
conflict, controversy, and litigation we see all around the
Nation.
The Department has expanded its use of Section 5 beyond
what was intended. It was not intended to be indiscriminately
and extensively used, especially as it has been in the last 20
years.
Section 5 was inherently limited by an annual appropriation
limitation of $2 million a year. Many, if not most, Indians
were living in extreme poverty and poor health and living
conditions. There was simply no expectation that significant
amounts of land would ever be acquired in trust, because the
Indians that Congress was intending to assist in 1934 were
economically unable to acquire land, and that is not the
situation we have today with many trust acquisitions.
Today, we have tribes that have developed robust economies,
and investors pay many millions to help other tribal groups get
acknowledged and obtain trust land. The result has been a
steadily increasing amount of conflict and litigation.
What we also didn't have in 1934 was a system of land use
planning like we have today. In 1934, zoning was still in its
infancy--it existed mostly among the cities.
And today, every city and county in California and most
other states is required to adopt something called--in
California we call it a general plan. It is a plan we spend
millions of dollars for. It is supposed to govern our land use
for 10 to 20 years. And the Department seemingly gives that no
weight at all when it takes the trust land acquisition process
into consideration. It does not consider our general plan and
our land use.
People invest in their homes and in their businesses based
on our general plans, based on the land use plan that the local
government has. And the fee-to-trust acquisition process does
not look at that, because it was started under Section 5, and
Section 5 did not envision that.
We would like to see meaningful notice and transparency and
meaningful consultation in the process, consistency with local
land-use laws, consideration of changes in use to land. We have
had situations where land was taken into trust for a medical
clinic and, 6 years later, a 29-lane outdoor commercial gun
range is proposed on that very same land.
We need enforceable mitigation, and we need the opportunity
for repeal of land acquisition decisions before they are final.
Thank you very much, again, for the opportunity to testify
today.
[The prepared statement of Ms. Dillon follows:]
Prepared Statement of the Hon. Diane Dillon, Supervisor, Napa County,
California
Thank you Chairman Raul Labrador, Ranking Member A. Donald
McEachin, and members of the Subcommittee for the opportunity to
testify today on this important issue. My name is Diane Dillon, and I
serve on the Napa County Board of Supervisors. The Board of Supervisors
is both the legislative and the executive authority in Napa County. In
its executive role, the Board of Supervisors sets priorities for the
County. We approve budgets; supervise the official conduct of County
officers and employees; control all County property; and appropriate
and spend money on public safety, human service, health, and other
programs that meet the needs of County residents. In its legislative
role, our Board's most important function is to make determinations
consistent with our County's comprehensive land use plan.
The subject of this hearing is an extremely important one, not just
to Napa County, but to counties across the state of California. In my
role as County Supervisor, I have worked extensively with the
California State Association of Counties (CSAC), which represents
county governments before the California Legislature, administrative
agencies, and the Federal Government. I am serving in my second year as
Chair of the County and Tribal Government Relations Subcommittee of the
National Association of Counties (NACO).
While I am here on behalf of Napa County only, my views regarding
the problems the current fee-to-trust process creates and how that
process should be implemented have been informed by Napa County's
experiences and those of other counties in California and across the
United States. By working with CSAC to develop legislation and policies
intended to reduce the controversy and intergovernmental conflict the
Federal fee-to-trust process has caused, I have heard from counties
across the Nation about when the fee-to-trust process has worked and
when it has not. What we all believe is that what is desperately needed
is a fair Federal process with clear standards that will enable tribes
and counties to work together as partners--and not as adversaries,
which has unfortunately been increasingly the case.
Today's hearing, entitled ``Examining Impacts of Federal Natural
Resources Laws Gone Astray,'' is a sound way of considering the fee-to-
trust process set forth in Section 5 of the Indian Reorganization Act
of 1934 (``IRA''), 25 U.S.C. Sec. 5108. Congress enacted the IRA over
83 years ago to address a different problem than we have today. The
Department of the Interior (``Department'') has used Section 5 for
purposes other than those Congress was addressing in 1934, and despite
the vastly different legal, social, political, and economic conditions
we have today. The crux of the problem fundamentally is that Section 5
is outdated. The Subcommittee should consider: (1) how the Department's
use of Section 5 has expanded since 1934 and whether that use is
consistent with Congress's primary purposes in enacting the IRA in
1934; and (2) whether Section 5, in its current form, can be reconciled
with state and local legal frameworks governing land use development
and the modern economy. I would like to address both of those issues
and propose some changes for consideration.
A. The Department's gradual expansion of its fee-to-trust authority has
undermined intergovernmental relationships
There can be little doubt that the Department has gradually
expanded its trust authority beyond what Congress envisioned in 1934.
The most obvious evidence of that gradual expansion is the Supreme
Court's 2009 decision in Carcieri v. Salazar.\1\ That case involved a
challenge by the state of Rhode Island to the Department's authority to
acquire land in trust pursuant to Section 5 of the IRA for the
Narragansett Indian Tribe, an eastern tribe that had been placed under
formal guardianship by the Colony of Rhode Island and eventually the
state. Under Section 5, the Department may acquire trust lands ``for
the purpose of providing land for Indians.'' Congress defined
``Indian'' in Section 19 as:
---------------------------------------------------------------------------
\1\ 555 U.S. 379 (2009).
1. all persons of Indian descent who are members of any recognized
---------------------------------------------------------------------------
Indian tribe now under Federal jurisdiction;
2. all persons who are descendants of such members who were, on June
1, 1934, residing within the present boundaries of any
Indian reservation; and
3. all other persons of one-half or more Indian blood.
The Department argued that the word ``now'' in the first definition
meant at the time the Department acquired land in trust. The state
argued that ``now'' meant 1934, the year Congress enacted the IRA. The
Court agreed with the latter and held that the authority of the
Secretary of the Interior (``Secretary'') to acquire land in trust is
unambiguously limited ``to those tribes that were under the Federal
jurisdiction of the United States when the IRA was enacted in 1934.''
It does not appear, however, that the Department has accorded the
temporal restrictions the Court addressed in Carcieri with much weight.
Tribes, states, and local governments, for their part, sought
legislation to address the decision. Many tribes, for example, urged
Congress to pass narrowly tailored legislation to reverse the Court's
decision, with no other limitations. Napa County, along with CSAC and
counties from other states, supported broader changes to the IRA to
help address myriad conflicts the fee-to-trust process was generating.
But rather than meaningfully engage in that process, the Department
instead worked for over a year on a new legal interpretation of the
decades-old statute, with input from tribes seeking trust lands.
Claiming that Section 19 is ambiguous, the Department announced its new
theory in a 2010 decision to acquire land in trust for the Cowlitz
Tribe--a tribe that was not acknowledged until 2002, nor under Federal
jurisdiction in 1934 in any meaningful sense. In fact, the 2000
acknowledgment decision for the Cowlitz Tribe explicitly states the
tribe was not a ``reservation tribe under Federal jurisdiction or under
direct Federal supervision.'' The limitations in Section 19 of the IRA
must be meaningless if, relying on ``ambiguity,'' the Department can
conclude in 2000 that the tribe was not a ``reservation tribe under
Federal jurisdiction or under direct Federal supervision,'' but reach
the opposite conclusion in 2010.
In another case, the Department acquired land for the Mashpee
Tribe, which has a history virtually identical to the Narragansett
Tribe in Carcieri. The Mashpee Tribe, like the Narragansett Tribe, was
a tribe that was first under the guardianship and supervision of the
colony of Massachusetts and later under the jurisdiction of the
Commonwealth. The Department never acknowledged any responsibility for
the Mashpee Tribe, at least prior to acknowledging it in 2007. Rather
than rely on the first part of the definition of ``Indian'' used in the
Narragansett and Cowlitz cases, the Department used the second part of
the definition in Section 19 to contrive a way to take land into trust.
A Federal district court has since rejected the Department's decision,
but the land remains in trust and the Department is now evaluating
whether the tribe can qualify for trust land under the first part of
the definition, despite the Supreme Court's straightforward conclusion
in Carcieri.\2\ There have been a number of other challenges based on
the Carcieri decision in California and other states.
---------------------------------------------------------------------------
\2\ See Littlefield v. U.S. Department of Interior, 199 F.Supp.3d
391, 2016 WL 4098749 (D. Mass. July 28, 2016).
---------------------------------------------------------------------------
Coming on the heels of the Carcieri decision, the Department's
response in the Cowlitz situation was deeply troubling. The Supreme
Court held in Carcieri that there are temporal limits on the
Department's trust authority, and the Department responded by
developing an interpretation of Section 19 that reads those limits out
of existence.
Members of the Carcieri Court also expressed concerns regarding the
trust power itself, and the Department responded by establishing a goal
for itself of acquiring as much land in trust as possible.\3\ In fact,
between 2010 and 2016, the Department acquired almost 500,000 acres of
land in trust.\4\
---------------------------------------------------------------------------
\3\ The decision to acquire land in trust, however, is--as Chief
Justice Roberts has noted-- an ``extraordinary assertion of power''
where the Secretary ``gets to take land and give it a whole different
jurisdictional status apart from state law.'' Chief Justice Roberts
asked, ``Wouldn't you normally regard these types of definitions in a
restrictive way to limit that power? ''
\4\ https: / / www.doi.gov / pressreleases / obama-administration-
exceeds-ambitious-goal-restore-500000-acres-tribal-homelands.
---------------------------------------------------------------------------
When there is such doubt and confusion regarding the scope of the
Department's power, it is appropriate to take a step back to consider
the history of the statute, whether the purposes for which the statute
is being used today are consistent with congressional intent, and
whether the manner in which such decisions are being made is
appropriate, given changed conditions since 1934. Yet the Department
took the opposite approach, with the result of further alienating
communities that believe it is not merely indifferent to, but actually
dismissive of, their concerns about the impacts of trust acquisition.
B. The trust authority in Section 5 was not designed for use in the
modern economy
The problems to which Congress was responding in 1934 are not the
same problems that tribes and communities face today. When Congress
enacted the IRA, its primary purposes were to (1) stop the allotment of
tribal land (the government program of individualizing and privatizing
Indian lands) and (2) promote principles of tribal self-determination
and self-governance by giving tribes greater authority to manage their
lands and resources.\5\ The goal of protecting tribal land is obvious
from many of the provisions of the Act, which prohibit further
allotment of tribal land, extend periods of restricted fee, restore
surplus reservation lands to tribes, provide for the consolidation of
lands within reservations, and authorize the acquisition of land in
trust.
---------------------------------------------------------------------------
\5\ See County of Yakima v. Confederated Tribes & Bands of Yakima
Indian Nation, 502 U.S. 251, 255 (1992).
---------------------------------------------------------------------------
The fact that Congress wanted to protect tribal land, however, does
not mean that Congress intended for the trust authority to be used as
indiscriminately and extensively as it has been used. It is not even
reasonable to assume that Congress was anticipating that the Department
would extensively use the fee-to-trust power to acquire trust lands
purchased by tribes on the open market. When Congress passed the IRA in
1934, it was in the midst of the Great Depression. The impetus behind
the IRA was the Meriam Report, which detailed the extreme poverty,
health, and living conditions of most Indians and included statistics
showing that 71 percent of Indians reported a total income of less than
$200 per year.\6\ The IRA was only part of the effort to address the
conditions on reservation; special programs under the Civilian
Conservation Corps and the Works Progress Administration were also
implemented.\7\
---------------------------------------------------------------------------
\6\ https://www.indian.senate.gov/sites/default/files/upload/files/
Frederick-Hoxie-testimony.pdf (discussing history of IRA).
\7\ Id. at 8.
---------------------------------------------------------------------------
Congress protected tribal lands through a variety of mechanisms,
but in authorizing the acquisition of additional lands, it appropriated
funds for that purpose. It did so almost certainly because, absent
Federal funds, there was no way for impoverished Indians to acquire
lands. Thus, Section 5 generally authorizes the Secretary, ``in his
discretion, to acquire, through purchase, relinquishment, gift,
exchange, or assignment, any interest in lands,'' but it also limits
the moneys available for that purpose. Section 5 states, ``For the
acquisition of such lands, interests in lands, water rights, and
surface rights, and for expenses incident to such acquisition, there is
authorized to be appropriated, out of any funds in the Treasury not
otherwise appropriated, a sum not to exceed $2,000,000 in any one
fiscal year.'' The Department's ability to acquire land in trust was
understood to be inherently limited.
Circumstances--tribal and otherwise--have obviously changed since
the Great Depression. Over the past 83 years, many tribes have
developed robust economies from natural resource development and other
economic projects. Tribal gaming, in particular, has changed the
economic fortunes for many tribes, and created an opportunity to
acquire more trust land in economically attractive locations, resulting
in conflict and litigation. When Congress enacted Section 5, it did not
envision the economic power of many tribes today and it did not do so
against the backdrop of tribal gaming. This is no longer a system
limited to a $2,000,000 annual appropriation; it is a system where
investors will pay tens to hundreds of millions of dollars to help a
tribal group get acknowledged and/or obtain trust land, if in the
``right'' location.\8\ And yet we still have impoverished tribes; the
implementation of a 1934 solution has created two financial classes of
tribes.
---------------------------------------------------------------------------
\8\ In 2016, for example, it was reported that Genting Malaysia Bhd
had already invested about $250 million in promissory notes issued by
the Mashpee Wampanoag Tribal Gaming Authority for gaming development
and the fee-to-trust process. https: / / news.worldcasinodirectory.com
/ genting-announces-first-investment-management-deal-with-mashpee-
first-light-casino-in-massachuetts-25108.
---------------------------------------------------------------------------
Not only have economic circumstances changed since 1934, the
regulatory framework in which states and local governments operate has
changed. Most cities in the United States lacked zoning laws at the
turn of the century. In 1916, New York City was the first city in the
Nation to adopt a comprehensive zoning ordinance. By the 1920s,
hundreds of local governments adopted local zoning. Most Indian
reservations, however, were located significant distances from urban
areas.
Between the 1920s and 1960s, California cities controlled land use
primarily through zoning regulation. In 1972, however, the state of
California mandated comprehensive long-term planning and required local
controls to be consistent with the plan. Cities were required to
develop a general plan that addressed land use, traffic, housing, open
space, and public facilities. In addition, California passed the
California Environmental Quality Act in 1970, which requires local
agencies to follow certain procedures in developing general plans, as
well as when considering specific projects. People buy homes,
businesses make investments, and counties develop infrastructure based
in reliance on those comprehensive land use plans. And to the extent
that those plans change, the affected community can play a role in
those decisions through democratic and legal avenues.
In 1968, Napa County established the Nation's first agricultural
preserve. The legislation, which originally protected 26,000 acres of
valley floor, controls minimum parcel sizes (currently 40 acres) and
allows agriculture and homes as primary uses. ``The crafters of the
legislation had the foresight to recognize that we needed not to
prevent development but monitor it to make sure we were protecting the
natural landscape and utilizing the environment in a way that was
beneficial to residents, farmers, and developers alike.'' \9\ In 1990,
as further protection against urban growth in a world-renowned
agricultural area, Napa County residents by initiative voted to mandate
voters' approval for certain land use decisions within agricultural
areas of the County.\10\ There was simply nothing comparable to these
sorts of efforts in 1934 and no sense that Section 5 would or could be
used to upend democratically enacted protections, such as Napa's
agricultural preserve.
---------------------------------------------------------------------------
\9\ http://wordpress.napahistory.org/wordpress/napa-valley-
agricultural-preserve-2/.
\10\ The California Supreme Court upheld the ability of a voter
initiative to override the local legislative land use process in Devita
vs. County of Napa (1995) 9 Cal.4th 763.
---------------------------------------------------------------------------
It is the ability (and willingness) of the United States to over-
ride these local land use processes by exercising the fee-to-trust
authority that generates more conflict and litigation than any other
issue. Congress did not address local land use when it enacted Section
5 because local zoning was rudimentary in 1934; Congress could not have
been envisioning a day when tribes could purchase lands in urban areas
or agricultural preserves such as Napa's. Nor did it consider the
possibility that the Department would use Section 5 to completely strip
state and local governments of their authority over local land use,
with little to no regard for state and local concerns.
Although the Department has implemented regulations requiring it to
consider the views of affected states and local governments, trust
applications are virtually never denied on the basis that states and
local governments oppose them. While the amount of litigation related
to trust decisions demonstrates that the Department has not implemented
Section 5 with any serious regard for local impacts, there are also
studies to confirm this view. In 2013, Kelsey J. Waples reviewed all
111 fee-to-trust decisions by the Pacific Region BIA Office between
2001 and 2011.\11\ He found that BIA granted 100 percent of the
proposed acquisition requests and in no case did any of the factors BIA
is required to consider under its regulations weigh against approval of
an application.
---------------------------------------------------------------------------
\11\ Kelsey J. Waples, Extreme Rubber Stamping: The Fee-to-Trust
Process of the Indian Reorganization Act of 1934, 40 Pepperdine Law
Review 250 (2013).
---------------------------------------------------------------------------
The litigation and conflict these decisions have generated have not
led the Department to reconsider how it implements its fee-to-trust
authority and whether changes are in order to prevent such conflicts
from occurring. To the contrary, the Department has revised its
regulations to make it harder for affected parties to challenge a
decision or to have any remedy available if they succeed. The
Department has also eliminated its policy of staying the transfer of
title into trust upon a final decision, effectively stacking the deck
against the affected community that might challenge a Federal decision.
These are not changes that reflect a Federal agency concerned about
objective decision making or minimizing conflicts. These are policies
that appear to reflect an agency with contempt for communities
adversely affected by its decisions. And it is time for change.
C. Congress should develop a new process for acquiring lands in trust
The process for acquiring land in trust has created significant
controversy, serious conflicts between tribes and states, counties and
local governments--including decades of litigation--and broad distrust
of the fairness of the system. Congress should consider whether the
Department should have a role in acquiring land in trust at all or
whether trust decisions should be handled through legislation. It
should also consider the purposes for which lands will be used, the
impacts of the proposed uses (and any subsequent change of use) to
surrounding communities, and different standards that might be applied
to such decisions. These broader questions are important and ought to
be fully considered before moving forward.
If Congress determines that the Department should continue to play
a role in the trust acquisition process, it should impose a number of
requirements. Those include:
1. Notice and Transparency
The Department should be required to publish notice of an
application for land in trust on its website, as well as a copy of all
application materials, maps, legal descriptions, and related documents.
Under the current regulations, it is very difficult for affected
parties (local and state governments, and the public) to determine the
nature of the tribal proposal, evaluate the impacts, and provide
meaningful comments.
Notice should be provided to and comment sought from not just the
jurisdictional governments, but those governments from the communities
that are likely to be impacted by the proposed activities. The impacts
of trust decisions, particularly for gaming purposes, do not end at
city or county borders. They can be felt across entire regions. The
public services provided by neighboring states, counties, and cities
may be impacted and those impacts must be considered. Neighboring
tribes, including those with ancestral ties to the region, can be
affected; 25 miles is usually an inadequate measure for outreach.
The Department must do better and more to ascertain the impacts of
its decision making.
2. Consistency with the General Plan, Local Land Use, and other
Applicable Laws
The Department should not be permitted to acquire land in trust for
a tribe if the proposed use is inconsistent with local land use. If
local government is supportive of an inconsistent project, amendments
to the local land use law should be required to ensure that the state
and local processes enacted to give citizens a voice in the process are
not silenced. Tribes are able to seek land on the open market, which
includes the ability to purchase lands in areas where a proposed use
will be compatible with existing law. They are also able to seek
amendments that will enable a project to be consistent with local land
use law. The Federal law should be structured in a manner that
minimizes community conflict, and the Department should not be
permitted to upend state and local long-term planning through the trust
process.
This change alone will go far in reducing the community conflict we
see across the Nation.
3. Streamlined Process
The Department should make intergovernmental agreements a priority.
One way to do that is to develop an expedited fee-to-trust process for
projects where the applicant tribe has negotiated an agreement with the
jurisdictional governments addressing a variety of issues, including
environmental, socio-economic, and other impacts. Again, the goal is to
encourage tribes to partner with the affected community, to avoid an
adversarial situation.
A process that encourages cooperation and communication provides a
basis to expedite decisions and reduce costs and frustration for all
involved.
4. Meaningful Consultation
Under the current regulations, the Department limits the parties
from which it seeks information and does not conduct meaningful
outreach. The Department should be statutorily required to consult with
states, counties, and local governments and to consider comments
provided by private parties. Under the current regulations, the
Department does not invite comment by third parties even though they
may experience major negative impacts, although it will accept and
review such comments. Although the Department accepts comments from any
party, it does not necessarily give those comments any weight; the law
instead should mandate meaningful opportunity for consultation with
local governments to address the impacts of the project.
5. Limits on Acquisition
Congress should carefully consider whether there should be limits
on the amount of land that can be acquired in trust for a particular
tribe by defining ``need'' for land. The current approach does not
provide guidance as to what constitutes legitimate tribal need for a
trust land acquisition. To the contrary, the Department generally
considers ``need'' for land to be satisfied by the fact that a tribe
has purchased it. There are no standards other than the stipulation
that the land is necessary to facilitate tribal self-determination,
economic development or Indian housing. There are numerous examples of
the Department taking land into trust for economically and
governmentally self-sufficient tribes with large land bases.
It is incongruous, at best, for the Department to use a Great
Depression statute intended to help alleviate the conditions of Indians
living under Federal jurisdiction to benefit wealthy, economically
sophisticated tribes. The Shakopee Mdewakanton Tribe is reported to pay
its members over $1 million per year in gaming per capita payments, yet
the Department still acquires land in trust on their behalf.\12\ The
Seminole Tribe is reported to worth billions.\13\ Other cases seem to
defy common sense. In 2002, the St. Augustine Tribe opened a casino in
Coachella, California, despite the tribe consisting of only one adult
member.\14\ The last member of the tribe died in 1986, but that
member's granddaughter, who was raised by another grandmother, moved
back to the reservation with her three children after learning of her
heritage.
---------------------------------------------------------------------------
\12\ https: / / www.casino.org / news / lavish-living-for-the-
richest-tribe-owning-indian-casinos-in-america.
\13\ http: / / www.publicgaming.com / index.php / racinocasino- /
21380-how-the-seminole-tribe-of-florida-went-from-being-a-band-of-
outcasts-living-in-the-everglades-to-the-multibillionaire-owners-of-an-
iconic-global-brand.
\14\ https://indiancountrymedianetwork.com/news/eight-member-
augustine-tribe-opens-casino/.
---------------------------------------------------------------------------
Congress should also consider whether to apply different standards
for ``need'' depending on whether an application is for off-reservation
land. Under the Department's current interpretation of its authority,
every time the Department acquires land in trust, state and local laws
are generally eliminated and tribal law applies. As the amount of trust
land increases, the jurisdictional and legal complexity becomes
untenable. In particular, people may not be aware of which laws apply
where; tribes are not required to publish their laws or judicial
decisions. This problem is exacerbated when non-contiguous lands are
acquired in trust.
6. Changes in Use of Land
Congress should consider how and when tribes may change the
purposes for which trust lands will be used. There have been a number
of cases where tribes have changed the proposed use for trust land
after the land was taken into trust. As an example, a California tribe
sought and obtained approval for a medical facility on newly acquired
trust land near two elementary schools, a church, residences, and a
major state highway. The tribe later built the medical facility on
another parcel of trust land that had been placed in trust years
before. The tribe then decided to build a 29-lane outdoor commercial
gun range on the land taken into trust by the Department for the
medical facility.\15\ The public outcry was dramatic. Although the
tribe ultimately reduced the scope of its project, it can increase it
at any time.
---------------------------------------------------------------------------
\15\ See http://www.gunrangeinfo.com/archived-site/; http://
www.startribune.com/prior-lake-city-council-opposes-shakopee-tribe-s-
land-plans/363092071/.
---------------------------------------------------------------------------
Indeed, in 1934, Congress did not understand tribal sovereign
immunity in the manner it is understood today. The notion that tribes
enjoyed sovereign immunity was inchoate in 1934. Since then, however,
the Supreme Court has held that tribes enjoyed sovereign immunity for
off-reservation commercial conduct until 1998.\16\
---------------------------------------------------------------------------
\16\ See Kiowa Tribe of Oklahoma v. Manufacturing Technologies,
Inc., 523 U.S. 751 (1998).
---------------------------------------------------------------------------
Given these problems, it is important that Congress address this
issue in legislation.
Approved applications should require specific representations of
intended uses, and changes to those uses should not be permitted
without further reviews, including environmental impacts, and
application of relevant procedures and limitations. Such further review
should have the same notice, comment, and consultation as the initial
application. The law also should be changed to explicitly authorize
restrictions and conditions to be placed on land going into trust that
furthers the interests of both affected tribes and other affected
governments.
7. Enforceable Mitigation
In many environmental impact statements and records of decision,
the Department has concluded that a trust application will not
adversely impact the community because the impacts can be mitigated. It
does not, however, require there to actually be enforceable mitigation.
Other agencies condition permits on compliance with mitigation
requirements. The Department does not.
To the extent that a decision relies on a finding that impacts can
be mitigated, the Department should be required to identify an
enforceable intergovernmental agreement that provides the mitigation
cited or require, as a condition of acquisition, that the applicant
waive its immunity to allow the affected community to enforce the
mitigation.
8. Appeals of Land Acquisition Decisions
In November 2013, the Department finalized a rule eliminating the
Department's own ``self-stay'' policy, which had required the Secretary
to publish notice of a final trust decision 30 days before actually
transferring title.\17\ The waiting period was intended to ensure that
interested parties had the opportunity to seek judicial review before
the Secretary acquired title to the land. The new policy now directs
the Secretary or other BIA official to ``immediately acquire the land
in trust'' after a decision becomes final. The Department justified the
new rule by stating that the Department could remove land from trust,
if a decision was deemed arbitrary and capricious.
---------------------------------------------------------------------------
\17\ 25 CFR Part 151, BIA-2013-0005, RIN 1076-AF15.
---------------------------------------------------------------------------
The rule, however, has been abused. The Department has cut off
state rights by transferring land into trust and has refused reasonable
requests that it either stay the effect of a final decision or provide
even a day of notice to allow a potentially affected party to seek an
emergency injunction. The Department has transferred title to lands
before decisions were final, ignoring requests that the illegal
transfer be undone, and it has resisted removing land from trust after
a Federal court has held a trust decision to be arbitrary and
capricious. The Department has not lived up to its commitment to remove
land from trust when it has violated the law and it should not be
permitted to take title prior to judicial review.
The Department has also encouraged tribes to begin development
immediately upon acceptance of land into trust. If the beneficiary of
the trust decision does not intervene in a judicial proceeding, the
aggrieved party cannot seek emergency relief because of tribal
sovereign immunity. Thus, development can be completed before the
aggrieved party has been able to have their claims heard.
conclusion
I appreciate the opportunity to testify on the Department's fee-to-
trust authority. The legal, political, and economic landscape bears
little resemblance to what existed in 1934, and it is inappropriate, at
least, for the Department to implement Section 5 as if nothing has
changed over the last 83 years. It is long past time for Congress to
tackle this controversial issue.
______
Questions Submitted for the Record by Rep. Johnson to Diane Dillon,
Supervisor, Napa County, California
Question 1. In your written testimony you mentioned that through
regulations, the Department of the Interior has actually made it harder
for affected parties to challenge a fee-to-trust decision, could you
expand upon that?
Answer. Through the regulatory process, the Department of the
Interior (Department) has made it harder for affected parties to
challenge a fee-to-trust decision as follows:
After the Patchak decision in 2012, the Department abandoned
its self-stay policy. Immediately after the record of decision
is made in a fee-to-trust decision, the land is immediately
transferred to the tribe, which could start construction
activities right away. This change of regulatory process causes
more hardship for interested parties.
Question 2. I have heard that local governments have actually had
to resort to filing Freedom of Information Act requests just to find
out if a land-to-trust application has been filed with the Department
of the Interior for lands in their jurisdiction. Have you also heard of
local governments being forced to pursue this course of action, and if
so, what Federal policy is responsible for this?
Answer. Local governments have had to resort to filing Freedom of
Information Act requests follows:
The initial notice that a local government will receive is a letter
announcing the intent of a tribe to take land into trust and a
description of the property. The affected governments are then provided
the opportunity to send back information on taxes and law enforcement
jurisdiction. However, local governments (and even the state of
California) must send a request to the Bureau of Indian Affairs (BIA)
for a copy of the Fee to Trust Application. While the BIA provides
copies of the Scoping Hearing comments, the Draft EIS, and the FEIS to
interested parties, it does not provide the fee to trust application.
The Application provides important additional information.
Question 3. At the hearing's conclusion, Ranking Member McEachin
stated the following in regards to the Supreme Court's decision in
Carcieri v. Salazar, ``. . . I would ask for unanimous consent to
introduce into the record the decision known as Carcieri, which allowed
the Interior Department to recognize tribes that were not officially
recognized in 1934.'' Is Ranking Member McEachin's representation of
the Court's holding correct, and if not, why not?
Answer. I did not understand Ranking Member McEachin's request, so
decline to respond to this question.
______
Mr. Labrador. Thank you very much.
The Chair now recognizes Representative Cook for his
testimony.
STATEMENT OF THE HON. DAVID COOK, OWNER, DC CATTLE COMPANY,
LLC, GLOBE, ARIZONA
Mr. Cook. Thank you, Chairman Labrador, Ranking Member
McEachin and also Representative Bishop and other members of
the Committee for being able to testify before you today. My
name is David Cook; I am a rancher from Globe, Arizona, and
serve the people of Legislative District Number 8 at the
Arizona House of Representatives. My wife, Diana, and I own and
operate DC Cattle Company.
Gila County, where we live, is 97 percent public and
Federal land. Like most ranches in the West, we rely on our
Federal grazing allotments.
Laws like the Federal Land Policy and Management Act,
FLPMA, have a large impact on our communities and businesses.
FLPMA governs nearly all of our interactions with the Federal
land agencies, and often serves to limit our voice as the
primary impacted stakeholder. Failure of responsible management
often leads to dire consequences of our lands and rural
economies. I do not believe it was the intent of Congress to
disenfranchise communities like mine when laws like FLPMA and
the Wilderness Act were originally enacted, but that is
certainly where we have ended up today.
Under FLPMA, the Secretary has the ability to issue 10-year
grazing permits. Personally, our permit has been in review by
the Tonto National Forest for over 15 years, leaving my
business and family in a perpetual state of uncertainty. This
burden has prevented us from making necessary improvements to
the land--benefits that could not be realized by my family, as
well as my community.
If not for the relief provided by portions of the Grazing
Improvement Act passed by this body in 2014, our ranch and many
others would be pushed to the breaking point of uncertainty.
The original intent of FLPMA was to provide direction for
the management of our public lands which would emphasize and
protect the mandate for multiple use and sustained yield.
Unfortunately, the delegation of authority from Congress to the
land management agencies and their unchecked authority over
land use planning has resulted in abuse by administrators and
by radical environmental groups through relentless, offensive
litigation.
One example was the so-called Salt River Six, which was
comprised of six Forest Service allotments along the Salt River
that needed permit renewals. The Forest Service consulted with
several other Federal agencies during a 4-year process, but
would not consult with Gila County about potential impacts.
After more than 4 years, the Forest Service scrapped the
project. The situation remains unresolved, and the six separate
ranching operations remain in limbo. The economic impacts of
this uncertainty are devastating to rural economies, while
millions of tax dollars were wasted.
When wilderness areas are designated, it limits the use of
all natural resources within that area, which further reduces
the economic potential. In Gila County, our local ranchers have
been trying to prevent the closure of a 10-mile segment of
Forest Road 203. This roadway provides the only motorized
access to several privately owned and occupied homesteads.
While the Forest Service acknowledges the severe impacts
that proposed closure would create, they say they are unable to
stop the closure from taking place because the road is within
the wilderness area. They say they must comply with the
Wilderness Act and close the road since they just discovered it
after 50 years.
Wilderness designations have severely limited the ability
to properly maintain and enhance the ranching improvements. In
the Superstition Wilderness Area, the Rafter Cross Ranch was in
the process of constructing a fence just 20 feet off the road
next to the wilderness area. They planned to use an air
compressor and a post driver, but they were denied to use that
because it was mechanical, so the Forest Service made it much
more expensive and harder for them to do their work.
In conclusion, overly burdensome regulations continue to be
detrimental to the management and health of our public lands.
It is imperative that Congress act to remove the layers of red
tape that continue to bind ranchers and rural communities.
Thank you for this opportunity, and I look forward to
working with you to find a solution to this problem. I am happy
to answer any questions at any time.
[The prepared statement of Mr. Cook follows:]
Prepared Statement of the Hon. David Cook, on behalf of Public Lands
Council, National Cattlemen's Beef Association, Arizona Cattle Growers
Association
Chairman Labrador, Ranking Member McEachin, members of the
Committee; thank you for the invitation to testify before your
Committee today.
My name is David Cook I am a rancher from Globe, Arizona and serve
the people of Legislative District 8 in the Arizona House of
Representatives. My wife Diana and I own and operate DC Cattle Company
along with our two children, and we are partners in several other
ranches in Gila County. Gila County covers approximately 4,800 square
miles and contains less than 5 percent private deeded land. Over 55
percent is county is managed by the Tonto National Forest, with the
remainder made up of two Indian reservations at 37 percent and the
Bureau of Land Management at 7.5 percent. All of the ranches we operate
must utilize a Federal grazing permit with the Tonto National forest to
remain economically viable.
I provide these facts to give you an idea of why Federal laws like
the Federal Land Policy and Management Act (FLPMA) and the Wilderness
Act have such a large impact on our community. The first, FLPMA,
governs nearly all of our interactions with the Federal land use
planning process and often serves to limit our voice as a primary
impacted stakeholder. Further, special land designations on lands that
are already federally owned and subject to management decisions by the
Federal Government, like Wilderness designations, only create more
burdens for Federal agencies and typically serve to erode true multiple
use in favor of a ``hands off'' approach. This failure of responsible
management often leads to dire consequences for our region--
economically, ecologically, and culturally.
Gila County is rural Arizona, and more specifically, is
representative of the rural West, where local government and economic
drivers like ranching often have their voices and input diminished in
Federal planning processes. I do not believe it was the intent of
Congress to disenfranchise communities like mine when laws like FLPMA
and the Wilderness Act were originally enacted, but that is certainly
where we have ended up. The burden of compliance with these processes--
not to mention the struggle to have our voice as a stakeholder heard
and respected--has become the dominate consumer of time and resources
for anyone or any entity interacting with federally managed lands.
These Federal lands stifle the ability to have taxable income which
hurts our economy and our schools. So while I am going to give
specifics about my ranching operations I must stress that the decisions
made here in DC are hindering my community from moving forward and
force us to plead with the Federal Government for money for schools,
infrastructure, and other basic needs we could provide ourselves if our
local lands were productive and vibrant.
Under FLPMA, the Secretary has the ability to issue 10-year grazing
permits if agency personnel finds it satisfactory and appropriate for
said lands. Livestock grazing has been around for centuries and over
that time ranching families have invested a great deal of time and
financial resources to become more efficient and productive while
enhancing the landscapes they live and work on. At the same time the
U.S. Forest Service (USFS) and Bureau of Land Management (BLM) have
failed to recognize these achievements as we have seen a steady decline
in animal units on public lands since the inception of polices like the
Federal Lands Policy and Management Act. Personally, our permit has
been in review by the Tonto National Forest and awaiting a standard
renewal for over 15 years. This is evidence of a broken system that
leaves my business and family in a perpetual state of uncertainty.
Additionally, this burden has prevented me from making necessary
improvements and investments in these lands to become more efficient
and have the opportunity to create a more lucrative business--benefits
that could be realized by my family, as well as the community and our
Federal Government landlords.
As already mentioned, for 15 years I have been held hostage by the
Federal process to renew a permit for over 1,129 head of cattle, and I
am only one of the thousands of permittees across the West that face
similar issues. If not for the relief provided by portions of the
Grazing Improvement Act passed as part of the FY 2015 NDAA, which
provides for continuous operation of our permit while we wait in limbo
hoping for an eventual renewal, our ranch and many others would be
pushed to the breaking point by uncertainty. I can assure you that the
hold up on our renewal is not due to lack of time or resources. Other
permits have moved through the process and while USFS still has made
time to monitor where I have placed my salt blocks for the cattle and
issue notices of violation for feeding hay inside a corral, they cannot
find the time to complete the necessary work to renew my permit.
The original intent of this legislation was to provide direction
for the management of our public lands which would emphasize and
protect the mandate for multiple use and sustained yield. Unfortunately
and unintentionally, the delegation of authority from Congress to the
land management agencies and the unchecked authority over land use
planning that has resulted has been abused by administrators and
capitalized on by radical environmental groups through relentless
offensive litigation. This has led to further restrictions on public
lands, specifically for permitted activities, thereby eroding the
intent of multiple use. Furthermore, the intent to cooperate and
consult with local governments has not been properly used and has
instead served to de-prioritize crucial local government input and
consideration in the planning process.
One example was the so-called ``Salt River Six,'' which was
comprised of six forest service allotments along the Salt River that
needed permit renewals. USFS consulted with several other Federal
agencies during a 4-year process but would not consult with Gila County
about potential impacts to their general plan. After more than 4 years
of meetings, time, and resources USFS scrapped the project and started
asking permittees to disregard any of the previous years. At present,
the situation remains unresolved and six separate ranching operations
remain in limbo about the future of their business and no certainty
that they will continue to operate. The economic impacts of this
uncertainty on a rural economy are devastating.
When wilderness areas are designated, it limits the use of all
natural resources within that area, which further reduces the economic
potential of rural areas and counties. Industries such as cattle
grazing see a significant reduction in their ability to maintain the
infrastructure in which they need to operate their ranching businesses.
In Gila County, our local ranchers have been trying to work with
the U.S. Forest Service (USFS) to prevent the closure of a 10-mile
segment of Forest Road 203. This roadway provides the only motorized
access to several privately owned and occupied homesteads. It is also a
public roadway used by law enforcement, hunters, hikers, as well as
livestock grazing permittees and families who reside in the surrounding
Young and Globe communities. The closure of any stretch of this road
would be devastating. While the Forest Service acknowledges the severe
impacts that the proposed closure would create for this area, they are
unable to stop the closure from taking place. Unfortunately, it has
been discovered that the previously designated Sierra Ancha Wilderness
Area encompasses the 10-mile stretch of Forest Road 203 and they are
legally required to decommission the road to comply with the Wilderness
Act.
Wilderness designations have severely limited the ability to
properly maintain and enhance any ranch improvements despite the
original intentions of the legislation to not interfere with these
activities. In the Superstition wilderness area, the Rafter Cross Ranch
was in the process of constructing a pasture division fence on the
boundary of the wilderness adjacent to a USFS road. The plan was to use
an air driven T-post driver and have the air compressor unit on the
road 20 feet from the wilderness. Because this was a mechanical tool,
the USFS would not allow its use. This decision cost the ranch money in
labor and additional time to construct the fence. These types of
decisions continue to make it more difficult to operate in or near
wilderness designations. There are several allotments in the Tonto
National Forest that are vacant because the hardships, additional cost,
and regulation of a wilderness area cause the land to be unusable by a
productive use.
In conclusion, overly burdensome regulations continue to be
detrimental to the management and health of our public lands. It is
imperative that Congress act to remove the layers of red tape that
continue to bind ranchers and the rural communities they live in. The
planning and management of our Federal lands for multiple use and
sustained yield should be a collaborative one--with local communities
and stakeholders like Federal grazing permittees playing a key role,
rather than simply being subject to the whims of an overwhelmed
bureaucracy. Additionally, as an elected Representative to the Arizona
State Legislature, I can attest that these burdensome laws extend far
beyond the local businesses and communities I'm representing here
today. In fact they impact everything we do in a state like Arizona,
from industry, to tourism, to simply bringing necessary services like
electricity to our rural citizens.
Thank you for this opportunity, and I look forward to working with
you to find a solution to this problem.
______
Questions Submitted for the Record by Rep. Labrador to David Cook,
Owner, DC Cattle Company, LLC
Question 1a. In your testimony you highlighted that a 10-mile
segment of Forest Road 203 in Gila County was slated to be closed in
order to comply with the Wilderness Act. Could you elaborate more on
this?
Answer. The Tonto National Forest (TNF), that comprises
approximately 55 percent of Gila County, is in the process of Travel
Management Planning--an activity implementing a land management plan
and subject to the objection process described in 36 CFR 218 Subparts A
and B. The TNF website states, ``The key to making these decisions, and
ensuring they are sustainable over the long term, will be working
together at the local level.'' However, I find that this is not the
case for FS road 203 or our own permit. It is my understanding that
there are at least three current roads that are going to be closed
because of the travel management plan in relationship to the Wilderness
Act: FS 203 road mentioned here, and I have just learned about the road
(FS 487) going to Aztec peak, which hosts a FS fire lookout tower and
loops within a wilderness area, would be closed along with an Arizona
Public Service power transmission line maintenance road that is used
for the transmission line for the same reason. I am currently trying to
get that road number from the agency.
Here is what we requested be added to our FS permit concerning
travel management in 2015 and we have not received any written
response, to date:
Travel Management Guidelines and/or restrictions
Under USDA regulation (36 CFR Part 212--Travel Management), the
Tonto National Forest will be developing and implementing the Forest's
Travel Management Plan (TMP) within the near future. The TMP and
subsequent implementation decision will prohibit the general public
from use of motor vehicles for cross-country travel, as well as on
roads closed to motor vehicle use. Under the terms and conditions of
your term grazing permit you are authorized to conduct livestock
grazing activities on National Forest lands within the TNF as
authorized within your term grazing permit. Motor vehicle use that is
specifically needed, authorized, and/or directly related to the terms
and conditions of your grazing permit are exempted from the
prohibitions applied to the general public. This includes motor vehicle
use in order to conduct the following types of activities associated
with your term grazing permit:
Normal vehicular use needed to maintain all range
improvements assigned under your term permit as your
responsibility for maintenance.
Normal vehicular use as needed to properly check on and
care for your livestock authorized under your term grazing
permit.
Normal vehicular use as needed to check on forage, water,
and general range conditions within your permitted grazing
allotment.
Any other vehicular use needed to properly care for your
livestock and/or to redeem your responsibilities under the
term and conditions of your term grazing permit.
All motor vehicular use in conjunction with carrying out permitted
grazing activities shall be conducted in a responsible manner so as to
not cause and/or accelerate resource damage and/or cause degradation to
the soil or vegetation related resources. Special caution must be taken
so that vehicular use occurs only when soils are sufficiently dry and/
or frozen so as to avoid resource degradation or any long-lasting
negative impacts.
--Quoted from Chapter 10 Regional Office
We think this is the type of action that the agency should take to
help producers who are engaged in business on FS lands, not to ask them
each time needed to come to a Federal office during Federal hours and
days and plead and beg for permission each time something that is
already permitted needs to be done.
Question 1b. How would the private landowners who rely upon the
road be impacted? What would happen if an emergency would occur and the
road was inaccessible? Has the Forest Service taken these concerns into
account?
Answer. One of the ranching families would only have one access in
or out of their property when conditions permit. This year, they were
stuck for 2 months without any ingress or egress from their property
because FS 203 is now blocked and the water made the only other way
impossible to cross. The county government used to blade FS road 203
once a year but it is my understanding that the FS stopped funding the
county for such work and was going to do it themselves. It is my
understanding that they have never maintained the road since. The
closure of the road makes it a 12-hour horseback ride to that end of
the ranch and the corrals, making improvements and repair impossible
along with the transportation of cattle. If there was an emergency of
the medical nature, life would easily be lost because of the lack of
availability to medical services.
Question 2. The poverty and unemployment rates in Gila County are
significantly higher than the national average, with 21.3 percent of
residents living in poverty in 2015. Given that 96 percent of the land
in Gila County is federally owned, to what extent are burdensome
Federal regulations and land-use restrictions to blame for these
economic statistics?
Answer. I believe the burdensome Federal regulations are largely to
blame. For instance, our rural area and its economic wealth is derived
from natural resource jobs such as timber, grazing and minerals. Timber
has all been eliminated, and grazing has greatly been reduced and/or
eliminated in several areas because Federal regulations such as these
we have discussed have made it financially impossible to operate under
such restrictive conditions. That leaves mineral leases which are
constantly under attack from further Federal regulations such as air
quality standards or Federal lands are needed to expand the existing
mineral extractions. The cost of millions of dollars to get through the
required regulations such as Environmental Impact Statements, land
acquisitions, etc. drive these companies to other countries where these
regulations and requirements do not exist.
This equates to less financial opportunity for jobs and continued
education for rural citizens of my county and state. Many of our small
towns are land-locked by Federal lands and have no chance of expansion
for business or housing for our communities to grow, thus keeping our
rural areas in a state of depression as the Federal Government has a
strangle hold on them.
______
SUPPLEMENTAL TESTIMONY SUBMITTED FOR THE RECORD
DC Cattle Company, L.L.C.
Globe, Arizona
June 5, 2017
Hon. Raul Labrador, Chairman,
House Subcommittee on Oversight and Investigations,
Committee on Natural Resources,
Washington, DC 20513.
Re: Additional information for the record
Dear Chairman Labrador:
In my testimony, with limited time and with respect for you and the
committee, I provided detail that was fitting under the circumstances
that was and is true and correct. The FS (United States Forest Service)
took action and there was a redrawn line and pastures were
``exchanged,'' lines redrawn and improvements installed making the
allotment better suited for management. Also, at a later date, the two
allotments were combined by a single owner which created greater
flexibility and opportunity (Coolidge-Parker Allotments).
One-third of the ranch that we have not been able to use is an
additional permit that we partially own and have been unable to use in
its entirety since it was purchased. For years, we were told by the
agency (FS) that there was a court agreement that did not allow us to.
We continued to request to graze those pastures and were denied in
writing by the FS on each occasion (one-third of the grazing
allotment). Years later the FS gave us the documents surrounding the
agreement. The document did not prohibit grazing but that if grazing
took place then the FS would monitor. Soon thereafter, the FS modified
the permit taking those pastures out of our permit telling us that they
would be addressed in NEPA. Which has been going on for 9 years now and
we calculated that over $1,000,000.00 (one million) has been lost in
gross revenue at this time and that number continues to grow. This is
just another example how limited but productive lands in rural places
like Gila County are being snatched from producing jobs and income by
agencies like the Forest Service. Their first fallback is to take the
land out of production until, at some unknown date and time, it may be
returned instead of keeping it in production until they find time to
complete their needed paperwork.
I would like to point out that when using a slang term ``midnight
agreement'' to reference a court proceeding and not an official docket
name or number, that it was easily identified to which one I was
speaking. Once again, my understanding is that overnight, without the
meeting of all the parties listed in the claim, the FS met and made an
agreement by themselves that proved to be harmful to permittees for the
betterment of not the land or definitely any species or people living
in these areas, but for themselves.
One of the items that needs to be corrected and has gone astray is
the people's ability to defend themselves against government actions
and reports. The FS has now changed their internal policy that now does
not allow permittees the ability to appeal their Annual Operating
Instructions issued by the FS. America is based off a system that
allows ``due process'' and through the rulemaking process the FS took
that from permittees. So here, where salt blocks are again debated, I
will explain as to show the simplicity, but yet the ability, of one
rogue staff member within the FS and what they are able to accomplish
with the Federal FS shield protecting them.
A range staff from Wyoming came to Arizona with no real-time
experience in the Southwest grazing system of year round grazing and
found a salt block that a deer hunter had placed by a spring and their
hunting stand. Since we, the ranchers, were the only ``permitted''
activity, it was the FS's responsibility to write me a letter
concerning the violation and how it was our responsibility because we
had the grazing permit. Another well-documented example is that my wife
and children went to a corral and fed two flakes of hay to two cows and
a baby calf we were holding in a corral to be moved. For the next 45
minutes, they picked up trash left by weekenders and recreationists
while two forest service employees sat in a pick up 100 yards away
watching them. Not once did they approach them to help or ask what was
going on. We later got a letter for our file for ``feeding on the
forest.'' I would like to point out that, if we were recreationists
with horses pleasure riding and were feeding our horses, that would
have been ok. One last example: I received a letter for our file that
we had painted a cabin that is one of 13 on FS lands that we use with
our permit on the mountain because we failed to paint it an approved FS
government color (we had done maintenance on it over the summer). After
receiving the letter, I took pictures and paint swatches into the
office and met with FS officials. It was then I learned after showing
pictures of the color of the other cabins, the color we had used to be
similar, it was then that I learned that in fact there were
``approved'' colors to be in compliance with. However, the letter
remains in our file and, like normal, no apology or rule appeal avenue
to have the letter removed. All examples of how the FS operates outside
of what I believe are Congress' intent.
The FS has not coordinating with Gila County government. On 8/24/
2011 during a FS meeting, our county supervisor stated (because the
agency would not allow us to review the document) ``the coordination
process it allows us that opportunity to review that material'' and the
forest official replied, ``We don't have coordination status with
counties.'' Since that meeting, the FS has scrapped years' worth of
work and just started over. Meanwhile, we are in limbo and have wasted
hundreds of man hours going to meetings and reviewing documents that
now has been for naught.
Lastly I have spent hundreds of thousands of dollars and cost
shared with the Federal Government to improve the land and enhance
conservations. Once the projects were completed and inspected, the FS,
no matter that they had paid nothing, claim to own the property and
improvements once completed. The Bureau of Land Management rule making
says that the agency would own 50 percent and the permittee would own
50 percent. I wish that was the case on FS allotments as well.
Once again, thank you for providing me with the opportunity to
appear as a witness and I hope this supplement to my testimony proves
valuable to the Subcommittee.
Best Regards,
David Cook
______
Mr. Labrador. Thank you.
The Chair now recognizes Ms. Pinto for her testimony.
STATEMENT OF KENDRA PINTO, COUNSELOR CHAPTER HOUSE MEMBER,
NAGEEZI, NEW MEXICO
Ms. Pinto. [Speaking native language.] Thank you, Mr.
Chairman and Ranking Member, for the opportunity to testify
before you today. My name is Kendra Pinto, and I am from Twin
Pines, located in the Eastern Agency of the Navajo Nation in
northern New Mexico. I live near Chaco Canyon in the San Juan
Basin, often called the ``American Cradle of Civilization,''
where the Anasazi flourished between 900 A.D. and 1300 A.D.
The laws of the Navajo Nation and the United States of
America should protect people, our lands, and our health. I am
here today to tell you how important Federal regulations are to
my community.
I was born in Shiprock, New Mexico, and raised in Twin
Pines. I have always known New Mexico as my home, so it is
appropriate that I share with you how I feel about the land.
Growing up, there was no such thing as boundaries. We were free
to roam the valleys and mountains, so long as we did not cause
harm. The scenery is breathtaking and vast. On particular peaks
in the area, I can spot Colorado, Utah, and Arizona, all in one
quick sweep.
My family did not just come upon Chaco, nor are we new to
the land. My grandma was born less than half-a-mile away from
where she currently resides. She is 92 years old.
The oil and gas extraction in my community has caused a
host of problems, from air pollution to truck traffic damaging
our roads. The light pollution is increasing near and around
Chaco Cultural National Historic Park with each well site that
is created.
In July of 2016, there was a massive explosion in a nearby
community. The WPX well site fire in Nageezi, New Mexico,
forced the evacuation of 55 residents. Some have yet to return.
Thirty-six storage units holding oil and fracking fluid caught
fire and exploded. The closest home sits less than 350 feet
away. I can still hear those explosions, each sounding like a
pop as the fire grew and became visible over the mountains. A
young boy near the explosion site continues to be traumatized
by the experience today.
As is clear from the air testing we have done, and the
latest scientific data clearly shows, oil and gas air pollution
impacts people's health. Results from the air monitoring near
Lybrook Elementary School revealed something rather alarming:
elevated hydrogen sulfide levels at 7.6 micrograms per cubic
meter. Hydrogen sulfide is commonly emitted by natural gas
wells. Long-term exposure is associated with incidents of
respiratory infections, irritation of the eyes and nose,
coughing, breathlessness, nausea, headache, and mental
symptoms, including depression.
Federal standards like the BLM methane waste rule can
lessen these harms and help protect our air and health. By
capturing methane, oil and gas companies can also capture other
air pollutants, reducing the amount of toxic volatile organic
compounds that currently vent, flare, or leak into our air.
This rule has a side benefit of preserving the resource
operator's wish to sell to market, while protecting royalty
revenues owed to taxpayers. Without a rule to curb methane
emissions on public lands, we allow the industry to burn our
money and our health away.
I hope the explosion that devastated my community and the
air pollution that is currently harming us illustrate why we
must protect our sacred lands, water, and air resources.
American and Navajo law must reinforce this support, not
undermine it.
Accordingly, Congress and the BLM should strengthen Federal
protections like the BLM's fracking and methane rules. There is
nothing wrong with demanding clean air and clean water.
Everyone here needs those two things.
Thank you for your time.
[The prepared statement of Ms. Pinto follows:]
Prepared Statement of Kendra Pinto, Counselor Chapter House Member,
Navajo Nation
Mr. Chairman and Ranking Member, thank you for the opportunity to
testify before you.
My name is Kendra Pinto, and I'm from Counselor Chapter, Navajo
Nation, in northern New Mexico. I live near Chaco Canyon, in the San
Juan Basin, often called the American Cradle of Civilization, where the
Anasazi flourished between 900 A.D. and 1300 A.D.
The hub of the Chacoan society is a series of well-designed
villages housing some 6,000 people who navigated the countryside using
perfectly straight roadways etched into the landscape. The descendants
of the Chaco culture are some of the modern Southwest tribal nations.
The Chaco ruins are sacred to the Navajo, Hopi and Pueblo peoples.
Today, the Greater Chaco Canyon area spans over 30,000 square miles
and remains a sacred source of our cultural heritage. The laws of the
Navajo Nation and the United States of America should offer protections
for my people and our lands, not take them away.
federal protections for greater chaco
President Theodore Roosevelt first designated 20,629 acres of Chaco
Canyon as a National Monument in 1907. Chaco's boundaries were later
expanded in the 1920s.
During the 1950s and 1960s, energy and mineral development in the
San Juan Basin lead to additional archeological discoveries. In
response, Congress in 1980 added an additional 33 sites totaling
approximately 8,800 acres.
These ``Chaco Culture Archeological Protection Sites'' are managed
primarily by the Navajo Nation, Bureau of Land Management (BLM), and
the Bureau of Indian Affairs (BIA). Today, the National Park Service
(NPS) manages the core area of Chacoan ruins--known as Chaco Culture
National Historic Park (Chaco NHP).
Chaco NHP is also a UNESCO World Heritage Site.
how oil and gas has impacted my community
I was born in Shiprock, NM and raised in Twin Pines, NM. I have
always known New Mexico as my home so it is appropriate that I share
with you how I see this land. Growing up there was no such thing as
boundaries. We were free to roam the valleys and mountains so long as
we did not cause harm. This is what I find difficult to talk about in
an audience such as this. Not all in this room will feel with their
heart the moments I share with you. The moments rooted so deep in
feelings there are no words. The love for the land must be felt. It is
not only my story that should compel you; it can be heard in areas
throughout the country from others who know the importance of life.
I have a tendency to take long hikes. During these hikes there is
no time clock to worry about. It is just nature and me. The scenery is
breathtaking and vast. On particular peaks in the area I can spot
Colorado, Utah, and Arizona all in one quick sweep. Where else can you
do that in one glance? The placement of my family in the Chaco region
is no mistake and we are not new to the land. Living on and with the
land is also something we have not just discovered. There are numerous
plants used for medicinal properties by our people and are currently
being torn down to make way for steel barrels and a vast network of
pipes. The effects of the activity taking place right now in my
community is not only causing physical damage to the land but it is
also causing mental strain to the people.
I have spoken with Elders who tell me of how plants used to grow
here and there but now don't grow at all. The plants they speak of grow
wildly among the landscape and cannot simply be replaced by going to a
convenience store. Among the wildly growing plants of our area are also
beds of gardens. There is a collective concern within our small
communities and it is food and water. Our closest grocery store is
nearly an hour away. Those who do not have running water must haul
their water from either of two water stations made available to
residents. Grocery trips must be planned for the month ahead. This is
one of the many reasons gardens have begun to find themselves
multiplying. But it also must fight like us--fight the gases that
settle on its skin and fight to breathe.
My grandmother was born less than half a mile away from where she
currently resides. She is now 92 years old. I listen to her stories and
try to imagine what life was like in the 1920s and 1930s. I've often
asked my Grandma of the past. She tells me stories of her younger days;
seeing her first automobile when she was 11, hearing of JFK's
assassination on the radio while weaving at the local chapter house. I
always look at my grandmother in amazement. Her stories are here. Here
in this valley next to a World Heritage Site, so hidden that the homes
of people in the Chaco area were not marked on the BLM State map until
for the first time in 2015.
In July of 2016, there was a massive explosion in a nearby
community. The WPX well site fire in Nageezi, NM started just after 10
p.m. and forced the evacuation of 55 residents. Thirty-six storage
units, holding oil and fracking fluid, caught fire and exploded. I can
still hear those explosions, each sounding like a pop as the fire grew
and became visible over the mountain. I was not on site for the initial
explosion so I cannot imagine what it was like. The families who live
in the area do not have that luxury. As the fire grew and continued to
burn that night, residents were parked along Highway 550 watching the
fire because they did not have a place to go. There was no public
evacuation or emergency plan. How can this be when well sites are
located next to houses, one in particular less than 350 ft. away from
the explosion site. The family living closest to the explosion have not
returned. The house sits empty. I do not know of any plans of their
return, should they decide to move back in. One of the young children
located near the explosion site still has moments of stress when he
hears loud, banging noises. How does this not count as a negative
impact of fracking? How is this not being talked about more, of locals
risking their lives by simply being near a pipeline or well site?
Locals who have been here for decades, some even before oil pumps were
tragically peppered in the Greater Chaco region.
I hear stories of relatives buried within the lands. Unmarked
graves scattered throughout the region but somehow unimportant to
outside industries who are there for one purpose only. How are the
Indigenous people of this land, Our Land, still being treated with
little or no respect and made to look like stereotypical, savage
``Indians'' when all we talk of is for fair and just treatment of
Mother Earth, The Earth which provides for us. We have begun to lose
sight of who we are. We believe we are immortal. We believe there will
be no repercussions to our actions. We believe we live in a world
hosting unlimited resources and extraction is the best possible way to
improve life. That's not sustainability, it is dependability.
The area where I live is commonly known as ``The Checkerboard
Area'' because placed on a map, the land is fragmented between Federal,
state, private, allotment, and tribal trust lands. It is because of
this checkerboard issue that well sites can be relatively close to
houses. There are no visible boundaries among this checkerboard area.
There is no distinct border to separate BLM public land and allotment
lands. But you would not know this if you're not from the area. Looking
at a map does not show you the people who have lived there for
generations. Looking at a map falsely projects the idea that a fence
surrounds the different sections of land.
air pollution in my community
The air monitoring I have done showed something rather alarming. At
the well site located across the highway from Lybrook Elementary School
showed elevated levels of hydrogen sulfide. Disturbingly close to
children yet continues to operate as if nothing is wrong.
Hydrogen sulfide was detected in the sample collected along Highway
550 at mile marker 100 north of the Lybrook School at a level of 7.6
g/m3.
Hydrogen sulfide is commonly emitted by natural gas wells because
raw natural gas is commonly contaminated by hydrogen sulfide.
Hydrogen sulfide is a gas that possesses a potently offensive odor
of rotten eggs. Long-term exposure to hydrogen sulfide is associated
with an elevated incidence of respiratory infections, irritation of the
eye and nose, cough, breathlessness, nausea, headache, and mental
symptoms, including depression. The California OEHHA has established a
chronic reference exposure level for hydrogen sulfide of 10 g/m3 (for
preventing effects on the respiratory system) and an acute reference
exposure level for hydrogen sulfide of 42 g/m3 (for preventing
headache, nausea, and physiological responses to odors). The U.S. EPA
reference concentration for hydrogen sulfide is 2 g/m3 (for preventing
nasal lesions of the olfactory mucosa).
The level of hydrogen sulfide detected in the sample collected
north of the Lybrook School exceeds the U.S. EPA reference
concentration for hydrogen sulfide, but is below the California OEHHA
has established a chronic reference exposure level for hydrogen
sulfide. If hydrogen sulfide levels of 7.6 g/m3 north of Lybrook
school generally prevail, then these levels may pose some risk to human
health.
blm methane waste rule
As is clear from the air testing we've done, and the latest
scientific data, that oil and gas air pollution impacts people's
health. The toxic gasses from oil wells and processing facilities waft
about the air we breathe. Much of this pollution is invisible, but we
know from optical gas imaging cameras that help us see the pollution
firsthand that it is there.
Federal standards like the BLM methane waste rule can lessen the
harm to people living with oil and gas facilities in their communities.
Nationally, there are more than 750,000 summertime asthma attacks in
children under the age of 18 due to ozone smog resulting from oil and
gas pollution, including over 12,000 in New Mexico.
Each summer, there are more than 2,000 asthma-related emergency
room visits and over 600 respiratory related hospital admissions
nationally due to ozone smog resulting from oil and gas pollution.
Children miss 500,000 days of school nationally each year due to ozone
smog resulting from oil and gas pollution.
The BLM's methane waste reduction rule protects our air and health.
By capturing methane, oil and gas companies also capture other air
pollutants, reducing the amount of toxic volatile organic compounds
that currently vent, flare, or leak into our air.
These types of Federal protections not only protect our health,
they also preserve the resource operators wish to sell to market and
protects royalty revenues that are owed to taxpayers.
Without a rule to curb methane emissions on public lands, we allow
the industry to burn our money--and our health--away.
blm hydraulic fracturing rule
Regulation matters because water is life. The BLM's hydraulic
fracturing rule protects our dwindling water resources and reduces the
chances of groundwater contamination. The rule improves standards for
well casings, mechanical integrity, waste disposal, and chemical
disclosure.
Importantly, it creates a minimum standard, a basic level of
protection for our tribal lands, the water flowing through them, and
the people and wildlife who drink it. Rolling back this rule leaves my
community more vulnerable.
federal land policy management act (flpma) blm resource management plan
The Federal Land Policy Management Act (FLPMA) requires the
Government to manage our lands ``in a manner that will protect the
quality of scientific, scenic, historical, ecological, environmental,
air and atmospheric, water resource, and archeological values.''
Yet, BLM's current Resource Management Plan (RMP) for my region
predates the arrival of hydraulic fracturing to the San Juan Basin by
about 5 years. Nevertheless, BLM has extensively leased lands for oil
and gas drilling around the Chaco NHP, and operators have hydraulically
fractured hundreds of new wells.
An updated RMP should balance energy development with other uses of
our lands. The RMP should respect tribal wishes and preserve dozens of
our Chaco Great House ruins including our vast network of ancient
sacred roads.
conclusion
I hope the explosions that devastated my community illustrate why
we must protect our sacred lands, water, and air resources. American
and Navajo law must reinforce this support, not undermine it.
Accordingly, Congress and the BLM should strengthen Federal protections
like the BLM's fracking and methane rules.
There is nothing wrong with demanding clean air and clean water.
Everyone here needs those two things. It should not be the deciding
factor on how a human will treat another human
Thank you for your time.
______
Mr. Labrador. Thank you.
The Chair now recognizes Ms. Maloy for her testimony.
STATEMENT OF CELESTE MALOY, DEPUTY ATTORNEY, WASHINGTON COUNTY,
UTAH
Ms. Maloy. Chairman Labrador, Ranking Member McEachin,
Chairman Bishop, and members of the Subcommittee, thank you for
inviting me to testify today. My name is Celeste Maloy; I am a
deputy county attorney for Washington County, Utah. My primary
focus in the county attorney's office is public lands law and
policy.
I regularly interact with Federal agencies on the
challenges that face a rapidly growing county, where half of
our land is managed by the Department of the Interior, and only
16 percent is privately owned. My experience in interacting
with land management agencies, particularly the BLM, is that
administrative processes overshadow the agency mission given by
Congress.
We routinely see Federal agency employees treat their
manuals and handbooks as if they are the ultimate law. When
those manuals don't align with directly relevant statutory
guidance, the manuals still prevail. I will focus on this
problem with the Wilderness Act and FLPMA.
First, the Wilderness Act. The Omnibus Public Lands
Management Act of 2009 contains a section we refer to as the
Washington County Lands Bill. It was the result of years of
stakeholder negotiation and compromise. One of the county's
motivations for participating was to settle the wilderness
question. As a result of Wilderness Act inventories, Utah is
full of wilderness study areas, or WSAs, that are managed for
non-impairment of wilderness characteristics, but have never
been declared wilderness by Congress.
For the county, the lands bill was a way to end that
uncertainty. In exchange for roughly a quarter of a million
acres of declared wilderness within the county, we got an end
to the endless inventory process, and a congressional release
of WSAs. We were surprised and upset when the new resource
management plans (RMPs) still required wilderness inventory.
Our local BLM office insisted that they were following their
manuals.
I did some research, and I was even more surprised to find
that BLM's wilderness manual does say that when Congress
releases land from wilderness study, the BLM will take into
serious consideration the congressional action. When Congress
speaks, agencies should act, not consider.
Now I will address FLPMA. In the same Washington County
Lands bill, Congress clearly instructed the Secretary of the
Interior to consider alternatives for a planned roadway that
the county and local municipalities have known for years would
be necessary to meet future transportation needs. That road was
a major part of the balancing quid pro quo that led us to
support the bill.
After the bill was enacted, however, the BLM's draft RMP
eliminated the possibility of any road with an exclusion area,
which prohibits new rights-of-way. Knowing that the travel
management plan could not contradict the RMP, the county went
to BLM to correct the error. Local BLM employees told us that
Congress screwed up in writing the bill. The statute says to
consider route alternatives in the travel management plan, but
that isn't how BLM considers new routes, and they couldn't
allow a road in that area.
Even with directly relevant statutory language, the agency
used their administrative process to ignore the intent of the
law. I am still amazed that an agency which derives its
authority from congressional delegation dares to use
administrative manuals to refuse to faithfully implement the
laws Congress passes.
Additionally, FLPMA and other statutes require land
management agencies to cooperate with local governments and
consider local land use plans in developing RMPs. This
statutory language is good, but it is meaningless if it does
not create actual partnership.
Our experience has been that the BLM planners hold very few
public meetings, where information is given but not exchanged.
We are briefed, but not invited to participate. Although we are
supposed to be cooperating agencies, local governments can
comment after the alternatives are developed. Instead of
cooperatively developing alternatives to be evaluated, we get
canned language in the plans about the requirement to
coordinate--no discussion of local plans and no explanation of
inconsistencies with locally developed plans.
Last, the multiple use mandate from FLPMA is being eclipsed
by the exceptions. FLPMA says that lands are to be managed for
multiple use, unless otherwise specified by law. Despite that
language, WSAs, lands with wilderness characteristics, mineral
withdrawals, exclusion areas, visual resource management areas,
buffers around rock outcrops, and other restrictions on
multiple-use activities are more common than multiple-use
management.
The elimination of uses seems to stem from a philosophy
that all human impacts are negative impacts. Congress, by
including multiple-use management in the BLM's Organic Act,
clearly did not espouse the idea that humans should be forced
off of public land. Multiple use was intended to be the rule,
not the exception.
Between the broadening of statutory authority through
administrative processes, and the deference Federal courts give
to agency decision making, local governments have few effective
options for eliminating agency over-reach. We cannot vote them
out of office. We cannot fire them.
I am here because we need Congress to stop the expansion of
agency authority.
[The prepared statement of Ms. Maloy follows:]
Prepared Statement of Celeste Maloy, Deputy County Attorney, Washington
County, Utah
Chairman Labrador, Ranking Member McEachin and members of the
Subcommittee--thank you for inviting me to testify today. My name is
Celeste Maloy. I am a deputy county attorney for Washington County,
Utah. My primary focus in the county attorney's office is public lands
law and policy. I regularly interact with Federal agencies on the
challenges that face a rapidly growing county where half of our land is
managed by the Department of the Interior and only 16 percent is
privately owned.
My experience in interacting with land management agencies,
particularly the Bureau of Land Management, is that administrative
processes overshadow the agency mission given by Congress. We routinely
see Federal agency employees treat their manuals and handbooks as if
they are the ultimate law. When those manuals don't align with directly
relevant statutory guidance, the manuals still prevail. I'll focus on
this problem with the Wilderness Act and the Federal Lands Policy and
Management Act, or FLPMA.
First the Wilderness Act.
The Omnibus Public Lands Management Act of 2009 contains a section
we refer to as the Washington County Lands Bill.\1\ It was the result
of years of stakeholder negotiation and compromise. One of the county's
motivations for participating was to settle the wilderness question. As
a result of Wilderness Act inventories, Utah is full of wilderness
study areas, or WSAs, that are managed for non-impairment of wilderness
characteristics, but have never been declared wilderness by Congress.
For the county, the lands bill was a way to end that uncertainty. In
exchange for roughly a quarter of a million acres of declared
wilderness within the county,\2\ we got an end to the endless inventory
process and a congressional release of WSAs.
---------------------------------------------------------------------------
\1\ Public Law 111-11, Subtitle O, Washington County, Utah.
\2\ The exact total is 256,337 acres of wilderness within
Washington County.
---------------------------------------------------------------------------
We were surprised and upset when the new resource management plans
(RMPs) still required inventory for wilderness. Our local BLM office
insisted that they were following their manuals. I did some research
and was even more surprised to find that BLM's wilderness manual says
that when Congress releases land from wilderness study, the BLM will
``take into serious consideration the congressional action.'' \3\ When
Congress speaks, the agencies should act accordingly . . . not just
take it into serious consideration.
---------------------------------------------------------------------------
\3\ Manual 6320 Considering Lands With Wilderness Characteristics
in the BLM Land Use Planning Process(A)(1)(c).
---------------------------------------------------------------------------
Now I'll address FLPMA.
In the same Washington County Lands bill, Congress clearly
instructed the Secretary of Interior to consider alternatives for a
planned roadway that the county and local municipalities have known for
years would be necessary to meet future transportation needs. That road
was a major part of the ``balancing'' quid pro quo that led us to
support the bill.
After the bill was enacted however, the BLM's draft RMP \4\
eliminated the possibility of any road with an ``exclusion area,''
which prohibits new rights-of-way. Knowing that the travel management
plan couldn't contradict the RMP, the county went to BLM to correct the
error. Local BLM employees told us that ``Congress screwed up'' \5\ in
writing the bill. The statute says to consider route alternatives in
the travel management plan, but that isn't how BLM does things, and
they couldn't allow a road in that area. Even with directly relevant
statutory language, the agency used their administrative processes to
ignore the intent of the law. I am still amazed that an agency, which
derives its authority from congressional delegation, dares to use
administrative manuals to refuse to faithfully implement the laws
Congress passes.
---------------------------------------------------------------------------
\4\ This reference is to the draft RMP. In the face of extreme
political pressure, the final decision created an avoidance area
(meaning roads should be avoided, but they aren't absolutely
prohibited) where the road is planned through BLM managed lands.
Layered on the avoidance area are several obstacles that still make a
road all but impossible. The first layer is a plan to acquire private
lands that are also part of the roadway and classifying them as
exclusion areas) and prohibiting any take of desert tortoises (which
includes picking tortoises up and moving them) or modification of
tortoise habitat. The county has an incidental take permit and could
mitigate for tortoise take, but the plan forbids rights of way that
would result in any take.
\5\ The phrase ``Congress screwed up'' was used several times, but
in one meeting with state, city, county, and delegation staffers, both
the NCA manager and the District Manager for BLM said they could not
consider a road because Congress screwed up when they drafted the
language.
---------------------------------------------------------------------------
Additionally, FLPMA and other statutes \6\ require land management
agencies to cooperate with local governments and consider local land
use plans in developing RMPs. The statutory language is good, but it is
meaningless if it doesn't create actual partnership. Our experience has
been that the BLM planners hold a very few public meetings where
information is given, but not exchanged. We are briefed, but not
invited to participate. Although we are supposed to be ``cooperating
agencies,'' local governments can comment after the alternatives are
developed. Instead of cooperatively developing alternatives to be
evaluated, we get canned language in the plans about the requirement to
coordinate--no discussion of the local plans and no explanation of
inconsistencies with locally developed plans.\7\
---------------------------------------------------------------------------
\6\ NEPA requires that EISs describe inconsistencies with local
plans and how it will reconcile differences. FLPMA requires BLM to stay
apprised of local plans, consider plans that are germane, resolve
inconsistencies to the extent practicable (defined as legal), and
provide meaningful involvement for local governments. NFMA requires
coordination with land planning efforts of state and local governments.
\7\ The Draft RMPs that came out in 2015 had this canned language:
``FLPMA Section 202(b)(9) directs that the BLM provide for involvement
of state and local government officials in the land use planning and
consider the provisions of tribal, state, and local plans that are
relevant to the planning areas. BLM should attempt to resolve
inconsistencies between Federal and non-Federal government plans, in
the development of plans for public lands, to the extent those plans
are consistent with the purposes, policies, and programs of the Federal
laws and regulations applicable to public lands and the purposes of
FLPMA.'' Then two county plans and two state park plans are listed
without any discussion at all about how this draft plan was consistent
with them. (Draft RMPs p. 899) The language about consistency is there,
but no attempt was made to either explain how local plans were
implemented or in what way local plans were inconsistent with Federal
law. After intense political backlash to the draft plans, the final
record of decision contains the same language quoted above, but with
some additional language about coordination. ``As noted in Section 3.2,
the cooperating Agencies (Washington County, Mohave County (AZ), and
the State of Utah) were provided opportunities to provide input
throughout the planning process. Consistency with agency and local and
state government plans was primarily accomplished through
communications and cooperative efforts (meetings and communications)
between the BLM Planning Team and these Cooperating Agencies. The BLM
is aware that there are specific county and state plan decisions
relevant to aspects of public land management that are discrete from
and independent of Federal law. FLPMA requires that the development of
an RMP for public lands be coordinated and consistent with county plans
to the extent possible by law and that inconsistencies between Federal
and non-Federal Government plans be resolved to the extent practical
(FLPMA, Title II, Section 202(c)(9)). However, the BLM is bound by
Federal law and, as a consequence, there will be an inconsistency that
cannot be resolved or reconciled where state and local plans conflict
with Federal law. Thus while county and Federal planning processes
under FLPMA are required to be as integrated and as consistent as
practical, the Federal agency planning process is not bound by or
subject to county plans, planning processes, or planning stipulations.
In addition, the relevant goals, objectives, or policies of a county
are often equivalent to an activity or implementation-level decision
and not an RMP-level decision. The very specific county goals would be
addressed in any subsequent BLM activity or implementation-level
decision.'' In short, they are trying to use the exception to swallow
the rule. Local plans are being dismissed as too specific for a plan or
somehow, vaguely not consistent with Federal law. The language in FLPMA
requiring consistency has been rendered all but meaningless by agency
interpretation.
---------------------------------------------------------------------------
Last, the multiple use mandate from FLPMA is being eclipsed by the
exceptions. FLPMA says that lands are to be managed for multiple use
unless otherwise specified by law. Despite that language, WSAs, lands
with wilderness characteristics, mineral withdrawals, exclusion areas,
visual resource management areas, buffers around rock outcrops, and
other restrictions on multiple use activities are more common than
multiple use management. The elimination of uses seems to stem from a
philosophy that all human impacts are negative impacts. Congress, by
including multiple use management in the BLM's organic act, clearly did
not espouse the idea that humans should be forced off of public land.
Multiple use was intended to be the rule, not the exception.
Between the broadening of statutory authority through
administrative processes and the deference Federal courts give to
agency decision making, local governments have few effective options
for limiting agency over-reach. We cannot vote them out of office. We
cannot fire them. I am here because we need Congress to stop the
expansion of agency authority.
______
Questions Submitted for the Record by Rep. Bishop to Celeste Maloy,
Deputy Attorney, Washington County, Utah
Question 1. Ranking Member McEachin entered into the hearing record
an opinion that was issued by the Ninth Circuit Court of Appeals in the
case, Oregon Natural Desert Association v. Bureau of Land Management
which was decided on July 14, 2008. Are BLM's actions in this case
distinguishable from the actions it has taken in Washington County, and
if so, how?
Answer. Washington County's situation is distinguishable from the
Oregon case, ONDA v. BLM, because the area in Oregon that was being
planned for didn't have congressional release language for wilderness
planning. Congress, in the 2009 lands bill, said that: ``Congress finds
that for the purposes of Section 603 of the Federal Lands Policy and
Management Act of 1976 (43 U.S.C. 1782), the public land in the County
administered by the Bureau of Land Management has been adequately
studied for wilderness designation.'' OPLMA, Subtitle O, Sec. 1972(c).
By contrast, in the ONDA case, the Ninth Circuit court found that
the National Environmental Policy Act required BLM to at least consider
the wilderness concerns posed by the ONDA group. BLM had argued that
because of a lawsuit settlement over continuing inventory, they were no
longer required to consider wilderness characteristics in land use
planning. The court rejected that argument partly because of legal
reasoning about whether the Attorney General had the authority to enter
into the settlement.
In Washington County, Congress released land that was not
designated as wilderness form further wilderness study. BLM has already
studied the wilderness characteristics of the land within the county,
Congress has determined which areas to designate, and Congress has
declared that the remaining land has been adequately studied for
wilderness characteristics. Once Congress releases land from wilderness
study, an administrative agency does not have the authority to act
contrary to that release.
ONDA v. BLM did not address a congressional release like the one in
Washington County's lands bill. ONDA applies only to land use planning
when Congress has not made wilderness decisions. Additionally, ONDA is
not binding precedent outside of the Ninth Circuit; Utah is in the
Tenth Circuit. For these reasons, the holding in ONDA v. BLM has no
bearing on the BLMs duties in writing land use plans in Washington
County.
Question 2. In your written testimony you noted that in the Omnibus
Public Lands Management Act of 2009, ``[c]ongress clearly instructed
the Secretary of the Interior to consider alternatives for a planned
road that the county and local municipalities have known for years
would be necessary to meet future transportation needs.'' Could you
provide your basis for making this assertion?
Answer. My assertion that Congress was clear in instructing the
Secretary to consider the road is based on the plain language of the
statute and the press release from Senator Bob Bennett, who sponsored
the bill.
OPLMA, in Section 1977, which deals with travel management planning
says: ``In developing the travel management plan, the Secretary shall
in consultation with appropriate Federal agencies, state, tribal, and
local governmental entities (including the County and St. George City,
Utah), and the public, identify one or more alternatives for the
northern transportation route in the county.'' The language is not
ambiguous. Congress instructs the secretary to identify one of more
alternatives for the route.
Then-Senator Bob Bennett, who sponsored the bill, in his press
release when OPLMA passed the senate said that ``as part of the
comprehensive plan, BLM will . . . identify alternatives for a northern
transportation route in Washington County.'' Therefore, I feel
comfortable asserting that both the statutory language and the intent
of Congress clearly called for the Secretary of the Interior to
identify alternatives for a northern transportation route in the
county.
______
Mr. Labrador. Thank you. I thank all the witnesses for
their testimony. And I would like to remind the Members that
Committee Rule 3(d) imposes a 5-minute limit on questions.
To begin questioning, I recognize myself for 5 minutes.
Representative Cook, it is my understanding that
environmental groups routinely use litigation during the
resource management planning process as a means to prevent the
issuance of grazing permits, or permit renewals.
For the record, can you tell us what land use planning and
environmental groups are most actively opposed to ranching
operations in your community?
Mr. Cook. Thank you for the question, Mr. Chairman, I would
be glad to. I could give you some personal accountability in
this. Western Watersheds, Center for Biological Diversity,
Forest Guardians, those are some of the organizations that do
this.
Personally, how this has affected us is that we have a
72,000-acre Forest Service allotment that is ran with 1,000
head of cattle permitted off of 22 acres. We were unable to
use, and still are unable to use, one-third of that ranch
because of a lawsuit filed by one of those organizations, in
which the cattle industry sided with the U.S. Forest Service.
And the next day, when we showed up in court, the Forest
Service, the agency, was sitting over there with the
plaintiffs, and we didn't understand it. We called that the
midnight agreement.
For years, we were kept off of one-third of our allotment
because the Forest Service said that was the agreement that was
made in court. After years of asking for that agreement,
finally receiving it, what we found out was not at all was that
the agreement, there was just some monitoring to take place.
Since then, the Forest Service has modified our permit and has
removed those pastures, one-third of 72,000 acres of grazing,
from our permit.
Mr. Labrador. So, upon what basis do they claim to oppose
such use of public lands?
Mr. Cook. Well, they claim that the basis is to protect
species when, in fact, that, to me, is the farthest thing from
the truth. Their claim is that they are benefiting the
threatened and endangered species by using acts like the
Endangered Species Act.
Mr. Labrador. Ms. Maloy, would you like to offer your
perspective on how litigation is used to influence land
management decisions, or perhaps provide insight as to how
outside groups have abused the Equal Access to Justice Act?
Ms. Maloy. Sure. In my experience dealing with Federal
agencies, it feels like litigation and the fear of litigation
seem to influence decision making more than the statutes that
enable Federal agencies to have authority to act in the first
place.
In fact, with the lands bill that I mentioned in my
testimony, the BLM got sued and a Federal judge set a deadline
for the RMPs to come out, and that was followed. But the
statute had set a deadline for the RMPs to come out 3 years
after the Omnibus Public Lands Management Act, and they blew
right past that deadline by 3 years.
Mr. Labrador. Thank you, Ms. Maloy. I think we should
change the title of this hearing to a line from your testimony:
``When Congress speaks, agencies should act, not consider.''
That was amazing, to think that we would pass something as
legislation, and that the agency and their manual thinks that
they can just consider the acts of Congress. I think that is
something that needs to change, and I thank you for your
testimony.
Mr. Cook, states like Idaho and Arizona were settled
because the Federal Government wanted people to use the land to
secure our food supply and boost our economy through resource
development and the founding of towns and communities
throughout the western United States. However, now, as you and
our other witnesses have testified, they are actively
discouraged from using the land upon which the communities in
our Nation rely.
We are not doing the multiple use that--Congress intended
all these laws to allow multiple use on these lands, and the
agencies continue to put resources and other issues ahead of
the people that live in those communities. Can you explain a
bit about how your family and your community have depended upon
the land throughout the years, and how their failure to ensure
multiple use in recent decades has impacted your community?
Mr. Cook. Absolutely, Mr. Chairman. Thank you for the
question.
For instance, in grazing, the agency, the Forest Service,
will try to push down your allotted numbers in your community.
So, if you remember, 97 percent of the land in our entire
county is Federal, and so we rely on 1.5 percent of private
land, and the mining companies own the other 1.5 percent--so
our tax base is limited. Twenty-five percent of our grazing
fees goes to our local school districts, so by not allowing us
to fully stock our allotments properly, we are taking money
away from our local school districts which would receive the
benefit from that. That is just a small example of how we are
being impacted in western states.
Mr. Labrador. Thank you. You mentioned that your grazing
permit has been mired in the bureaucracy for 15 years. What
excuse has the Federal Government given you for dragging out
the standard for that long?
Mr. Cook. Mr. Chairman, the excuse that we constantly get
is they don't have time and resources, and then they are gone
for fires, and things like that. But in my particular
situation, these agency staff have time to go out and GPS salt
blocks in pastures that are thousands of acres, and come back
and do work like that, but they don't have the time to do the
actual work that is required of them, such as their NEPA and
their documentation work.
Mr. Labrador. Thank you. I now recognize the Ranking
Member, Mr. McEachin.
Mr. McEachin. Thank you, Mr. Chairman.
Ms. Pinto, in your testimony, you mentioned you found
elevated levels of hydrogen sulfide near Lybrook Elementary
School. Hydrogen sulfide can occur with methane. Can you talk a
little bit about the health effects of exposure to hydrogen
sulfide at 7.6 milligrams per cubic meter?
Ms. Pinto. Thank you for that question. Well, with hydrogen
sulfide, I think what we should be talking about are the
effects on health, and it is commonly respiratory infections
that happen--irritations of the eyes and nose, coughing, and
breathlessness. This is--short of breath is not fun, nausea and
headache--these are symptoms that are serious because they
affect you, personally.
Mr. McEachin. Thank you. When I look at the issues that
come up in this community, like the methane rule, some seem
like such common-sense solutions to me that I wonder why we are
arguing about them. And I wonder how Americans outside of the
DC bubble feel about them, especially those that identify as
being with the other party.
Ms. Pinto, I want to ask you about some polls that seem to
support this notion that my colleagues on the other side of the
aisle are not in step with this country, including their own
supporters.
In January of this year, Colorado College published their
seventh annual survey of voters across seven western states.
The poll found that in your home state of New Mexico, 74
percent of respondents support continuing to require oil and
gas producers to use equipment to prevent methane leaks.
Surprisingly, an even higher percentage of New Mexican
Republican voters support continuing to prevent methane levels,
84 percent--the Democrats, which are at 74 percent, as we saw
when the Republican Senate blocked the repeal of the BLM
methane rule preventing methane leaks from oil and gas seemed
to have bipartisan support.
Can you share with us why you think this is?
Ms. Pinto. Yes, thank you. Well, I believe it is because of
the idea that it is a win-win situation. With the catching of
methane, that will produce more--it will be economically
beneficial, and it will protect the communities who are
surrounded by these well sites by protecting their health.
So, it is a win-win for public health, for the environment,
and for taxpayers.
Mr. McEachin. Thank you. I want to talk a little bit about
the Nageezi fire last year. Can you share with us what happened
that night?
Ms. Pinto. Yes. The explosion happened around 10:00 at
night. I received a message from a local community member about
a fire. This was very surprising to me, because a fire, sure,
that is dangerous; but at the time I did not know it was on a
well site.
As I tried to figure out what was happening, and tried not
to panic, the smoke began to enclose my house. I can't explain
to you what this smelled like, because it was not normal, I
guess, would be the word. So, as I am sitting there trying to
figure out what was happening, there was the care and concern
for people who live in the immediate area.
I drove to the site, and as I am driving there with my
father and my sister, the explosions--the fire began to grow
and grow. There was an orange pillar with this black smoke that
was just stretching into the sky, to the east. That is a big
deal. The east is very important to the Navajo people.
How to explain in my words? It was very scary, because
there was no emergency or evacuation plan in place at the time.
The residents who were evacuated were sitting on the side of
the highway for hours, trying to figure out where to go because
they were told to go to Nageezi Chapter. It was locked at the
time because there was no plan. And I believe there still is no
plan, and we have requested that WPX provide a public emergency
and evacuation plan for the local chapter houses.
Mr. McEachin. What has been the effect on the community?
Ms. Pinto. The effect, I think, is mostly fear. There is a
fear that it will happen again. Because before, it was a what-
if scenario. Now it is when, again. There is fear and there
is----
Mr. McEachin. Can you talk a little bit about health
impacts, if any?
Ms. Pinto. Health impacts? Yes. About a week after the
explosion, they were allowed to return to their houses. And one
of the residents, who slept in his house that night, had to go
to ER the next morning because he was having breathing
problems. And he was in the hospital for a little bit. So, this
had immediate effects. And as time continues to go on, we are
going to start to see the health effects of what happened and
what is still sitting there in the community.
Mr. McEachin. I appreciate your testimony. I yield back.
Mr. Labrador. Thank you. I now recognize Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman, and thanks, all of
you, for your time today and your valuable testimony.
Today, a lot has been said already about Federal land
management laws. And before we get too far down the road, I
just wanted to raise an issue that looks to be fairly common
sense, and which seems to me to present a critical issue.
In 2011, an official report by the Government
Accountability Office found that Border Patrol's access to some
Federal lands around the southwestern border has been limited
of certain land management laws, one of them being the
Wilderness Act. And this report followed a previous report with
similar findings identifying that Customs and Border Patrol
agents in charge of 14 of the 17 stations along the southern
border reported that they had been unable to obtain a permit or
permission to even access certain areas in a timely manner on
account of regulatory red tape.
I think this is a major public safety concern, and it seems
clear to me the system is broken and that the Wilderness Act is
in need of reform in this area.
I wanted to ask Representative Cook, are you aware of
anything that has been done or is currently being done to fix
this problem?
Mr. Cook. Thank you, sir. I appreciate the question. I am
not aware of anything that is being done at this time, at this
level. In Arizona, it is a huge problem. We have even lost some
of our ranchers down there because of that, that have been
murdered out in their pasture.
The Pinal County sheriff is a good friend of mine, and he
is constantly telling me about what restrictions are placed
down there on the border, and that you cannot go through there
because of exactly what you said, the wilderness.
We think there should be some kind of a buffer zone on that
national border. Law enforcement should not be hindered or
handicapped or any way handcuffed and not be allowed to protect
the citizens of this country.
Mr. Johnson. I appreciate that. This question is for
Supervisor Dillon.
I would like to read a portion of a written response this
Committee received from the Interior Department following a
2011 hearing. It said, ``The Department has not determined
which tribes on the list of recognized tribes published in the
Federal Register may not have been under Federal jurisdiction
on June 18, 1934. The Department has consistently stated that
it will review tribal fee-to-trust applications on a case-by-
case basis.''
So, the question is are you aware of a tribe ever being
denied an application to put land into trust on the basis that
the Department of the Interior determined that it was not under
Federal jurisdiction in 1934?
Ms. Dillon. I don't have any knowledge of that, sir.
Mr. Johnson. According to a 2016 report done by the Oregon
Office of Economic Analysis, a casino that was recently open on
land placed into trust on behalf of the Cowlitz Tribe will cost
the state $110 million per year in video lottery sales alone.
Could you briefly describe some ways that localities may be
adversely affected by land that is placed into trust by the
Federal Government under Section 5 of the IRA?
Ms. Dillon. I don't know if I have enough time to do that,
but I will make an attempt.
When land is taken into trust in the fee-to-trust process,
the very first thing is it comes off the tax rolls. So, there
is an immediate economic impact there. Tribes are able, because
of their status, to engage in activities without regard to the
impact on other businesses of a similar nature, without regard
to unintended consequences that can occur.
For instance, it is not uncommon to see an increase in
certain kinds of criminal activity when casinos are
established. It is not always the case, but it can happen.
There can be impacts to highway systems, which the local
government has to absorb.
Every single aspect of what happens when you establish any
kind of new business--when it happens in the fee-to-trust
process, all of those impacts should be analyzed, the
mitigation should be established. The Department should have a
process for making sure that the mitigations are enforced. But
that is not the process that we have in place right now.
Mr. Johnson. In your estimation, are the viewpoints of
state and local governments adequately taken into account in
the fee-to-trust application process?
Ms. Dillon. No, sir, they are not.
Mr. Johnson. Why do you think that is?
Ms. Dillon. I think that the Bureau of Indian Affairs, in
its status as a trustee, is intent on taking land into trust
for the benefit of Indians, and there is an inherent conflict
there, if you will, between that trustee status and its
responsibility to Native Americans, and its responsibility to
engage in an oversight process, if you will, to consider the
impacts on local government and other surrounding communities--
can be tribal communities that are nearby--and to balance those
interests and arrive at a process that addresses all the
mitigations.
Mr. Johnson. Thank you very much.
I am out of time, I yield back.
Mr. Labrador. Thank you, and I recognize the gentleman from
Arizona, Mr. Gallego.
Mr. Gallego. Thank you, Mr. Chair.
Mr. Cook, good to see you. Welcome back from Arizona. I
just wanted to correct some things for the record, because what
we say here does go into the record. You said two things, and I
want to make sure that everyone quite understands what actually
happened, being an Arizonan, particularly the murder of Robert
Krentz. That did not happen on Federal land, that is correct.
Mr. Cook. I am not sure exactly what the land ownership
was, I just know it was in one of his pastures.
Mr. Gallego. But it was not on any Federal land. It
happened on his ranch, according to all stories and reports
from the sheriff at that time. It was a horrible situation for
those that are in the farming and cattle community. And for all
Arizonans, it was a bad situation. I just want to make sure
that we clarify that that did not occur on actual Federal land.
Number two, you mentioned the Pinal County sheriff. I would
like to also clarify that the Pinal County sheriff does not
border the actual border. It is 100 miles north of the border.
Is that correct?
Mr. Cook. Yes, sir, that is correct, and they still have
problems with the border, though.
Mr. Gallego. Well, absolutely. And the whole country has
problems with the borders. But just to clarify, he is not an
actual border sheriff. But moving on--thank you, Mr. Cook, on
that.
Moving on, I would like to ask questions in the following
manner. For Kendra, one of the Interior Department's primary
mechanisms for intake of local input on issues within the
jurisdictions, the Resource Advisory Councils, or RACs--these
councils usually consist of 10 to 15 members of relevant
stakeholders, and they have been great at finding consensus in
bringing difficult problems, creating bottom-up solutions, and
giving local voices to the Interior Department.
Secretary Zinke recently made a decision to suspend 30 of
these RACs until at least September. At the beginning of the
month, 22 current and former members of Montana's RACs
submitted a letter to Secretary Zinke, urging him to consider
his actions that could result in less local input and less
public land. I ask unanimous consent to enter that into the
record.
Mr. Labrador. Without objection.
[The information follows:]
Bureau of Land Management
May 11, 2017
Hon. Secretary Ryan Zinke
Department of the Interior
1849 C Street, N.W.
Washington, DC 20240
Dear Secretary Zinke:
We write to you today with grave misgivings concerning recent
actions by the U.S. Department of Interior (DOI) to remove public input
and discussion from public lands management.
As former and current members who served on the Bureau of Land
Management's Western, Central, and Eastern Montana Resource Advisory
Councils (RAC) the unprecedented suspension of these crucial citizen-
advisory groups has caught us by surprise.
Resource Advisory Councils are a time-tested citizen engagement
tool intended to help guide the Bureau of Land Management in the
management of public resources issues. They are an important tool that
helps ensure transparency and local input in many land-use decisions.
RACs are made up of hard-working folks who volunteer their time to help
guide land management decisions at the local level.
By itself, this decision to suspend citizen-input seems ill-advised
at best. However the action is even more suspicious when measured
alongside another high-profile DOI decision to reconsider historic
wildlife habitat and cultural protection accomplished through the
Antiquities Act. With the current suspension in place, the 120-day
review of past national monuments designations, including Montana's
Missouri River Breaks, would be completed without the participation of
local Resource Advisory Councils. The DOI, under your leadership, is
now moving toward less public land and less public input which
threatens the very fabric of the West.
Citizen input via Resource Advisory Councils was crucial to the
designation process that led to the Missouri River Breaks National
Monument in Montana. In 1999, before the Monument was designated, the
Central Montana Resource Advisory Council provided recommendations to
Interior Secretary Bruce Babbitt. These consensus-based recommendations
expressed the sincerest intent of its members to preserve the natural,
wild, and historic values of the Missouri River Breaks. This was
further reinforced by the well-documented participation of thousands of
Americans and Montanans in support of Monument designation.
Secretary Zinke, the robust public-participation that led to the
creation of the Missouri River Breaks Monument runs counter to the
current process the DOI has laid out. It seems your intended purpose is
to use taxpayer money to reopen a public process with one hand while
handicapping public participation with the other. Any findings or
decisions that may arise from this top-down model would lack integrity
and transparency. We fear it could even have the end-result of erasing
the robust public process which led to the designation of the Missouri
River Breaks in 2001.
The Upper Missouri River Breaks National Monument is a special
place and many of us collectively volunteered on a citizen advisory
council to help see its future secured through a transparent and open
public process.
We take it personally when we see the federal government using
taxpayer dollars to both negate the robust public input we provided
while also silencing the valuable citizens advisory councils. We urge
you to reconsider these bold actions that could result in less local
input and less public land.
Best Regards,
Randy Gray (former Central
MT RAC member) Jeff Sheldon (former Central MT
RAC member)
Stan Meyer (former Central
MT RAC member) Rita Harding (current Eastern MT
RAC member)
Tony Bynum (former Central
MT RAC member) Bernie Rose (former Eastern MT
RAC member)
Mary Sexton (former Central
MT RAC member) Cal Cumin (current Eastern MT RAC
member)
Mary Fay (former Central MT
RAC member) Mike Aderhold (former Central MT
RAC member)
Mary Frieze (current
Central MT RAC member) Pat Johnson (former Western MT
RAC member)
Larry Epstein (former
Central MT RAC member) Mary Jones (former Central MT RAC
member)
Hugo Tureck (current
Central MT RAC member) Arlo Skari (former Central MT RAC
member)
Ralph Knapp (current
Central MT RAC member Ron Moody (former Central MT RAC
member)
Bill Cunningham (former
Central MT RAC member) Jean Belangie-Nye (current
Western MT RAC member)
Aart Dolman (former Central
MT RAC member) Margaret Gorski (current Western
MT RAC member)
______
Mr. Gallego. At the same time, Secretary Zinke is meeting
with industry left and right, including a full hour with oil
and gas industry, based on the methane rule just alone. It
makes it abundantly clear who this Administration is trying to
serve.
Ms. Pinto, based on the actions of this Administration so
far, do you think the oil and gas industry needs more help
making their desires known to Secretary Zinke and the
Administration, or do you think they are reaching the corners
of power easily, more so than in the past?
Ms. Pinto. Do I have the light off? I am sorry. Can you
please repeat the last part of that question?
Mr. Gallego. Sure. Ms. Pinto, based on the actions of this
Administration so far, such as neutering many of these RACs,
and giving more time to industry, such as the oil and gas
industry, particularly when it comes to the methane gas rule,
do you think that they have enough access to power or not?
Ms. Pinto. Did you say ``access'' ?
Mr. Gallego. Yes, access.
Ms. Pinto. Do they have more access to power?
Mr. Gallego. Yes. I have a limited amount of time. Could
you answer? Do they have more access, do you believe, than the
normal citizen?
Ms. Pinto. Yes, I do.
Mr. Gallego. Thank you. So, based on your experience,
should the Interior Department get less or more direct input
from locals?
Ms. Pinto. They should get more.
Mr. Gallego. Thank you.
Mr. Cook, in your testimony you say special land
designations on lands that are already federally owned and
subject to management decisions by the Federal Government, like
wilderness designations, only create more burdens for Federal
agencies, and typically serve to erode true multiple use in
favor of a hands-off approach.
Your testimony seems to indicate that you think land being
federally owned, no matter what the state of the land is, means
it is sufficiently protected, and that no more wilderness
designation of Federal land is necessary at all. Presumably,
that would include the protections conferred by the national
monuments. That seemed like a very extreme view, to me, so I
looked it up a little.
A January 2017 poll of western states found that 86 percent
of voters in Arizona supported keeping existing national
monuments in Arizona, including 68 percent of Republican
voters. Do you agree that existing national monuments in
Arizona should be left in place? Existing, not expanding.
Mr. Cook. Thank you very much for the question. I love the
Grand Canyon, I think it is one of the Seven Wonders of the
World. But----
Mr. Gallego. Mr. Cook, I am not asking about the Grand
Canyon, I am asking about all the existing national monuments
in Arizona. Please answer yes or no.
Mr. Cook. I think that they should be reviewed, sir.
Mr. Gallego. They should be reviewed. Good.
Celeste--pardon me, Ms. Maloy--there has been some dispute
about the interpretation of Section 5 of the Indian
Reorganization Act and the occasions of the existing case law
from the lower DC courts. In your testimony, you favor a
temporal--pardon my language today--restriction that would
require a tribe's formal Federal recognition as of 1934 in
order to take the land into trust.
Can you elaborate as to why you think this restriction is
prudent?
Ms. Maloy. I cannot. I think you are mixing my testimony up
with somebody else. I did not address the Indian Reorganization
Act.
Mr. Gallego. I apologize. My notes are off. And actually, I
am out of time, anyway. I yield back my time. Thank you.
Mr. Johnson [presiding]. Thank you. The Chair recognizes
the gentleman from Texas, Mr. Gohmert, for 5 minutes.
Mr. Gohmert. Thank you. I appreciate you all being here. I
certainly sympathize with the problems of an explosion and the
problems that it brought, Ms. Pinto. I come from East Texas,
where, during the Depression, the largest known oil reserve in
the world at that time was discovered. And it lifted hundreds
of thousands of people out of poverty. People flooded into our
area; it gave them jobs, it gave them hope, it gave them the
ability to pay for health care.
And, I think Churchill said that the allies flowed into
victory in their defeat of the Nazis and all the hate that
represented on the East Texas oil field, or oil.
So, I know there are positives and I know there are
negatives, but having personally seen how many people had been
provided jobs, self-respect, the ability to take care of
themselves, the ability to lift themselves out of poverty when
there was really nothing else that seemed to do it, having seen
the poverty return, the joblessness during the Obama
administration in East Texas, people scrambling, trying to find
jobs, but the oil and gas industry being particularly hard hit,
I watched it around our area, people begging for jobs, but the
government regulation, the government pressures making it just
difficult, seeing self-respect plummet, seeing the ability to
take care of one's health care needs plummet, I see that there
are two sides to that issue.
But, we learn by asking questions. I was wondering--you are
from Counselor Chapter, Navajo Nation, northern New Mexico, and
I love hearing and reading of your long hikes. What a
nourishing thing when you can take long hikes, though
understanding some plant life is not there. But how do you make
a living?
Ms. Pinto. Well, fortunately, I live in an area where I can
grow my own food, and I don't have to leave my house. So, there
is no high, high priority for me to be able to have access to
gas and oil. Making a living out there, for me, is a little
simple, and I think that has a lot to do with my upbringing.
Mr. Gohmert. Have you had any Federal Government agencies
come in and tell you how you had to grow your food, or where
you could, or where you couldn't grow food? Or do you get to
make those choices on your own?
Ms. Pinto. Not personally. And I think it has a lot to do
with there are still frequent visits from departments and
government-related bodies, so there is currently no push to
keep gardens or any type of plans like that in----
Mr. Gohmert. Yes, so is the Navajo Nation pretty well
allowed to govern their own local territory?
Ms. Pinto. Yes, I believe so.
Mr. Gohmert. OK. So, Representative Cook, it sounds like
that is what you are asking for, just the opportunity that the
Navajo Nation has to have some say in your own governance of
your own property. Am I getting that right?
Mr. Cook. Yes, sir. When you spend years in a NEPA process
for your grazing allotment, and you have a line officer for the
Forest Service look at you, all of your partners, and family
and take his hands and raise them above his head and say, ``I
am up here, I make the decisions, here is what I do, and you
all are down here, you are supposed to bring me ideas and to do
the work,'' it is a life-changing event for you and your
business in the state of Arizona.
Mr. Gohmert. We also have a lot of farms or ranches in East
Texas raising cattle. We have some people that raise crops,
some that raise cattle. It is a nice, simple life. I worked on
the farms a good bit myself, growing up.
In raising those cattle, you are pretty much free--am I
getting that--to choose where you let the cattle graze, without
interference from the government?
Mr. Cook. No, sir, that is not true. We go to the Forest
Service, and we give them what we would like to do. Then they
decide where and when and approve where we can put our cattle.
In fact, the agency has even gone as far as wanting to GPS
where we are allowed to put salt blocks for our cattle out on
the range, which I did not agree with.
Mr. Gohmert. Well, thank you. My time has expired. And I
just hope and pray that maybe one of the results of this
hearing will be that people in Arizona will have the same
choice as the Navajo Nation has been able to have.
Thank you, I yield back.
Mr. Johnson. Thank you, Mr. Gohmert. The Chair recognizes
the gentleman from Florida, Mr. Soto, for 5 minutes.
Mr. Soto. Thank you, Mr. Chairman. And you will have to
forgive me if I ask a question or two that may have already
been asked. I just got here.
So first, I wanted to ask about the thoughts on the methane
rule. There is some push by the Department of the Interior to
eliminate or weaken the rule, releasing more air pollution from
hydrogen sulfide and volatile organic compounds into our
communities. What is sort of the opinion on keeping the methane
rule or not?
[Pause.]
Mr. Soto. Oh, to Ms. Maloy, please.
Ms. Maloy. I am not prepared to comment on the methane rule
today. That was also not in my testimony.
Mr. Soto. Sorry. To Ms. Kendra Pinto.
Ms. Pinto. Can you please repeat the last part of the
question?
Mr. Soto. Yes, I was asking about--there has been a push to
maybe remove the methane rule, and was wondering how that may
affect your community.
Ms. Pinto. Well, if it is removed, then there is less
protection for the people. I often have to remind people that
this is not a Monday-through-Friday job. It is an activity that
takes place 24/7.
Mr. Soto. Also, we see some moves to potentially change
fracking rules, which would eliminate basic standards for
keeping wells from breaking, or discourage waste dumping into
unlined pits. If we wanted to help safeguard dwindling water
supplies, what would you recommend, as far as keeping or
removing the fracking rule?
Ms. Pinto. I am not prepared to answer that question right
now.
Mr. Soto. OK. I will yield back.
Mr. Johnson. Thank you, Mr. Soto. The Chair recognizes the
esteemed Chair of our Full Committee on Natural Resources,
Representative Bishop, for 5 minutes.
Mr. Bishop. Thank you. I want that engraved, ``esteemed,''
in the future here.
[Laughter.]
Mr. Bishop. Representative Cook and Ms. Maloy, thank you
for being here. Just very quickly, tell me what is the impact
on your counties' efforts to try to provide for education
purposes, as well as things like transportation, with the
Federal land restrictions that are put on those areas?
If you could just quickly go through that--starting with
you, Mr. Cook.
Mr. Cook. Thank you, Chairman Bishop. First of all, like I
said earlier, the grazing fees--we used to have 50,000 to
55,000 head of cattle in Gila County. And of those grazing
fees, 25 percent would go back to our rural school districts.
As a State Representative, we are fighting for every fund that
we possibly can to give to those school systems. Well, we don't
have those with those grazing fees.
As for the road construction, this road has been in
existence for 80 or 100 years. Then all of a sudden, the Forest
Service just found that this wilderness that was created 50
years ago--they just found out that the boundary of that went
over the 10 miles of road, so they are going to close it?
Mr. Bishop. All right----
Mr. Cook. So, it has had a tremendous impact.
Mr. Bishop. Ms. Maloy, what happens in Washington County?
Ms. Maloy. Well, I am not just an employee of Washington
County, I am also a resident. I vote for people at the city,
county, state, and Federal level to make decisions and do
planning for things like transportation. And their hands are
tied, because they do not manage the land within the county.
Mr. Bishop. Has the county ever voiced their concerns with
Federal land managers?
Ms. Maloy. Yes. I----
Mr. Bishop. And in Arizona, does the county voice their
concerns with Federal land managers?
Mr. Cook. Mr. Bishop, I would like to say that the Forest
Service specifically told us in a meeting that they do not
consult with county governments.
Mr. Bishop. Don't get ahead of me. That was the next
question. All right?
[Laughter.]
Mr. Bishop. You tried to consult, they told you that is not
their job.
Mr. Cook. Yes. They said they don't have to consult with
county governments, according to FLPMA. They don't really
recognize it, in my opinion.
Mr. Bishop. I would like them to read the coordination
clause.
Anyway, yes, Ms. Maloy, what was the response you all got?
Ms. Maloy. We have spent hundreds of hours over the last
couple of years meeting with our Federal land management
agencies to try to make sure they understand what our local
plans are. And it has resulted in me being here today, giving
this testimony.
Mr. Bishop. See, that is one of the problems that we have,
and we need to address in some particular way, because
consultation is required of local governments. But what we have
found out over and over again is consultation is not taking
place, or at least they have strange definitions of what
qualifies for consultation. That needs to be clarified,
specifically by this Committee in some way, shape, or form.
Ms. Maloy, if I can go back to you as well, you talked
about the Omnibus Public Lands Management Act of 2009--great,
great piece of legislation. According to that, it released
wilderness study areas.
Ms. Maloy. Yes.
Mr. Bishop. But the BLM then told you their RMPs would
count this as still going through the identifying lands with
wilderness characteristics, even though that was not the intent
of the legislation?
Ms. Maloy. Yes.
Mr. Bishop. So, why did the land agencies tell you that
they weren't actually going to do what the intent of the
legislation was?
Ms. Maloy. Because of a lawsuit in Oregon, where BLM lost
when they did not consider lands with wilderness
characteristics in a very different fact pattern. They feel
like they now are required to consider lands with wilderness
characteristics, regardless of a congressional release.
Mr. Bishop. So that, in essence, they did not want to do
what the law told them to do, because it did not meet their
handbook policies.
Ms. Maloy. Yes.
Mr. Bishop. Is that kind of a backwards approach to things?
Ms. Maloy. It seems backwards to me.
Mr. Bishop. In reality, as well, too. I appreciate the
time, and I realize that we have a difficult time here going
on, that you all have restraints with other elements.
One of the things you have all reached upon are some
difficulties that we have to deal with; and we have to deal on
this Committee. So, I appreciate the question about trust,
because lands to trust--everyone has the right, including
tribes, to buy property, but what kind of input should local
government have is a question. And, in my mind, I am not
necessarily clear of where it should be, but we have to
delineate what kind of input should take place in the future.
What we had in the last administration did not necessarily
facilitate that.
What you said in both Arizona and in Utah is we have to be
able to have that kind of coordination and consultation that
was supposed to be in FLPMA. It was supposed to be part of the
law, it is mentioned in the law, but we have never clarified
what that is.
I also have this feeling that the Department of the
Interior is going to be dealt with much differently as we go
forward. But the question is, what happens with the next
Department of the Interior after that? And will we flip back
and forth, swinging between land agencies that do care about
the input from local governments versus those that do not? And
is there some way in statute that we could actually quantify
that, and provide a process that will go on beyond this
particular administration into the next to guarantee that
voices are going to be heard at the local level, which has not
happened in the past?
I apologize for going over, but I am also done. Mr.
Chairman--Mr. Vice Chairman, the esteemed Vice Chairman?
[Laughter.]
Mr. Johnson. I want that in writing. Thank you, Mr.
Chairman.
And for what purpose does Mr. McEachin seek recognition?
Mr. McEachin. Mr. Chairman, I would like to put a couple
things in the record.
I would ask for unanimous consent to enter the following
documents into the record: a transcript from the Senate
Subcommittee on Public Lands and Forests hearing that took
place on April 22, 2008; the 2008 Ninth Circuit Court opinion
in Oregon Natural Desert Association v. Bureau of Land
Management; the April 28, 2017 order from the Interior Board of
Land Appeals dismissing the appeal of Washington County, Utah;
Subtitle O of Public Law 111-11; Section 201 of the FLPMA,
which requires, not suggests, that the Interior Department
maintain wilderness inventory.
And I would ask for unanimous consent to introduce into the
record the decision known as Carcieri, which allowed the
Interior Department to recognize tribes that were not
officially recognized in 1934.
Mr. Johnson. Without objection, those documents will be
entered into the record.
[The information on Section 201 of the FLPMA follows:]
Federal Land Policy and Management Act of 1976
TITLE II
LAND USE PLANNING; LAND ACQUISITION
AND DISPOSITION
INVENTORY AND IDENTIFICATION
Sec. 201. [43 U.S.C. 1711] (a) The Secretary shall prepare and maintain
on a continuing basis an inventory of all public lands and their
resource and other values (including, but not limited to, outdoor
recreation and scenic values), giving priority to areas of critical
environmental concern. This inventory shall be kept current so as to
reflect changes in conditions and to identify new and emerging resource
and other values. The preparation and maintenance of such inventory or
the identification of such areas shall not, of itself, change or
prevent change of the management or use of public lands.
(b) As funds and manpower are made available, the Secretary shall
ascertain the boundaries of the public lands; provide means of public
identification thereof including, where appropriate, signs and maps;
and provide State and local governments with data from the inventory
for the purpose of planning and regulating the uses of non-Federal
lands in proximity of such public lands.
______
Mr. Johnson. We thank the witnesses for their valuable
testimony today as all of us seek to improve effectiveness and
efficiency in our Federal laws and agencies, and I thank the
Members for their questions.
The members of the Committee may have some additional
questions for the witnesses, and we ask that you respond to
these in writing.
Under Committee Rule 3.0 [sic], sorry, members of the
Committee must submit witness questions within three business
days following the hearing, and the hearing record will be held
open for 10 business days for all these responses.
If there is no further business, without objection, the
Committee stands adjourned. Thank you again.
[Whereupon, at 10:10 a.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Leelanau County Board of Commissioners,
Suttons Bay, Michigan
June 1, 2017
Hon. John W. ``Jack'' Bergman,
House Subcommittee on Oversight and Investigations,
Washington, DC 20515.
Dear Congressman Bergman:
My name is Ty Wessell and I am the District 4 Commissioner of
Leelanau County. My district contains tribal trust land of the Grand
Traverse Band of Ottawa and Chippewa Indians upon which several tribal
families reside, and those families have resided on that land since the
federal treaty allotment period in the 1855-1880s. I write to express
my opinion on the recent oversight hearing on Indian trust land held on
May 24 by the Investigative Oversight subcommittee of the House Natural
Resources Committee.
It has been brought to my attention that a California county
commissioner witness alleged that land taken into trust under the
Indian Reorganization Act (IRA) is an abuse of federal administrative
discretion and detrimental to State county interests. While I cannot
speak for California counties, I can freely speak as a Michigander and
current county commissioner of Leelanau County that we have in general
a large Indian population in the county, and in particular, I have
several Indian families in my district; therefore, as both a county
commissioner and a former superintendent of a public school system in
Leelanau county, I can assure you that the presence of tribal trust
land is not detrimental to our county, nor is it administratively
abusive for the federal government to put land into trust for the
benefit of tribal governments and tribal members.
Leelanau County is situated squarely within a treaty-established
reservation for the Grand Traverse Band of Ottawa and Chippewa Indians
(GTB). Under the treaties of 1836 and 1855 a significant proportion of
GTB land was ceded to the federal government; the treaties reserved
land for GTB and several other bands. The 1855 treaty intended to
established individual tribal trust allotments, a process that had its
own deprivations that ultimately resulted in significant loss of Indian
land. That Indian land loss had consequential effects of severe poverty
for GTB Indians, dislocation, disease, loss of Indian families' members
to adoption, death and loss of their cultural heritage and treaty
recognized rights.
The federal recognition of GTB in 1980, based on the long term
federal-tribal relationship between the United States and GTB, and the
subsequent positive federal trust land developments for housing, jobs,
governmental structures under the IRA, have benefited both the county
and tribal government and represent the best example of this nation's
continuing commitment to Indian Tribes and the self-determination of
Indian Tribes.
Thank you for your time and consideration. I look forward to
hearing back from you.
Sincerely,
Ty Wessell,
County Commissioner, District 4.
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Rep. McEachin Submissions
-- Hearing Transcript from the Senate Subcommittee on
Public Lands and Forests dated April 22, 2008.
-- Ninth Circuit Court opinion from ``Oregon Natural
Desert Association v. Bureau of Land Management''
filed July 14, 2008.
-- Order from the Department of the Interior Board of Land
Appeals dated April 28, 2017.
-- Subtitle O of Public Law 111-11.
-- United States Supreme Court opinion from ``Carcieri v.
Salazar'' decided on February 24, 2009.
-- Letter addressed to the House Natural Resources
Committee, Subcommittee on Oversight and
Investigations from Greta Anderson, Deputy Director
of the Western Watersheds Project dated May 26,
2017.
-- Statement to the House Natural Resources Committee,
Subcommittee on Oversight and Investigations from
Ernest Stevens Jr., Chairman of the National Indian
Gaming Association dated May 24, 2017.
-- Letter to Chairman Labrador and Rep. McEachin from the
Hon. William Iyall, Chairman of the Cowlitz Indian
Tribe dated June 7, 2017.
-- Letter to Chairman Labrador and Rep. McEachin from
Cedric Cromwell, Chairman of the Mashpee Wampanoag
Tribe dated June 7, 2017.
-- Testimony to the House Natural Resources Committee,
Subcommittee on Oversight and Investigations from
United South and Eastern Tribes Sovereignty
Protection Fund dated June 7, 2017.
-- Testimony to the House Natural Resources Committee,
Subcommittee on Oversight and Investigations from
the Ute Indian Tribe of the Uintah and Ouray
Reservation, dated June 8, 2017.
Rep. Gallego Submission
-- Letter addressed to Department of the Interior
Secretary Ryan Zinke from members of Department of
the Interior's Resource Advisory Committees dated
May 11, 2017.
Rep. Bergman Submission
-- Letter to Chairman Labrador and Ranking Member McEachin
from Mr. Thurlow ``Sam'' McClellan, Tribal Chairman
of the Grand Traverse Band of Ottowa and Chippewa
Indians dated June 6, 2017.
[all]