Comment on FR Doc # E8-29671

RE: Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Quino Checkerspot Butterfly (Euphydryas editha quino) The Ramona Band of Cahuilla Indians, a federally recognized Indian nation located in Riverside County, California, is submitting this letter in response to the proposed delineation of critical habitat for the Quino Checkerspot Butterfly. The Ramona Band of Cahuilla Indians is concerned with the proposed delineation with regards to the following: • Designating Tribal lands as critical habitat • Failure to consult with the Ramona Band of Cahuilla Indians prior to issuance of the proposed designation of critical habitat in the Federal Register on January 17, 2008 • Designating critical habitat in violation of the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) • Proposed Critical Habitat will have a major economic burden for the Ramona Band of Cahuilla The revised designation of critical habitat defies Secretarial Order No. 3206 (DOI) American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act. Secretarial Order No. 3206 was adopted in part to ensure, “that Indian tribes do not bear a disproportionate burden for the conservation of listed species.” As proposed, the Ramona Band of Cahuilla Indians believes that the designation of critical habitat would negatively impact and burden Indian tribes. Designating Tribal lands, specifically the lands of the Campo Band of Kumeyaay, Cahuilla Band of Mission Indians, and the Ramona Band of Cahuilla Indians as critical habitat constitutes a significant burden to these Tribes. Designating these lands as critical habitat would also comprise an unwanted intrusion into tribal affairs. Each of these would violate the spirit and intent of Secretarial Order No. 3206 and should be considered a violation of the trust responsibility the United States government owes to “Indian tribes and tribal members and the government- to-government relationship in dealing with tribes”. Secretarial Order No. 3206, at Principle 3 (C) further requires that “the Departments, in keeping with the trust responsibility and government-to- government relationships, shall consult with affected tribes and provide written notice to them of the intended (conservation) restrictions as far in advance as practicable.” In the case of the Ramona Band of Cahuilla Indians, this did not happen. No consultation with the Ramona Band of Cahuilla Indians occurred prior to the notice of the revised designation in the Federal Register. The proposed revised designation of critical habitat would have an impact on lands of owned in fee by the Ramona Band of Cahuilla Indians. Additionally, property proposed for critical habitat lies adjacent and/or near tribal lands. Each of these circumstances should have triggered the provisions contained within Principle 3(C) requiring consultation in accordance with the trust responsibility and government- to-government relations. In addition, Principle 3(B) of Secretarial Order No. 3206 acknowledges that “Indian tribes value, and exercise responsibilities for, management of Indian lands and tribal trust resources. In keeping with the federal policy of promoting tribal self- government, the Departments shall respect the exercise of tribal sovereignty over the management of Indian lands, and tribal trust resources. Accordingly, the Departments shall give deference to tribal conservation and management plans for tribal trust resources that: (a) govern activities on Indian lands, including, for the purposes of this section, tribally-owned fee lands,… (and) (t)he Departments shall conduct government-to-government consultations to discuss the extent to which tribal resource management plans for tribal trust resources outside Indian lands can be incorporated into actions to address the conservation needs of listed species.” The mandate to conduct government-to-government consultations, in accordance with the Secretarial Order, regarding the revised designation of critical habitat should have occurred as land proposed for critical habitat includes tribally-owned fee lands of the Ramona Band of Cahuilla Indians. Consultation with the Departments regarding the revised designation did not occur prior to publication in the Federal Register - a violation of the Secretarial Order. To date, the only consultation that has occurred took place after the Department realized that Tribal lands would be affected by the proposed revised designation and the Ramona Band of Cahuilla Indians would be subjected to negative economic and other impacts as a result of the revised designation. Furthermore, the revised designation of critical habitat has the potential to impact existing and future plans regarding the infrastructure and social services of the Ramona Band of Cahuilla Indians. Land considered for designation of critical habitat is adjacent to the only road which allows access to and from the Ramona Indian Reservation. The road is critical to the health and safety of the Ramona Band of Cahuilla Indians. Any action to designate critical habitat adjacent to or near the Ramona Indian Reservation and/or the only road which provides access to the Ramona Indian Reservation, without first conducting government-to- government consultation, would violate Secretarial Order No. 3206 as it could be considered a restriction that discriminates against Indian activities. Moreover, designating critical habitat adjacent to the Tribe’s only access to and from the Ramona Indian Reservation could potentially impact a proposed project to pave the existing dirt road to make it more usable for tribal members and health and safety service responders (i.e. Riverside County Sherriff, local and regional fire departments, etc.). A delay in the project or denial of permits to build the project as a result of designating lands adjacent to the road as critical habitat could cost the Tribe over $1 million dollars in funds already allocated to build the project. And, over the life of the road, the Tribe would have to spend hundreds of thousands more in upkeep and maintenance if the road is not paved over. In addition, the Ramona Band of Cahuilla Indians opposes the proposed designation of critical habitat as it is in violation of the Multi-Species Habitat Conservation Plan (“MSHCP”). The MSHCP has already delineated critical habitat for the Quino Checkerspot Butterfly, and the MSHCP adequately provides designated lands for the survival and recovery of the Quino Checkerspot Butterfly. In fact, with regards to designating additional lands, provisions of sections 6.9 of the MSHCP and section 14.10 of the associated Implementing Agreement, “no critical habitat for the Quino Checkerspot Butterfly should be designated in the MSHCP Plan Area”. In as much as the proposed lands in question may be adjacent to or near the Ramona Indian Reservation; may be excluded under the MSHCP as critical habitat; and/or may be lands within the boundaries of the MSHCP which will not be designated as critical habitat as per the Implementing Agreement, the Ramona Band of Cahuilla Indians opposes the proposal to designate critical habitat for the Quino Checkerspot Butterfly. Finally, the Department did not properly consult the Ramona Band of Cahuilla regarding the proposed critical habitat. The Department’s failure to properly notify and consult caused the Tribe to be left out the Economic Analysis of Critical Habitat Designation for the Quino Checkerspot Butterfly. As stated above, the proposed critical habitat will have a major economic development burden for the Tribe. Proposing critical habitat will set back a current project the Tribe is working on with the United States Forest Service and other federal agencies. The total cost of this project nearly $1.5 Million dollars. Proposing critical habitat adjacent to the proposed project’s areas of potential effects will increase the cost of the project; may lead to a delay in starting and completing the project; and could kill the project altogether. The Ramona Band of Cahuilla Indians requests that the Department (i)withdraw all Tribal lands from those identified for the proposed designation of critical habitat; (ii) consult with the Ramona Band of Cahuilla Indians and other tribal nations to address the economic and social impacts the proposed designation of critical habitat would have on Tribal lands, Tribal infrastructure, Tribal health and safety, and proposed projects that would further the Tribe’s health, welfare, and self- reliance; (iii) consult with potentially affected tribal nations as per Secretarial Order No. 3206, and (iv) issue a revised proposal based on mandated government- to-government consultation with affected the Tribe and tribal nations. If the Department opts to deny the Ramona Band of Cahuilla Indians’ requests and proceeds with the proposed designation of critical habitat, such action would violate Secretarial Order No. 3206 and the MSHCP. It would also be considered a violation of the Department’s trust responsibility and show complete disregard for the government-to-government relationship which exists between the United States and the Ramona Band of Cahuilla Indians. The Reservation Transportation Authority and the 20 member tribal governments support the Ramona Band of Cahuilla Indians concerning this letter.