[Federal Register Volume 59, Number 67 (Thursday, April 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8329]
[[Page Unknown]]
[Federal Register: April 7, 1994]
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Part VI
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 248
Use of Columbia River In-Lieu Fishing Sites; Final Rule
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 248
RIN: 1076-AC79
Use of Columbia River In-Lieu Fishing Sites
AGENCY: Bureau of Indian Affairs, Department of the Interior.
ACTION: Final rule.
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SUMMARY: This final rule sets forth an amendment to the regulation at
25 CFR 248.6 consistent with the decision of the Ninth Circuit Court of
Appeals and the final Judgment in Sohappy v. Hodel, Ninth Circuit No.
88-3531, 911 F.2d 1312 (9th Cir. 1990). The court declared invalid that
portion of the regulation prohibiting permanent occupancy of the five
Columbia River in-lieu fishing sites. This final rule will delete the
prohibition against construction of permanent dwellings and structures
on the five in-lieu sites.
EFFECTIVE DATE: This final rule is effective May 9, 1994.
FOR FURTHER INFORMATION CONTACT: Ron Eggers, Branch of Fisheries,
Portland Area Office, Bureau of Indian Affairs, 911 NE 11th Ave.,
Portland, Oregon 97232-4169; Telephone No. (503) 231-6749.
SUPPLEMENTARY INFORMATION:
I. Background
Several Pacific Northwest Indian tribes hold treaty rights to fish
on the Columbia River. In the 1930's the construction of Bonneville Dam
flooded some of the Indians' usual and accustomed fishing sites along
the river. In 1945 Congress authorized acquisition of replacement sites
to be held by the Secretary of the Interior for the use and benefit of
the Indians. The five sites acquired under that authorization are
managed by the Bureau of Indian Affairs pursuant to regulations in 25
CFR part 248.
Section 248.6 provides that ``no dwellings or structures shall be
erected, placed, or maintained upon the sites, except that camping
facilities may be placed thereon only as herein described and fish
drying facilities and fishing platforms may be erected by Indians for
use during the fishing season.'' The intent of the regulation was to
prohibit permanent occupancy of the sites in order to provide a
rational and reasonable means for ensuring health and safety on the
sites and for providing a fair opportunity to all eligible Indians to
use the sites for fishing purposes.
Sohappy v. Hodel, Civil No. 86-715-FR (D. Or.), was filed by
individual Indians and a group called ``Chiefs and Council of the
Columbia River Indians'' in order to challenge the Bureau of Indian
Affairs' eviction of several Indians living in permanent dwellings on
the sites. The Federal District Court held that the regulation
prohibiting permanent occupancy is consistent with rights reserved by
treaty and with the 1945 statute authorizing acquisition of the five
sites. The Ninth Circuit Court of Appeals reversed, holding that the
1945 act and the tribes' treaties do not preclude construction of
permanent dwellings at the sites. Sohappy v. Hodel, 911 F.2d 1312 (9th
Cir. 1990). The case was remanded to the District Court where final
Judgment was entered on August 30, 1991.
The Judgment declares 25 CFR 248.6 invalid insofar as it prohibits
permanent occupancy of the five sites and provides that the Bureau of
Indian Affairs ``shall take good faith steps'' to amend the regulation
consistent with the Ninth Circuit's decision and the final Judgment.
The Judgment does not preclude the Bureau from taking reasonable
actions necessary to enforce applicable health and safety laws.
Therefore, the Bureau of Indian Affairs published the proposed
amendment (57 FR 45258) to revise section 248.6 to delete the
prohibition against construction of permanent dwellings and structures
on the sites and to retain the requirement that the sites be used in a
manner that conforms to applicable health, sanitation and safety laws.
The Judgment in Sohappy v. Hodel does not affect the Indian tribes'
right, title or interest in the sites or the nature and extent of the
tribes' sovereign authority to use or manage the sites for fishing
purposes under their treaties, Settler v. Lameer, 507 F.2d 231 (9th
Cir. 1974). It is also important to note that the regulations in 25 CFR
part 248 do not apply to the fishing access sites designated in Section
401 of the Act of November 1, 1988. The Indian tribes, the Bureau of
Indian Affairs, and the U.S. Army Corps of Engineers are working
together on plans for development, management and regulation of the new
fishing access sites.
II. Responses to Public Comments
The following is a summary of the comments received by the Bureau
of Indian Affairs in response to the proposed rule published on
September 30, 1992 (57 FR 45258) and the Department's response to these
issues.
There were no comments on or objections to the proposed amendment
to delete the prohibition against the construction of permanent
dwellings and structures on the five in-lieu sites, which was the only
subject matter of the proposed rule. However, several comments
suggested that the requirement that the sites be used in conformity
with applicable health, sanitation and safety standards be changed or
deleted on the grounds that the requirement is contrary to the Judgment
in Sohappy v. Hodel and illegally recognizes, or might be construed as
recognizing, State or local regulatory authority over the in-lieu
sites. Although this portion of the regulation was not the subject
matter of the proposed rule, we addressed the comment in order to
clarify the purpose and intent of the existing provision of the
regulation.
The regulation, as originally adopted in 1969, provides that the
``sites must be used in a manner that conforms to the health,
sanitation, and safety requirements of the State or local law, or, in
the absence of appropriate State or local laws, to the health,
sanitation, and safety recommendations of the U.S. Public Health
Service.'' That portion of the regulation was not challenged by the
plaintiffs in Sohappy v. Hodel. Moreover, the final Judgment in Sohappy
v. Hodel expressly recognizes the Bureau's continuing authority to
manage and maintain the sites consistent ``with the health and safety
requirements of 25 CFR part 248 and other applicable laws.'' Therefore,
the requirement that the sites be used in conformity with appropriate
health, sanitation, and safety laws is not in conflict with the
Judgment in Sohappy v. Hodel.
The Bureau agrees that the States do not have regulatory
jurisdiction or authority over the in-lieu fishing sites. The sites are
Federal properties held by the United States for the benefit of the
Indian tribes with treaty fishing rights in the Columbia River. The
Bureau regulates and manages the sites as a matter of Federal law, but,
in the absence of specific Bureau regulations governing health,
sanitation, and safety requirements, the regulation provides for the
incorporation by reference of State or U.S. Public Health Service
standards. There were no comments which documented any instance of
attempted State regulatory enforcement. Because it is clear the States
lack regulatory authority at the sites, we do not believe there is any
need to amend or delete this language from the regulation.
Comments from the Yakima Indian Nation and the Confederated Tribes
of the Warm Springs Reservation, suggest that management and regulation
of the sites should be governed by the law of the tribe which ceded the
territory wherein the sites are located. The sites are owned by the
Federal government and are managed by the Bureau for the benefit of all
the tribes with treaty fishing rights in the Columbia River, and
therefore exclusive management cannot be granted to a single tribe,
absent an agreement between all the affected tribes. The suggestion has
not been adopted in this final rule.
Finally, one comment suggested that the proposed regulation
inappropriately affects the tribes' right, title and interests in the
sites, restricts the Indians' right to use the sites for fishing and
related purposes, and permits unreasonable actions by the agency, all
contrary to the final Judgment in Sohappy v. Hodel. There was no
documentation regarding any specific impact on the tribes' rights or
suggestions of any specific language change. The Judgment in Sohappy v.
Hodel declared the regulation invalid insofar as it prohibits permanent
occupancy of the five in-lieu sites. The amendment specifically deletes
the prohibition against construction of permanent dwellings and
structures on the sites. We believe the final rule is consistent with
the Judgment and no changes have been made.
III. The Final Rule
This final rule is published in exercise of the authority delegated
by the Secretary of the Interior to the Assistant Secretary--Indian
Affairs by 209 DM 8.
The Department has certified to the Office of Management and Budget
that this final regulation meets the applicable standards provided in
section 2(a) and section 2(b)(2) of Executive Order 12778.
In accordance with Executive Order 12630, the Department has
determined that this final rule does not have significant takings
implications.
The Department has determined that this final rule does not have
significant Federalism effects.
The Department of the Interior has reviewed this document under
Executive Order 12866 and has determined that this is not a significant
rule.
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities within the meaning of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.) because of the limited applicability as stated above.
The Department of the Interior has determined that this final rule
does not constitute a major Federal action significantly affecting the
quality of the human environment and that no detailed statement is
required pursuant to the National Environmental Policy Act of 1969.
There are no information collection requirements contained in this
final rule that require the approval of the Office of Management and
Budget under 44 U.S.C. 3501 et seq.
List of Subjects in 25 CFR Part 248
Fisheries, Fishing, Indians.
For the reasons set out in the preamble, part 248 of subchapter J
of chapter I of Title 25 of the Code of Federal Regulations is amended
to read as follows:
PART 248--USE OF COLUMBIA RIVER IN-LIEU FISHING SITES
1. The authority citation for 25 CFR part 248 continues to read as
follows:
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9.
2. Section 248.6 is revised to read as follows:
Sec. 248.6 Structures.
Dwellings, camping facilities, and other structures such as fish
drying facilities and fishing platforms may be erected, placed, or
maintained on the sites for use in the conduct of treaty fishing and
related activities. Sites must be used in a manner that conforms to the
health, sanitation, and safety requirements of the State or local law,
or, in the absence of appropriate State or local laws, to the health,
sanitation, and safety recommendations of the U.S. Public Health
Service. The privileges or right of access to or use of the sites of
any individual may be suspended or withdrawn, in the discretion of the
Area Director, when such individual having violated such health,
sanitation, and safety requirements repeats such violation after having
been given notice to cease and desist therefrom.
Dated: March 15, 1994.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 94-8329 Filed 4-6-94; 8:45 am]
BILLING CODE 4310-02-P
