[Federal Register Volume 60, Number 211 (Wednesday, November 1, 1995)]
[Proposed Rules]
[Pages 55506-55511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26686]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 161
RIN 1076-AC81
Navajo Partitioned Land Grazing Regulations
AGENCY: Bureau of Indian Affairs, Department of the Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Indian Affairs proposes to add Part 161 to 25
CFR to govern the grazing of livestock on the Navajo Partitioned Land
(NPL) of the Navajo-Hopi Former Joint Use Area (FJUA) of the 1882
Executive Order reservation. The purpose of these regulations is to
conserve the rangelands of the NPL in order to maximize future use of
the land for grazing and other purposes.
DATES: Comments on these proposed rules must be submitted by January 2,
1996.
ADDRESSES: Send comments to Bureau of Indian Affairs, Division of Water
and Land Resources, Room 4559, 1849 C Street N.W., Washington, DC
20240, or telephone number (202) 208-4004.
FOR FURTHER INFORMATION CONTACT: Robert Curley, (602) 871-5151, Ext.
5105, at the Navajo Area Office in Window Rock, Arizona.
SUPPLEMENTARY INFORMATION: As a result of the long-standing dispute
between the Hopi Tribe and the Navajo Nation over beneficial ownership
of the reservation created by the Executive Order of December 16, 1882,
Congress passed the Act of July 22, 1958, 72 Stat. 403, which permitted
the Navajo Nation and the Hopi Tribe to sue each other in federal court
to resolve the issue. The Hopi Tribe initiated such a suit on August 1,
1958, in United States District Court for the District of Arizona in
Healing v. Jones, 174 F. Supp. 211 (D. Ariz. 1959), (Healing I). The
merits of the case were heard by a three judge panel of the United
States District Court for the District of Arizona in Healing v. Jones,
210 F. Supp. 125 (D. Ariz. 1962) aff'd 373 U.S. 758 (1963), (Healing
II) after the initial procedural challenges to the suit were dismissed
in Healing I. The district court determined that while the Hopi Tribe
had a right to the exclusive use and occupancy of a portion of the 1882
reservation known as District 6, it shared the remaining lands of the
1882 reservation in common with the Navajo Nation. Disputes between the
two tribes continued over the right to use and occupy the 1882
reservation in spite of the district court's decision in Healing II,
which was affirmed by the Supreme Court. In an attempt to resolve these
ongoing problems, Congress enacted the Navajo-Hopi Settlement Act, 25
U.S.C. 640d--640d-31, which provided for the partition of the Joint Use
Area of the 1882 reservation, excluding District 6, between the two
tribes. The Act was amended by the Navajo-Hopi Indian Relocation
Amendments Acts of 1980, 94 Stat. 929, due to the dissatisfaction
expressed by both tribes with the relocation process.
The Relocation Act Amendments added subsection (c) to 25 U.S.C.
640d-18. It required the Secretary of the Interior to complete the
livestock reduction program contained in 25 U.S.C. 640d-18(a) within 18
months of its enactment. The new subsection also required that all
grazing control and range restoration activities be coordinated and
executed with the concurrence of the tribe to which the land had been
partitioned. In 1982, the U.S. District Court for the District of
Arizona determined in Hopi Tribe v. Watt, 530 F. Supp. 1217 (D. Ariz.
1982), that the grazing regulations contained in Part 153 of 25 CFR
were invalid with respect to the 1882 reservation partitioned to both
the Navajo Nation and the Hopi Tribe. The court reached that conclusion
because the regulations did not provide for the concurrence of the
Navajo Nation or the Hopi Tribe as required by the Relocation Act
Amendments. The district court's ruling was upheld by the Ninth Circuit
Court of Appeals in Hopi Tribe v. Watt, 719 F. 2d 314 (9th Cir. 1983).
As a result of the decision in Hopi Tribe v. Watt, Id., the Bureau
of Indian Affairs sought the written concurrence of the Navajo Nation
for the regulations which are herein published. The concurrence of the
Navajo Nation to these regulations was provided by the Resources
Committee of the Navajo Nation Council pursuant to resolution No. RCAP-
079-92 of April 29, 1992. Non-substantive, editorial changes have been
made to the proposed regulations which were approved by the Navajo
Nation.
These regulations are being issued to implement the Secretary of
the Interior's responsibilities mandated by the Navajo-Hopi Settlement
Act, as amended by the Relocation Act Amendments, and the previously
cited federal court decisions. In 1982 Part 152 of 25 CFR was
redesignated as Part 167 and Part 153 of 25 CFR was redesignated as
Part 168. All grazing permits issued for the Joint Use Area under the
old 25 CFR Part 152, some of which dated from 1940, were canceled
within one year pursuant to the Order of Compliance issued on October
14, 1972, by the U.S. District Court of the District of Arizona in
Hamilton v. MacDonald, Civ. 579-PCT. From 1973 through 1978 the Bureau
of Indian Affairs did not issue grazing permits for the Joint Use Area
because it was necessary to complete a census of the human and animal
populations of the Joint Use Area (JUA) in conjunction with a
calculation of the range's carrying capacity and stocking rates.
However, in late 1977 the Joint Use Area Administrative Office of the
Bureau of Indian Affairs at Flagstaff, Arizona, completed its inventory
and began issuing annual grazing permits to the residents of the JUA.
These interim permits were limited to one year by order of the federal
district court. Since the 1982 ruling in Hopi v. Watt, 530 F.2d 1217
(1983), declaring that the pre-1982 regulations were invalid, the
[[Page 55507]]
Bureau of Indian Affairs has been subject to the provisions of the
Navajo-Hopi Settlement Act, as amended, which require the development
of new grazing regulations for the Navajo Partitioned Land with the
concurrence of the Navajo Nation. These regulations are the product of
that consultation.
The grazing regulations in the proposed rules apply only to the
Navajo Partitioned Lands.
It is the policy of the Department of the Interior to afford the
public an opportunity to participate in the rulemaking process whenever
feasible. Accordingly, interested parties may submit written comments,
suggestions or objections regarding these proposed rules to the office
identified in the ``ADDRESS'' section of the preamble. The primary
author of this document is Robert Curley, P. O. Box 1060, Gallup, New
Mexico 87305, telephone number 602/871-5151, Ext. 5106.
The Department of the Interior has determined that these proposed
rules do not constitute a major federal action significantly affecting
the quality of the human environment. Thus, no detailed environmental
impact statement is required by the National Environmental Policy Act
of 1969, 42 U.S.C. 4332 (1988).
The information collection requirements contained in these rules do
not require the approval of the Office of Management and Budget under
44 U.S.C. 3501-3520.
E.O. 12866 Statement
This rule has been reviewed under Executive Order 12866.
Regulatory Flexibility Act Statement
This rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act, 5 U.S.C. 601-612 (1988).
Takings Implication Assessments (E.O. 12630)
In accordance with E.O. 12630, the Department has determined that
these proposed rules do not have significant takings implications.
List of Subjects in 25 CFR Part 161
Grazing lands, Indian lands, Livestock.
For reasons set forth in the preamble to this part, the Bureau of
Indian Affairs proposes to add part 161 to title 25, chapter I of the
Code of Federal Regulations as it appears below.
25 CFR PART 161--NAVAJO PARTITIONED LAND GRAZING REGULATIONS
Sec.
161.01 Definitions.
161.02 Authority.
161.03 Purpose.
161.04 Scope.
161.05 How range units are established.
161.06 Establishing and implementing Range Management Plans.
161.07 How range improvements are treated.
161.08 How carrying capacity and stocking rate are established.
161.09 Restriction on grazing permits.
161.10 Eligibility and priorities for issuing grazing permits.
161.11 How grazing permits are allocated.
161.12 Provisions required in all grazing permits.
161.13 Procedures for issuing permits.
161.14 Duration of grazing permits.
161.15 Kind and classes of livestock that may be grazed.
161.16 How grazing fees will be assessed and collected.
161.17 How permits may be assigned, modified, or cancelled.
161.18 Establishing and administering special land uses.
161.19 Livestock trespass.
161.20 Impoundment and disposal of trespassing livestock.
161.21 Controlling livestock diseases and parasites.
161.22 Procedures for Navajo Nation concurrence.
161.23 How to appeal decisions on grazing permits.
161.24 Information Collection.
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 640d--640d31.
Sec. 161.01 Definitions.
As used in this part, terms shall have the meanings set forth in
this section:
Allocate means to apportion grazing privileges, including the
determination of who may graze livestock, the number and kind of
livestock, and the place such livestock shall be grazed.
Animal unit (AU) means one adult cow with unweaned calf by her side
or equivalent thereof based on comparative forage consumption. Accepted
conversion factors are: Sheep and Goats--one ewe, doe, buck or ram
equals 0.20 AU; one sheep unit year long (SUYL) equals 0.20 Animal Unit
Year Long: Horses and Mules--one horse, mule, donkey or burro equals
1.25 AU.
Animal Unit Month (AUM) means the amount of feed or forage required
by an animal unit for one month. The conversion factors under the
definition of animal unit apply. Thus, for sheep, one animal unit month
is the amount of feed or forage required by five sheep in one month.
Area Director means the officer in charge of the Navajo Area Office
for the Bureau of Indian Affairs (or his/her designee or authorized
representative).
BIA enumeration means the list of persons living on and
improvements located within the Former Joint Use Area obtained by
interviews conducted in 1974 and 1975 by the Project Officer's staff.
Carrying capacity means the maximum stocking rate possible without
inducing a downward trend in forage production, forage quality, or
related resources.
Class of animal means the age and/or sex of an animal. Example:
cow, calf; ewe, lamb; doe, kid; mare, colt; etc.
Concurrence means agreement by the Area Director and the Navajo
Nation.
Conservation practice means a method of management that seeks to
maintain and/or improve natural resources on a sustained yield basis.
Former Joint Use Area (FJUA) means the area established by the
United States District Court for the District of Arizona in Healing v.
Jones, 210 F. Supp. 125 (1962), aff'd 373 U.S. 758 (1963), that is
inside the Executive Order area [Executive Order of December 16, 1882]
but outside Land Management District 6, and that was divided between
the Navajo Nation and the Hopi Tribe by the Judgment of Partition
issued April 18, 1979, by the United States District Court for the
District of Arizona.
Grazing Permit means a revocable privilege granted in writing and
limited to entering on and utilizing forage by domestic livestock on a
specified tract of land. The term as used in this part shall include
written authorizations issued to enable the crossing or trailing of
domestic livestock across specified tracts or range units.
Hopi Partitioned Land or HPL means that portion of the Former Joint
Use Area which was partitioned to the Hopi Tribe.
Immediate family member means any of the following:
(1) The living spouse of a decedent who was a former permittee;
(2) The children of the deceased if the spouse is not living; or
(3) Siblings of the deceased if neither a spouse or children are
living.
Livestock inventory means the original list developed by the
Project Officer in 1976-77 of livestock owned by persons with a grazing
permit or shared grazing permit, and having customary grazing use in
the Former Joint Use Area under 25 CFR part 167 (formerly part 152).
Management unit means a subdivision of a range unit.
Nation or Navajo Nation means the Resources Committee of the Navajo
[[Page 55508]]
Nation Council, which has been delegated authority to exercise the
powers of the Navajo Nation with regard to the range development and
grazing management of the Navajo Partitioned Land.
Navajo Partitioned Land or NPL means that portion of the Former
Joint Use Area which has been partitioned to the Navajo Nation.
NPL Grazing Committee means the District Grazing Committee
established by the Navajo Nation that is responsible, in whole or in
part, for the NPL (affected areas).
Nonconcurrence means disagreement between the Area Director and the
Navajo Nation.
Project Officer means the Bureau of Indian Affairs official
(formerly the Special Project Officer of the Bureau of Indian Affairs
Administrative Office, Flagstaff, Arizona), to whom is delegated the
authority of the Commissioner of Indian Affairs to act in matters
regarding the Navajo Partitioned Land of the Former Joint Use Area.
Range improvement means:
(1) Any structure or excavation to facilitate management of the
range for livestock;
(2) Any practice designed to improve the range condition or
facilitate more efficient utilization of the range; or
(3) Any modification resulting in an increase in the grazing
capacity of the range.
Range management plan means a plan developed for the beneficial use
of a range unit.
Range unit or range allotment means an area designated for the use
of a prescribed number and kind of livestock under one plan of
management.
Resident is a person who lives on the Navajo Partitioned Land full-
time and previously utilized a customary use grazing permit under 25
CFR part 167 (formerly part 152).
Secretary means the Secretary of Interior or his/her designated
representative.
Settlement Act means the Act of December 22, 1974, 25 U.S.C. 640d--
640d-31.
Special land use means all land usage for purposes other than for
grazing or pasture lands, for which permits, leases, or assignments are
approved by the Area Director under Federal law, or by the Navajo
Nation under the Navajo Tribal Code.
Special management area means an area for which a single management
plan is developed and applied in response to special management
objectives such as watersheds, fire hazard areas, or other similar
concerns.
Stocking rate means the authorized number of Animal Units by range
unit. (``Carrying capacity'' as used in the Settlement Act denotes
stocking rate).
Useable land area means accessible land within a designated
management area producing forage suitable for consumption by livestock.
Sec. 161.02 Authority.
It is within the general authority of the Secretary to protect
Indian trust lands against waste and to prescribe rules and regulations
under which these lands may be leased or permitted for grazing. Under
the Navajo-Hopi Settlement Act, as amended, 25 U.S.C. 640d-8 and 640d-
18, the Secretary is authorized and directed to:
(a) Adjust livestock grazing within the Former Joint Use Area to
carrying capacity;
(b) Restore the grazing potential of the NPL to the maximum extent
feasible;
(c) Survey, monument, and fence the partition boundary;
(d) Protect the rights and property of individuals awaiting
relocation;
(e) Administer conservation practices, including grazing control
and range restoration activities, on the Navajo Partition Lands.
Sec. 161.03 Purpose.
The regulations in this part are issued to implement the
Secretary's responsibilities mandated by the Settlement Act. In general
the regulations in this part are intended to aid in the preservation of
forage, soil, and water resources on the Navajo Partitioned Land, and
to aid in the recovery of those resources where they have deteriorated.
Sec. 161.04 Scope.
The grazing regulations in this part apply to the Navajo
Partitioned Land within the boundaries of the Navajo Reservation held
in trust by the United States for the Navajo Nation.
Sec. 161.05 How range units are established.
(a) The Area Director, in consultation with the NPL Grazing
Committee and the grazing permittees, and with the concurrence of the
Navajo Nation, shall establish or, where it has been determined that
modification will significantly improve the management of all areas,
modify range units on the Navajo Partitioned Land to provide unified
areas for which range management plans can be developed to improve and
maintain soil and forage resources. Physical land features, watersheds,
drainage patterns, vegetation, soil resident concentrations, problem
areas, historical land use patterns, and comprehensive land use
planning shall be considered in the determination of range unit
boundaries.
(b) The Area Director may modify range unit boundaries to include
small and/or isolated portions of Navajo Partitioned Land with
contiguous Navajo tribal lands in order to develop more economical land
management areas. These modifications shall be made in consultation
with the affected NPL grazing permittees, the grazing permittees on
adjoining areas, the NPL Grazing Committee, and the Navajo Nation.
(c) Permittees must obtain archaeological clearances before any
fencing or other land disturbance. Pursuant to Public Law 93-531, as
amended, no action taken pursuant to, in furtherance of, or as
authorized by the regulations in this part shall be deemed a major
Federal action for purposes of the National Environmental Policy Act of
1969 as amended, 42 U.S.C. 4332.
Sec. 161.06 Establishing and implementing Range Management Plans.
(a) The Area Director shall confer with the Navajo Nation in
planning conservation practices for the Navajo Partitioned Land. The
Area Director shall develop range management plans in consultation with
the NPL Grazing Committee and the grazing permittees residing in each
range unit. After the Navajo Nation concurs with and the Area Director
approves the range management plan, the implementation of the plan may
begin immediately. The plan shall address, but shall not be limited to,
the following issues:
(1) Goals for improving vegetative productivity;
(2) Incentives for carrying out the goals;
(3) Stocking rates;
(4) Grazing schedules;
(5) Wildlife management;
(6) Needs assessment for range and livestock improvements;
(7) Schedule for operation and maintenance of existing range
improvements and the opportunities for installing privately or
cooperatively funded projects;
(8) Cooperation in the implementation of range studies;
(9) Control of livestock diseases and parasites;
(10) Fencing or other structures necessary to implement any of the
other provisions in the range management plan.
(b) Range management plans and actions shall require consultation
with the affected grazing permittees.
(c) All range management plans, actions and decisions shall be
submitted to the Navajo Nation for review and concurrence.
[[Page 55509]]
Sec. 161.07 How range improvements are treated.
Range improvements placed on the Navajo Partitioned Land shall be
considered affixed to the land unless specifically exempted in the
permit. No range improvement may be constructed or removed from Navajo
Partitioned Land without the written consent of the Area Director and
the Navajo Nation. All grazing permits shall state that the permittee
is responsible for maintenance of range improvements specifically
identified in the management plan.
Sec. 161.08 How carrying capacity and stocking rate are established.
(a) The Area Director, with the concurrence of the Navajo Nation,
must prescribe the carrying capacity of each range unit by determining:
(1) The maximum number of each kind of livestock that can be grazed
on the unit without damage to vegetation or related resources; and
(2) The season or seasons of use required to achieve the objectives
of the land recovery program required by the Settlement Act.
(b) The stocking rate of each range or management unit shall be
established by the Area Director, with the concurrence of the Navajo
Nation, and shall be based on forage production, range utilization, the
application of land management practices, and range improvements in
place to achieve uniformity of grazing under sustained yield management
principles on each range or management unit.
(c) The Area Director shall review the carrying capacity of the
grazing units on a continuing basis and adjust the stocking rate for
each range or management unit as conditions warrant.
(d) Any change in the stocking rate allowed in the grazing permits
will be prorated on an equal percentage basis among the grazing
permittees on the range or management unit.
Sec. 161.09 Restrictions on grazing permits.
Grazing use on range units is authorized only by permits granted
under this part. A state brand only identifies the owner of the
livestock, but does not authorize the grazing of any livestock within
the NPL. Only a grazing permit issued pursuant to the regulations in
this part authorizes the grazing of livestock within the NPL. Grazing
permits shall be subject to the following restrictions:
(a) Grazing permits shall not be issued or subdivided for less than
four animal units (20 sheep units);
(b) A grazing permit shall be issued in the name of one individual
unless otherwise approved by the NPL Grazing Committee and the Area
Director;
(c) Grazing permits shall be issued for use in one range unit only;
and
(d) Grazing permits may contain additional conditions authorized by
Federal or Navajo Tribal laws.
Sec. 161.10 Eligibility and priorities for issuing grazing permits.
(a) Eligibility. Only those applicants who meet the following
criteria are eligible to receive permits to graze livestock:
(1) Those who had valid grazing permits or shared grazing permits
under an extended family group agreement on Navajo Partitioned Land
under 25 CFR part 167 (formerly part 152) and whose permits were
cancelled on October 14, 1973;
(2) Those who are listed in the 1974-1975 FJUA enumeration;
(3) Those who are current residents on Navajo Partitioned Land; and
(4) Those who do not presently hold a valid grazing permit in a
land management district within the Navajo Indian Reservation.
(b) Priorities. Applicants who are eligible to receive a permit
under paragraph (a) of this section shall be assigned priorities based
on the following criteria:
(1) First priority shall go to heads of households currently over
the age of 65.
(2) Second priority shall go to heads of households under the age
of 65.
(3) In each priority class, eligible applicants who had shared
grazing permits shall be equal to those who had their own grazing
permits.
Sec. 161.11 How grazing permits are allocated.
(a) Initial allocation of the number of Animal Units authorized in
each grazing permit shall be based on the number of Animal Units
previously authorized in prior grazing permits and the authorized
stocking rate on a given range unit.
(b) Grazing permit allocations shall vary from range unit to range
unit depending on the stocking rate of each unit, the management plan,
and the number of eligible grazing permittees in the unit.
(c) Any change in carrying capacity requiring adjustments to the
stocking rate shall be prorated on an equal percentage basis to
permittees on each range unit.
Sec. 161.12 Provisions required in all grazing permits.
(a) All grazing permits shall contain the following provisions:
(1) The permittee agrees he/she will not use, cause, or allow to be
used any part of the permitted area for any unlawful conduct or
purpose.
(2) The permit authorizes no privilege other than grazing use.
(3) No person is allowed to hold a grazing permit in more than one
range unit of the Navajo Partitioned Land.
(b) Any other special provision which, in the discretion of the
Area Director and with the concurrence of the Navajo Nation, is
necessary to protect the land and resource may be added to the permit.
Sec. 161.13 Procedures for issuing permits.
The Area Director shall issue grazing permits only to individuals
that meet the eligibility requirements of Sec. 161.10 (a).
Responsibilities for the initial issuance of grazing permits shall be
as follows:
(a) The Area Director shall develop a complete list of all prior
permit holders, including shared permittees under an extended family
agreement, who had grazing permits cancelled on the NPL and HPL and who
now reside on the NPL. This list shall be provided to the NPL Grazing
Committee for its review. The Area Director shall also provide the NPL
Grazing Committee with his/her determination of the carrying capacity
and stocking rate for each range unit within the NPL.
(b) Within 45 days of receipt, the NPL Grazing Committee shall
review the list of potential permittees provided by the Area Director
for a range unit, and, according to the eligibility and priority
criteria set forth in Sec. 161.10, and make recommendations to the
Navajo Nation for the granting of grazing permits on the range unit.
The Committee shall also make a recommendation for initial permit
allocation of animal units for each permit application.
(c) If the NPL grazing committee fails to make its recommendation
to the Navajo Nation within 45 days after receiving the list of
potential permittees for a range unit and the determination of stocking
rate, then the Area Director shall submit his/her recommendations to
the Navajo Nation.
(d) The Navajo Nation shall review and concur with the list of
proposed permit grantees, including the initial permit allocation of
animal units, and then forward a final list to the Area Director for
the issuance of grazing permits.
Sec. 161.14 Duration of grazing permits.
Each new grazing permit shall be valid until January 1 of the year
following its issuance. After its initial issuance, each grazing permit
is valid for one year beginning on January 1. All grazing permits that
are being used by
[[Page 55510]]
permittees shall be automatically renewed annually until cancelled. If
a grazing permit is not used by the permittee for a one year period,
the Area Director may cancel the permit.
Sec. 161.15 Kind and classes of livestock that may be grazed.
Unless otherwise determined by the Area Director for conservation
purposes and specified in the grazing permit, the permittee may
determine the kind and class of livestock that may be grazed on range
units.
Sec. 161.16 How grazing fees will be assessed and collected.
If requested by the Navajo Nation, the Area Director shall assess
and collect grazing fees under the following procedures:
(a) Fees are to be paid in advance, due and payable by January 1,
with a 30-day grace period thereafter;
(b) Fees shall be collected by the Area Director and thereafter
transferred to the Navajo Nation to be set aside for range management
purposes in grazing management areas;
(c) All grazing permittees who fail to pay the prescribed fees by
January 1, or within the 30-day grace period, shall be subject to a
reasonable late charge set by the Navajo Nation;
(d) If payment is not received after 90 days the grazing permit
shall be subject to cancellation.
Sec. 161.17 How permits may be assigned, modified, or cancelled.
(a) Grazing permits may be assigned, sub-permitted or transferred
only as provided in this section. Permits may only be inherited or
assigned as a single permit, with the approval of the Navajo Nation and
the Area Director, to another immediate family member who has retained
full time residency on the NPL.
(b) The Area Director shall notify the Navajo Nation before taking
any adverse actions. The Area Director may revoke or withdraw all or
any part of a grazing permit by cancellation or modification on 60 days
written notice to a grazing permittee of a violation of the permit or
special conditions affecting the land or the safety of the livestock
thereon, including, but not limited to, flood, disaster, drought,
contagious diseases; or for non-payment of grazing fees or violation of
these regulations; or violation of Federal or tribal laws. Except in
the case of extreme necessity, specified in the notice, cancellation or
modification shall be effective on the next anniversary date of the
grazing permit following the date of notice.
Sec. 161.18 Establishing and administering special land uses.
The Navajo Nation and the Area Director may establish special land
uses, including leases, withdrawals, and land assignments. If a special
land use is inconsistent with issued grazing permits or range
management plans, the special use will govern and will require the
amendment of the grazing permits and range management plans.
Sec. 161.19 Livestock trespass.
The owner of any livestock grazing in trespass on the Navajo
Partitioned Land is liable for a minimum civil penalty of one dollar
per head per day for each cow, bull, horse, mule, or donkey and twenty-
five cents per day for each goat or sheep in trespass, together with
the replacement value of the forage consumed and a reasonable value for
damages to property injured or destroyed. The Area Director may collect
penalties and damages and seek injunctive relief when appropriate. All
payments for penalties and damages shall be credited to the Navajo
Nation's special deposit account. The following acts are prohibited:
(a) Grazing or driving livestock across the Navajo Partitioned Land
without an approved grazing or crossing permit;
(b) Allowing livestock to drift and graze on the NPL without an
approved permit;
(c) Grazing livestock in an area closed to grazing for that class
of livestock;
(d) Grazing livestock upon any land that the Area Director has
withdrawn from grazing use to protect it from damage, after notice of
the withdrawal is received; and
(e) Grazing more in number or kinds of livestock than are
authorized by an appropriate grazing permit.
Sec. 161.20 Impoundment and disposal of trespassing livestock.
(a) The Area Director shall notify the NPL Grazing Committee of any
livestock trespass on the NPL.
(b) After the NPL Grazing Committee has been notified or otherwise
becomes aware of the existence of the livestock trespass, a five day
period shall be allowed for the NPL Grazing Committee to resolve the
livestock trespass with the grazing permittee or livestock owner before
formal trespass action is taken.
(c) If trespassing livestock within a range unit are not removed
within the periods prescribed in this section, the Area Director shall
impound and dispose of it as follows:
(1) If the Area Director knows of the class of livestock and the
name and address of the owners, he/she may impound the livestock any
time five days after mailing by certified mail or having delivered to
the owners or their agent a Notice of Intent to Impound.
(2) When the Area Director does not know of the number and class of
livestock or the name and address of the owner, he/she shall impound
the livestock anytime 15 days after the date of a General Notice of
Intent to Impound is:
(i) Published in the local newspaper;
(ii) Posted at the nearest chapter house or in one or more local
trading posts; and
(iii) Announced in English and in Navajo by a local radio station.
(3) The Area Director may impound trespassing livestock owned by a
person given notice under paragraphs (c)(1) and (2) of this section
without further notice within the six-month period immediately
following the effective date of the notice.
(4) Following the impoundment of trespassing livestock, a Notice of
Sale of Impounded Livestock shall be published in a local newspaper,
posted at the nearest chapter, posted in one or more local trading
posts, and announced in English and in Navajo by a local radio station.
The notice shall describe the livestock and specify the date, time, and
place of sale. The date set shall be at least five days after the
publication, posting, and announcement of the notice.
(5) The owner or his or her agent may redeem the livestock any time
before the time set for this sale by submitting proof of ownership and
paying for the expenses incurred in gathering, impounding, and feeding
or pasturing the livestock and any trespass fees and damages assessed
under Sec. 161.19 and/or other damages caused by the animal.
(6) The Area Director shall return erroneously impounded livestock
to the residence of the rightful owner and shall waive all expenses.
(7) Livestock not redeemed before the time fixed for their sale
shall be sold at a public sale or auction to the highest bidder,
provided the bid is at or above the minimum amount set by the Area
Director and the Navajo Nation.
(8) The proceeds of any sale of impounded livestock shall be
applied in the following order:
(i) Toward the payment of all expenses incurred by the Area
Director in gathering, impounding and feeding or pasturing the
livestock; and
(ii) Toward the payment of any penalties or damages assessed
pursuant to Sec. 161.19.
(9) Any proceeds remaining after payment of the two items in
paragraphs (c)(8) (i) and (ii) of this section and not claimed within
one year from the date
[[Page 55511]]
of sale shall be credited to a special fund for the Navajo Partitioned
Land.
Sec. 161.21 Controlling livestock disease and parasites.
Whenever livestock are exposed to or become infected with
contagious or infectious diseases or parasites the owner must treat the
livestock and restrict their movement in accordance with applicable
laws.
Sec. 161.22 Procedures for Navajo Nation concurrence.
(a) Subject to the Secretary's authority and except where indicated
otherwise, the Navajo Nation has the right to consult with the Area
Director and concur in the establishment of range units, range
management plans, and special management areas.
(b) For any action requiring the concurrence of the Navajo Nation,
the following procedures shall apply:
(1) Unless a longer time is specified in a particular section of
the regulations in this part, or unless the Area Director grants an
extension of time, the Navajo Nation shall have 35 days to review and
concur with the proposed action.
(2) If the Navajo Nation concurs in writing with all or part of the
Area Director's proposed action, then the action or a portion of it may
be immediately implemented.
(3) If the Navajo Nation does not concur with all or part of the
proposed action within 35 days the Area Director shall submit to the
Navajo Nation a written declaration of non-concurrence. The Area
Director shall then notify the Navajo Nation in writing of a formal
hearing to be held not sooner than 30 days from the date of the non-
concurrence declaration.
(4) The formal hearing on non-concurrence will permit the
submission of written evidence and argument concerning the proposal.
The Area Director shall take minutes of the hearing. Following the
hearing, the Area Director may amend, alter, or otherwise change his/
her proposed action. If, following a hearing, the Area Director alters
or amends portions of his/her proposed plan of action, he/she shall
submit the altered or amended portions of the plan to the Navajo Nation
for its concurrence.
(5) If the Navajo Nation fails or refuses to give its concurrence
to the proposal at the hearing, the Area Director may implement the
proposal only after issuing a written order, based upon findings of
fact, that the proposed action is necessary to protect the land
pursuant to his/her responsibilities under the Settlement Act.
Sec. 161.23 How to appeal decisions on grazing permits.
Appeals of decisions issued under this part will be in accordance
with procedures in 25 CFR part 2.
Sec. 161.24 Information collection.
The information collection requirement(s) contained in the
regulations in this part do not require approval by the Office of
Management and Budget under 44 U.S.C. 3501-3520.
Editorial Note: This document was received at the Office of the
Federal Register on October 24, 1995.
Dated: February 3, 1995.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 95-26686 Filed 10-31-95; 8:45 am]
BILLING CODE 4310-02-P
