0V FINES: 25¢ per W per it. RETURNIHS LIBRARY MATERIALS: M Place in book return to mve charge fro- circulation "cords 2‘8} 8153 THE INDIAN LANDS STUDY: AN EXAMPLE OF THE APPLICATION OF GEOGRAPHIC RESEARCH TO THE ANALYSIS OF COMPLEX ENERGY AND ENVIRONMENTAL POLICY ISSUES BY Douglas Burton Richardson A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Department of Geography 1980 ABSTRACT THE INDIAN LANDS STUDY: AN EXAMPLE OF THE APPLICATION OF GEOGRAPHIC RESEARCH TO THE ANALYSIS OF COMPLEX ENERGY AND ENVIRONMENTAL POLICY ISSUES BY Douglas Burton Richardson The Indian Lands Study - a massive $700,000 research effort mandated by the U.S. Congress under the Surface Mining Act of 1977 - represents a unique and highly signi- ficant contribution to contemporary American Indian scholar- ship and to the understanding of current national energy and environmental policy issues. Indian tribes own and produce a substantial portion of the nation's strippable energy resources. In the aggregate, they own approximately 30% of the low—sulphur strippable coal west of the Mississippi River, and several of the top producing sur- face coal mines are located on Indian lands. Mineral resources are among the few significant econo- mic assets the tribes possess. The need for income and the possibility that more viable economies can be based on mining and related activities provide strong incentives to exploit these resources. These incentives are reinforced by the cur- rent energy crisis and its emphasis on expanding the nation's energy supply. At the same time, there are important reasons to proceed cautiously. Most reservations are located in environmentally sensitive areas with ecosystems which, once disturbed, are often difficult to restore to their historically-achieved levels of productivity. The Indian Lands Study combines several major research tOpics and cuts across a wide range of geographic subfields in the analysis of numerous policy and land use planning issues related to controlling the environmental impacts and changes which accompany large scale surface mining on Indian lands. The spatial area encompassed by the project includes all twenty-five Indian reservations in the United States which are known to contain coal resources. The subject matter of the study ranged from the physical land- scapes of those areas to their political and cultural en- vironments to their interaction with the larger, national region in two key areas--the guest for an expanded energy supply, and the need to prevent environmental damage and degradation. The Study's final report, entitled The Control and Reclamation of Surface Mining on Indian Lands, brings together for the first time a: comprehensive set of data on the contemporary North American Indian setting, and in so doing addresses an important range of the key energy- related issues confronting tribes in their modern environ- ment. To Everett and Dorothy Richardson, to Kate Young, and to Suzanne Rodbell. ii ACKNOWLEDGEMENTS Many peOple deserve thanks for the assistance and support they have provided during my graduate studies at Michigan State University. Professors Daniel Jacobson, Ian Matley, Henry Foth, Harold Winters, Gary Manson and Lawrence Sommers all provided particularly sustaining con- tributions of guidance, encouragement, insight and pro- fessional example, which are greatly appreciated. Special acknowledgement for assistance on the Indian Lands Study itself is also due to many others. Foremost among them are the participating tribal chairmen and their representatives, who took time from the pressing work and many critical issues which face energy resource tribes today, to help make this study one of the most comprehensive, in terms of direct tribal involvement, of recent years. These tribal chairmen, and the many others who contributed to the study are further acknowledged in the Foreword section of the study's final report, The Control and Reclamation of Surface Mining on Indian Lands, which is appended and to which the reader is referred. Finally, I would like to express an appreciation that goes beyond professional acknowledgement to my major iii professor and the chairman of my graduate committee, Dr. Georg Borgstrom. The opportunity to work closely with Dr. Borgstrom has deeply affected my own work and professional development; and I am indebted to him both for this opportunity and for the example of scholarship, integrity, and humanity which is embodied in his own life and work. iv TABLE OF CONTENTS INTRODUCTION COICOIOOOOOOOOOOOOOOOOOO ...... 0.... 1 BACKGROUND TO THE STUDY ........ ....... ......... 4 The Significance of Mining on Indian Lands OOOOOOIOOOOOOOOOI ...... 0...... 4 The Surface Mining Act and the Indian Lands Study ............. ........... 5 KEY GEOGRAPHICAL ASPECTS OF THE INDIAN MNDS STUDY .0..CCOOQOCCOOOOOOOOIOOCO0......0..O 7 THE STRUCTURE AND PROCESS OF THE INDIAN LANDS STUDY ......... .................... 14 section I: The Act OOOOOOOOOOOOOOOOOOOOO 14 Section II: The Regulatory Setting ...... 16 Section III: Alternative Models and Tribal Recommendations for Surface Mining on Indian Lands OOOOOOOOOOOOOOOO 25 NOTES .0.0.0....0...0.0...OOOOOOOOOOOOOOOOOOOOO 30 APPENDIX: The Control and Reclamation of Surface Mining on Indian Lands ...... 31 THE INDIAN LANDS STUDY: AN EXAMPLE OF THE APPLICATION OF GEOGRAPHIC RESEARCH TO THE ANALYSIS OF COMPLEX ENERGY AND ENVIRONMENTAL POLICY ISSUES INTRODUCTION The Indian Lands Study--a $700,000 research effort mandated by the U.S. Congress under the Surface Mining Act1 of 1977--represents a unique and highly significant contri- bution to contemporary American Indian scholarship and to the understanding of current national energy and environ- mental policy issues. The study's final report, entitled The Control and Reclamation of Surface Mining on Indian Lands, has been called a landmark document. It brings together for the first time a comprehensive set of data on the contemporary North American Indian setting, and in so doing addresses an important range of the key issues confronting tribes in their modern environment. Peter MacDonald, Chairman of the Navaho Tribe, has characterized the dilemma and the challenge which faces the American Indian today as follows: We Native Americans face many problems as we try to survive, shape our own destiny and preserve our own culture and traditions. Under our lands lie vast energy resources...We wish to develop these resources in a way that will permit us, and our children, to live without having to be dependent on others. We wish to create industries on our reservations that will in turn create jobs, so that, in time we can attain economic security for our people. But if we are to sell our resources, the only fair 2 price is that which will ensure a legacy to bequeath to our children when our energy re- sources are gone. We must also protect the viability of our land to ensure that our child- ren inherit more than the spoils of misguided and wasteful resource extraction. Economic development, self-determination, environmental protection are our goals. To attain our goals--and to further our nation's energy goals—-we must now reach out to the world beyond our reservations, offering our cooperation and soliciting understanding of 2 the Indian's role in the future of our country. It is this context and this challenge which the Indian Lands Study explores. The study of these issues was provided for by a special section of the national Surface Mining Act passed by Congress in 1977. This mandate represented the first time that an environmental law of general applicability directly addressed the issues of the relationship of its provisions to Indian lands and communities, and of how its goals might be adapted and implemented within the context of this unique setting. Moreover, this was the first instance in which the Indian tribes to be affected participated in the study and deter- mination of these issues. Consequently, the tribes involved in the study viewed it as both intrinsically important and also as a potentially significant precedent for future legis- lation in the area of resource development. Allen Rowland, Chairman of the coal-rich Northern Cheyenne Tribe, emphasized this point when he stated that: Since this is the first time tribes have achieved a legislative mandate to substantially participate in a study of this kind, the precedent which is set...will be an important one for tribes, and for their on-going efforts to achieve similar 3 mandates in Sorthcoming natural resources legislation. The report produced by the Indian Lands Study analyzes a wide range of issues and topics related to energy and natural resources development by Indian tribes. New data was compiled covering such areas as: the mineral resources they are known to possess; the environments they inhabit; their political and cultural institutions which are related to resource development and environmental protection; and, their considered and communally developed attitudes with respect to resource management and development. The collec- tion of these data is an achievement in itself. The existence of this data base now makes possible the meaningful analysis of many new issues which confront tribes in their contemporary environment, the undertaking of further research in many related areas, and the application of some of the fruits of this study to other specific areas such as land use planning. The study also goes beyond the collection of data to provide the first thorough analysis of the options available to the tribes with respect to the regulation of mineral re- source exploitation. It considers the requirements imposed by the Surface Mining Act, the governmental experience of the tribes, the professional expertise they possess or could develop, and the cultural institutions and factors which are likely to have a significant impact on the development and management of tribal mineral resources. And, in the process of carrying out the project, many difficult policy issues were raised and explored. 4 In the years ahead, as the nation attempts to develop new and larger energy resources, many choices will have to be made. A number of these decisions will affect the ways in which people live and the environments they live in; they will affect various aspects of the man-land relation- ship. The Indian Lands Study has helped to identify and clarify some of these issues and choices for Indian lands; it is hoped it will aid in the process of making and imple- menting informed and rational decisions in these same areas. BACKGROUND TO THE STUDY The Significance of Mining on Indian Lands Indian tribes own and produce a substantial portion of the nation's strippable energy resources. In the aggregate, they own approximately 30% of the low-sulphur strippable coal west of the Mississippi River, and several of the top producing surface coal mines are located on Indian lands. In addition, estimates indicate that Indian tribes own up to 50% of the country's known uranium deposits, much of which is situated in strippable deposits. Mineral resources are one of the few significant economic assets the tribes possess. The need for income and the possibility that more viable tribal economies can be based on mining and related activities provide strong incentives to eXploit theSe resources. These incentives are reinforced by the current energy crisis and its emphasis on expanding the nation's energy supply. 5 At the same time, there are important reasons to proceed cautiously, and to emphasize the use of environmentally sound techniques and reclamation measures. Most reservations are located in environmentally sensitive areas, with eco- systems which, once disturbed, are often difficult to restore to their historically achieved levels of productivity. Difficult as it is, reclamation may assume even more impor— tance to the Indian tribes than to many other land owners, however. Mining operations often consume sizeable portions of the limited amounts of land tribes possess, thus reducing the land base available for other activities or forms of development. Moreover, the frequently observable cultural factors which emphasize the value of the land and of the natural environment-~traditional man-land relationships of the Indians--often increase the importance of restoring mined lands to the highest possible stage of productivity. Confronted with these factors the tribes recognize the need to develop programs to plan for and control surface mining activities on their lands. The Surface Mining Act and the Indian Lands Study Prior to the enactment of the Surface Mining Control and Reclamation Act of 1977, the regulation cf mining operations was comprised of a patchwork of standards and procedures which varied considerably among states, federal lands, and Indian lands. The passage of the Act mandated significant changes in this area. For the first time, mini- mum national environmental standards must be met during and 6 after the completion of all surface mining operations. The Act sets up a system of regulatory standards and procedures to be employed in the process of meeting these environmental requirements. In addition, the Surface Mining Act provides for a greater degree of public involvement in the regulatory process than had previously been the case. The Act also distinguishes between Indian lands and other jurisdictional areas to which it applies, and allows for the possibility of Indian tribes assuming regulatory authority over mining activities on their lands. During the last few decades, several tribes have shown increasing concern about the possible transformation of their lands into massive strip mining operations--and about the environmental degradation so often attendant on them. These tribes recognized the need for environmental performance standards and strong enforcement mechanisms to minimize the undesirable effects of large-scale mining operations, and some have exercised their existing powers to limit or curtail mining operations. The tribes' concern about the consequences of mining on their lands was a factor in the drafting of Section 710 of the Surface Mining Act. It is this section which calls for a major national study of mining on Indian lands. One of the goals of this "Indian Lands Study" is to assist in the develop- ment of "proposed legislation designed to allow Indian tribes to elect to assume full regulatory authority over the admin- istration and enforcement of surface mining of coal on Indian lands." 7 In September, l978,the Office of Surface Mining of the Department of the Interior awarded a contract for the full $700,000 allocated in the Surface Mining Act for the Indian Lands Study to the Council of Energy Resource Tribes (CERT). During the course of the following year, CERT, in conjunction with the 25 coal-owning tribes and with concerted input from six major coal-owning tribes, conducted a wide-ranging and intensive study of issues pertaining to the regulation of surface mining on Indian lands.* Separate field research stations, staffed by tribal members, were organized on the six major coal-owning reserva- tions to assist with data collection and the identification of key issues. Throughout the course of the study, frequent national meetings and workshops were held with the affected tribes. At these meetings, representatives of all 25 coal- owning tribes discussed major aspects of the study, provided input and guidance, considered special issues and possible recommendations for the regulatory program on Indian lands, and eventually unanimously endorsed a set of seven core recommendations for future Indian lands legislation. KEY GEOGRAPHICAL ASPECTS OF THE INDIAN LANDS STUDY The Indian Lands Study combines several major research topics and cuts across a wide range of geographic subfields. The study's integrative nature is itself gedgraphic, and its .* The Principal Investigator and Director of the overall study effort was Douglas Richardson, a geOgrapher who had initiated work on these and similar issues previously for the Northern Cheyenne Research ProjeCt in Montana. 8 comprehensiveness affords numerous opportunities to apply existing geographical knowledge to a new area, to test theories, and to structure additional data subsets and theories. The spatial area encompassed by the project includes all twenty-five Indian reservations in the United States which are known to contain coal resources. The subject matter ranged from the physical environments of these areas to their political and cultural environments to their interaction with the larger, national region in two key areas--the quest for an expanded energy supply, and the need to prevent environ- mental damage and degradation. This broad scope coupled with the large-scale data collection effort made it possible for patterns of similarity and diversity among the tribes to emerge clearly-~a result which would not have been possible in a smaller scale study or in one which involved a more limited collection of data. Moreover, these features of the study make possible comparisons between this group of eco—‘ systems and others which have been or can be studied in a similar manner. The study's fundamental focus is on man's relationship to the land which, in the case of the affected tribes, also involves a unique cultural landscape. Within this context, the major topic addressed--large scale surface mining-- presents a variety of challenging issues which are particu- larlygeographic in nature. For instance, surface mining-~a dramatic illustration of man's role in changing the face of 9 the earth--often brings with it disruptions to the landscape which run the full gamut of geographic Specialties on the continuum between physical and cultural geography. Carried out on a large scale, surface mining has often resulted in drastic changes to an area's geology, landforms, and soils. It has also produced major changes in vegetation, surface and ground water, air quality, and agriculture. The physical changes in themselves are of interest to researchers attempt- ing to predict impacts to a region's environment, to identify interactive relationships among environmental factors, or to compare environmental features and changes among regions. In addition, there are what might be considered second level changes resulting from surface mining--changes which present a variety of research problems, particularly for geographers interested in relationships between physical and cultural landscapes. Within this second order of changes are disruptions to and adaptations of societal systems and institutions-~political, economic, social, and cultural. At a minimum, large-scale surface mining introduces a new use for a certain portion of the area's land-base, and some new societal relationships. Because of its integrative approach and its focus on man-environment relationships, geoqraphy, as a discipline, is particularly well-suited to deal with the complex planning and policy issues related to surface mining. The fact that Indian tribes also occupy distinct cultural and socioeconomic niches in their regions adds yet another layer of compleXity and geOgraphic intereSt to the study of surface mining on Indian lands. 10 The Indian Lands Study addresses a wide range of policy and planning issues related to controlling the environmental impacts and changes which accompany large scale surface mining. The experiences and recommendations of the tribes demonstrate some of the ways in which communities can plan for the introduction of mining so as to minimize its disruptive effects, as well as some of the measures which communities might take to limit the disruptive impacts once they have made themselves known. This information should have applica- bility to future land use planning efforts. In many ways, the Indian Lands Study process itself represents a type of land use planning on a large scale. In order to be effective, good land use planning must include the following features: (1) bring together necessary data, (2) present a coherent range of options, well analyzed, (3) involve the affected population in the decision—making process, and (4) follow the research through to its policy implications --all features which characterize various key phases of the Indian Lands Study process. The study's orientation toward the contemporary Indian geographic setting is also somewhat distinctive. Much geo- graphic and general scholarly research on Indian tribes focuses on Indian traditions; many studies of Indian society and culture stress how tribes have moved away from their presumed cultural foundations. The Indian Lands Study considered evolutionary features of Indian customs and insti- tutions, but did so from the perspective of better under- standing how they function today. As a result, the study 11 report holds an almost unique place in the literature on the North American Indian. It is one of the few comprehensive studies undertaken from a contemporary perspective, utilizing an original, contemporary data base, and directly addressing the critical emerging issues of mineral resource development on Indian lands. The Indian Lands Study also stressed direct participation of the tribes in the project. To a very large extent, the accuracy and comprehensiveness of the data collection effort undertaken by the study rested upon the direct relationship that was established between the needs of the tribes and the policy implications which are inherent in the research. The tribes' awareness of the importance of the research to their own needs, and the close interactive working relationship which was developed during the course of the study allowed for far greater cooperation and access to significant tribal data than would otherwise have been the case. In fact, this type of research--on these topics and on this scale--simply could not have been done exclusively from the outside. Increasingly, tribes have become justifiably guarded about their interactions with outside researchers. They have too often seen distortions or stereotypes of their way of life emerge as academic or scholarly research. A recurrent theme of Indian tribal interaction with outside researchers during the past decade has been a strong tribal concern for protecting physical, social and cultural proprie- tary data, as well as a rejeCtion of thOse outside interpre- tations of tribal institutions or societies which do not 12 incorporate tribal perspectives, values and goals into their analyses. Therefore, if they are to be effective, geographers and others who intend to do research or planning work with Indian tribes today must be able to demonstrate to tribes the significance and usefulness of their work. Quality research will require it, for perhaps in no other U.S. geographic area are existing data sources (including particularly U.S. Government sources) as notoriously inadequate as those which pertain to Indian reservations. Thus, in most cases, if their data and analyses are to be meaningful, geographers conducting research on American Indian issues will need to develop direct links with the tribes. The Indian Lands Study also deals with several complex geographic issues bearing directly on national energy policy needs. The national energy crisis can only be resolved through a combination of conservation and expanded supply. Increased use of coal is an important part of the effort to expand energy supplies, and within this area there is a premium attached to the use of low-sulfur coal, becuase it minimizes the resultant air pollution. Thus, the tribes involved in the Indian Landsttudy are in a key position with respect to the achievement of a more adequate national energy supply as large-scale owners of strippable, low-sulfur coal. The intricacies of this position, juxtaposing tribal interests in mining and selling their coal with concern for environ- mental and socio-cultural conditions, and with tribal re- lationships to the larger.COmmunities of: 1) potential users of their coal; and 2) the nation--or at least the federal 13 government--as advocate of increased domestic energy supplies give rise to a multitude of research topics of geographical import. For example, tribal relationships with their physical environment-~and their concern for the quality of that environ- menté-are in themselves important issues. In contrast to much of the more mobile general population, Indian tribes have significant cultural attachments to their reservation lands. The reservations are homelands to be preserved and protected, and they are too limited in size for the surface mineable portions to be ignored or written off. Their communities are comparatively small and unindustrialized. Subsistence grazing and agriculture are important to the local economy and are often the dominant land uSe. In contrast to this, in most states where surface mining is now being carried on or is planned for the future, the bulk of the population generally does not live on or center their communal lives on surface mineable lands. Distinctions such as these are im- portant factors to consider during the policy and land use planning stages of a national mineral regulatory program for Indian lands. The Indian Lands Study carried its congressional mandate through to the production of a set of major policy recommenda- tions for regulatory programs on Indian lands. These recommendations articulate real needs of the tribes as well as the needs of national energy policy, while at the same time addressing positively the substantial issues of environmental 14 protection. These legislative recommendations--which were included in the study report and submitted to the Interior Department for transmission to the Congress in the form of draft legislation--have critical implications for the geo- graphy of energy development on Indian reservations and, consequently for the implementation of national energy policies. THE STRUCTURE AND PROCESS OF THE INDIAN LANDS STUDY The scope of the Indian Lands Study and the interactive nature of its parts are illustrated in the following section, which considers the structure and process of the research effort undertaken in the study, and highlights some of the issues which were addressed in the course of the project. The study design involved three major research segments. In the first, the focus was on the general objectives of the Surface Mining Act and the ways in which these mesh with the existing array of controls affecting mining on Indian lands. The second part of the study centered on the reservation setting, and analyzed a range of factors relevant to mineral resource development on these lands. And, in the third phase of the project, alternative models for the control and re- clamation of surface mining on Indian lands were formulated and considered in light of the analyses which had been done preViously. 'SeCtiOn I: The ACt The first phase of the study focused on the provisions of the Surface Mining Act and related statutes as they affect 15 mining control and reclamation on Indian lands. In it, the general objectives at which the Act aims and the ways in which they are to be achieved on state and federal lands are detailed. The Surface Mining Act does not afford much flexibility in the environmental standards it sets; a mining operation must achieve and a regulatory agency must enforce these standards or exceed them. However, considerable allowance is made for variations in the way a regulatory agency is constituted and in the procedures it follows. These provisions were analyzed in detail during the early stages of the project in order to delimit and clarify the framework for subsequent tasks. Within this first section, Chapter 1 discusses the provisions of the Surface Mining Act in the context of general regulatory schema for Indian lands. At present, there is a unique mix of regulatory agencies exercising jurisdiction on Indian lands: the tribal governments; the tribes' trustee, the Department of the Interior; and those federal agencies responsible for implementing laws "of general applicability." Like other environmental laws, the Surface Mining Act relies on four mechanisms to accomplish its objectives: (1) a planning process; (2) performance standards; (3) a permit system; and (4) enforcement measures; The purpose of the planning process is to identify and designate lands which are unsuitable for surfacemining. The performance standards are designed to ensure that all mining operations, after the law takes effedt, are conducted and reclaimed in an environ— mentally sound manner. 16 The technical, planning, and interactive man-land relationships which are the focus of many of the require- ments of the Act-—and which were discussed in Chapters 1 and 2 of the Indian Lands Study Report-—should make this law a policy area of key concern to geographers. A number of its procedures, concepts, and processes open up areas which are ripe for geographical research and application. Examples include the Act's planning procedures and its provisions relating to mining on alluvial valley floors, the restoration of mined areas to their approximate original contours, and those sections dealing with hydrologic balance and with top- soil stratification and replacement. After having analyzed the general objectives and require- ments of the Act, the focus of the research shifted to the construction of an initial regulatory program model based on existing state and federal program requirements. These program requirements, referred to as the State Model, were analyzed in Chapter 2 and served as a starting point or reference model for the tribal analyses of alternative regulatory options. In analysing the requirements a regulatory agency must meet, eight core program areas of the Act were delineated in order to provide the tribes with a convenient and common frame- work for discussion and analysis of the complex criteria. Section II: The Regulatory Setting The second section of the study report focused on the Indian lands setting within which regulation under the Act will take place. In this phase of the study, a wide range 17 of topics relevant to the potential regulatory setting were studied, and a great deal of new and important data was brought together for the first time for use in the analysis of mine reclamation issues and options. The first aspect of the setting which was considered was the physical setting of the Indian reservations. Data was collected concerning the geological and ecological con- ditions of Indian lands, and an overview of these features, accompanied by a series of maps was presented to the tribes for review. It was noted that tribal coal lands in the western United States share the common characteristics of generally poorly developed soils over usually flat-lying to slightly dipping sedimentary rocks, and are located in a semi- arid climate. Within the generally common themes of bedrock geology and arid climate, the twenty-five reservations with which the study is concerned exhibited many variations of landforms, soil types, and vegetation. Grazing for livestock was the dominant land use on most tribal coal lands, but the carrying capacities of the lands varied considerably. For study purposes, tribal coal lands were grouped into three major coal regions: the Northern Great Plains (nine reservations); Rocky Mountain (twelve reservations); and Interior (four reservations). Of the twenty-five tribes par- ticipating in the study, eight had coal deposits which are currently being mined or in which the coal industry has expreSsed strong intereSt in mining, and three others had known coal or lignitedeposits of more limited current 18 commercial interest to the coal industry. The remaining fourteen tribes are located in areas in which coal or lignite is known or can be expected to be found, but which are of limited or uncertain value at the present time. The special ecological problems of western coal mine reclamation were also addressed. Extensive surface mining and systematic attempts to reclaim mined lands in the western United States have only been undertaken in the last seven or eight years. Thus far, reclamation practices have demonstra- ted that revegetation can achieve short term stability against wind and water erosion, but from the perspective of the longer term, the success of current practices must still be viewed as experimental. The study emphasized that the potential for reclamation of surface-mined land in the west is highly site-specific, and the development of mining and reclamation practices at individual locations will have to be based on a number of specific factors. Careful pre-mining environmental assess- ments of proposed sites and detailed planning of mining operations, as required by the Surface Mining Act, were cited as important factors which, when combined with continued re- search, should enhance the prospects of meeting the difficul- ties inherent in reclaiming mined lands in the west. The analysis stressed, however, that it may be some years before the establishment of a viable, progreSSive, self-regenerating ecosystem on reclaimed lands can be achieVed, as required by the Act. 19 After first considering the physical landscape, Phase II of the study then turned to the analysis of the unique insti- tutional setting within which the regulation of surface mining on Indian lands takes place. Indian tribal govern- ments differ from federal, state, and local governments in several important respects, including the scope of their authority, their structures, and in their role in managing community affairs. The powers of Indian tribes to regulate surface mining activities stem from their well-established status as semi- dependent sovereign nations that possess an inherent right to self-government. Historically, the recognition of tribes as quasi-sovereign entities dates back to their contacts with British, French and Spanish explorers in the 1500's. Treaties negotiated with these countries, particularly during the colonial wars of the Eighteenth Century, reaffirmed the recognition of the tribes' sovereign status. Treaties signed with the United States during and after the Revolutionary War also regarded Indian tribes as "distinct, independent, polit- ical communities" under the protection of the U.S. government. Thus, the current forms and powers of tribal governments have resulted from a series of interactions between the Indians and the United States Government over the course of the past two centuries. The many changes in the tribal land bases which were imposed on the Indians during this time, the social and geoqraphical.conSOlidation of tribes, and the frequently prevailing assumption that the Indians should be "civilized” or assimilated into the general population had 20 far—reaching implications, some of which continue to influence tribal political and cultural institutions and attitudes. These factors currently have significant effects on the development of tribal resources generally, and the control of mining in particular. Both the historical influence and current significance of these factors are areas which have great potential for further comparative political and cultural geographical research. Because of these special characteristics of tribal governmental institutions, there are several areas in which a national Indian mine regulatory program would need to accomodate certain structural differences among tribal governments, and would also need to devise approaches which vary from those designed for states. The structures and basic functions and powers of the governments of the twenty-five tribes which participated in this study are described and compared in Chapter 4, and their salient features are summarized in a series of detailed tables and charts. Chapter 4 also documents recent trends in the area of mineral development activity by tribal governments, and provides data and analyses which should have considerable application to future rural land use planning efforts by the tribes. The nature of Indian judicial systems is also of partic- ular importance to mining on Indian lands in view of the many potential decisions of a regulatory agency which are subject to judicial reView and appeal. The Surface Mining Act designates thOse courts which have jurisdiction over appeals 21 of decisions of state and federal agencies. Legislation concerning an Indian lands regulatory program would have to take into account the special role of tribal court systems-- a role which currently preserves a delicate balance between contemporary legal requirements and traditional Indian cultural values. Phase II of the research effort therefore also undertook an analysis of Indian judicial institutions. Chapter 5 of the study report describes the historical evolution of tribal judicial concepts, provides an analysis of the present formu- lation of reservation court systems, and explores some of the more significant issues presently confronting those courts. The notion that disputes relating to Indian lands should be resolved by organs of the tribe under principles of tribal law is fundamental to all American Indian tribes. Tribal judicial systems pre-date the arrival of European institutions in America, and tribal judicial authority has typically rested in communal councils which adjudicated disputes on the basis of consensus and religious principles. From the outset, the United States government recognized the autonomy of each Indian tribe over its own affairs and territory--and implicit in that recognition was an acknowledgement of the tribal courts' jurisdiction over Indian affairs and territory. The major changes which have occurred in tribal judicial systems over the course of the past two centuries largely parallel' those which_have occurred in other Indian govern- mental institutions. Not surprisingly, the merging of tribes 22 whose judicial systems and traditions differed as did their cultures, the removal of tribes from their traditional lands with the resultant disruption of long-standing man-land relationships, and the intermittent attempts to encourage or to force tribes to adopt European judicial forms had signifi- cant effects on Indian judicial practices. Today, Indian judicial systems are composities of traditional tribal in- stitutions and Anglo-American models, reflecting both the impacts of federal Indian policies and the endurance of some traditional tribal judicial concepts and practices. After examining the structures of Indian courts and the ways in which they function, the study then considered existing tribal laws and regulations which are relevant to natural resource management. Indian tribes have exhibited a strong interest in regulating natural resource activities on their reservations for some time, and, in recent years, have established codes, regulations, and agencies to administer them in a number of areas. From the perspective of assuming larger regulatory functions under the Act, the past experi- ence of the tribes in regulating mining, their existing laws, regulations, and administrative apparatus, and their current activities in analogous natural resource areas are all rele- vant. The study affirmed that a number of tribes have had significant administrative and regulatory experience of types that would be relevant to the tasks required of a regulatory agency under the Surface Mining Act. In researching this question, a large amount of data releVant to land use 23 planning and natural resource management was collected from the tribes and compiled for comparative analysis in Chapter 6 of the study report. Effective regulation of surface mining also requires that the regulatory agency possess a physical resource data base and information system. In order to properly evaluate permit applications, mining and reclamation plans, to identify and designate specific sites as potentially unsuitable for mining, or to reclaim abandoned mined lands such data must be available. Therefore, the research effort turned next to an analysis of the data bases the tribes maintain, the existence of data concerning reservation resources and environmental factors to which the tribes could have recourse, and the types of information systems which are currently available for their use. Examination of the available data showed that the geo- graphic and natural resources data bases maintained by some tribes are'both extensive and sophisticated. For example, one tribe maintains computerized mapping files on a whole range of resource data in such areas as timber, soils, water, range and agriculture, vegetation, and ethnobotany. Most of the tribes have mapped the geographic distribution of a wide range of agriculturally relevant data such as forest stand conditions, soil and range groups, range conditions classes, tree canopy density classes, soil permeability, slope erosion classes, and climate zones. The study found that the eXtent of the data coverage and the sophistication of the in-house information varies a 24 great deal from tribe to tribe. The availability of in- formation pertaining to surface coal mining and its effects, for instance, was related to the degree of experience a tribe has had with mineral resource development. In a similar way, the extent of the systematization of data tended to vary with the needs and functions of the tribal staff who utilized the information. The description and evaluation of tribal data bases and information which was carried out in the study is presented in detail in Chapter 7 of the report. The last subject to be taken up in the second phase of the research project embodies a classic geographic problem: the resolution of complex land status patterns. The research task here was to identify those areas which, due to the unique evolution of the Indian reservation land base, might have either special or uncertain status under the provisions of the Surface Mining Act. For the purposes of mining regu- lation under the Act, Indian lands have been defined as "all lands, including mineral interests, within the exterior boundaries of any Federal Indian Reservation," (notwith- standing the issuance of any patent and including rights- of-way), and "all lands including mineral interests held in trust for or supervised by an Indian tribe." The twenty-five coal-owning tribes were requested to identify particular sites which might have special or unique status with reSpect to criteria and definitions contained in the surface Mining Act. Examples of the potential "special status lands" identified in Chapter 8 of the report included 25 non-treaty aboriginal lands; ceded lands; contested home— stead areas; cheekerboard areas outside the exterior bound- aries of the reservation; split estate (mineral and surface) lands; lands acquired by purchase, exchange or claim settlement; various types of allotted lands; and others. The pattern of unresolved land ownership status evident in many of the areas identified underscores the complexity of the historical evolution of the Indian reservation land base. Section III: Alternative Models and Tribal Recommendations fOr Surface Mining Control and Reclamation on Indian Lands In the last phase of the study, alternative models for regulating surface mining on Indian lands were postulated in light of the analyses conducted earlier. In addition, several other factors relevant to the evaluation of these regulatory models by the tribes were analyzed. Finally, after extensive consideration of the alternative models and the related analysis, tribal recommendations for new legislation were formulated. The alternative models were designed to provide an analytical framework for the tribal evaluation of regulatory options on Indian lands. They functioned to present a broad range of viable regulatory program options for tribal consid- eration and to provide a common framework for discussion and analysis of these options. They are set forth in some detail in Chapter 9 of the study report. The third phase of the study also undertook the analysis of seVeral additional factors which were relevant to a compre- hensive evaluation of the program models and to the formulation 26 of legislative recommendations. For example, an analysis of various practical factors, such as staffing needs and associated costs for tribal mine reclamation programs, was conducted. Also considered were several "special policy issues" which had been identified during the course of the study. The analysis of these special policy issues was organized into three broad categories: 1) Conflict of In- terest Issues, 2) Special Cultural-Religious Considerations, and 3) Tribal Proprietary Data Needs. The concern over whether potential conflicts of interest might inhibit the functioning of tribal regulatory agencies under the Act produced much detailed comparative analysis of Indian and non-Indian man-land relationships. The Surface Mining Act seeks to prohibit mining in places where damages are likely to be severe or not repairable, and to place the onus of reclamation and repair on the owners and operators of mines. These requirements obviously increase the costs of surface mining for mine owners and operators, but have been judged necessary because serious environmental degrada- tion has resulted from years of widespread inattention to environmental considerations and generations of mine operators who disregarded the side effects of their enterprises. In this context, a question was raised as to whether the coal-owning Indian tribes could be expected to fulfill the requirements of regulatory agencies, when to do so would increase their costs as owners, and in some cases, as mine operators. The analysis conducted in Chapter 11 of the study 27 concluded that the potential for such a conflict of interest was minimal. Three categories of factors supported this conclusion. First, the relationship of an Indian tribe to its communal lands and the enterprises carried out on them is similar to that of the federal government to federal lands or of state governments to state-owned lands, the major difference being one of scale. Second, the Surface Mining Act provides safeguards against the possibility that environ- mental considerations might suffer in any conflict among competing interests. Many of the standards set in the Act are beyond the discretion of local implementing authorities, and a regulatory agency which fails to ensure that these standards are maintained faces the withdrawal of approval of its program and suspension of its regulatory authority. Third, and of considerable interest to the geographer's examination of man-land relationships, the coal-owning tribes were found to be more likely than most communities to be concerned about avoiding environmental degradation on the reservations. The limited size of the reservations, the proximity of dwellings and farmlands to mine sites, the cultural significance of the reservation as a tribal homeland, and the results of basic cost-benefit analyses all militate against the possibility that a tribal regulatory agency would acquiesce in environ- mentally dangerous mining practices. The actions of tribes in recent years to prompte.more stringent environmental safe- guards further reinforCed this conclusion. The study's conSideration of cultural and religious considerations which might need to be taken into account in 28 implementing the Surface Mining Act centered around specific sacred or ceremonial locations on the reservations which tribes might wish to protect, and the preservation of specific ethnobotanical species. Special tribal concerns regarding the protection of commercially proprietary or culturally sensitive data during the mine regulatory process were also addressed. Examination of examples of what the tribes considered to be proprietary information showed that although its subject matter was some- times unusual, there should be no major difficulties in devising regulatory mechanisms to insure that this information remains confidential. The legislative history of the Surface Mining Control and Reclamation Act shows clearly that Congress intended to consider and honor the views and recommendations of the Indian tribes themselves before instituting a regulatory program for Indian lands. The final phase of the Indian Lands Study therefOre focused on the formulation of policy recommendations for future Indian lands surface mining legislation. Chapter 12 of the study report describes the tribal evaluative process of the study and the recommendations that emerged from it. A series of national meetings and work- shops were held to provide the twenty-five coal-owning tribes with the analysis and resources they needed to evaluate and comment on the issues being studied. These meetings culminated in the unanimous agreement of the tribes to a set of key legislative recommendations for submission to Congress with 29 the study report. The level of tribal participation which was achieVed during this process has been an instrumental factor to the study's subsequent credibility and acceptance as a legitimate policy and planning document, both within Indian and non-Indian policy making circles. For a more detailed discussion and analysis of the issues raised in this paper, the reader is referred to the appended final report of the Indian Lands Study, which is entitled The Control and Reclamation of Surface Mining on Indian Lands.4 NOTE S 1The Surface Mining Control and Reclamation Act of 1977. (P.L. 95-87). 2Peter MacDonald, CERT Annual Repgrt (1978), p. 2. 3Allen Rowland, Letter to Secretary of the Interior Cecil Andrus; June 7, 1978. 4Richardson, Douglas (dir.). The Control and Reclamation of Surface Mining on Indian Lands. Washington, D.C.: Council of Energy Resource Tribes, 1979. 30 APPENDIX THE CONTROL AND RECLAMATION OF SURFACE MINING ON INDIAN LANDS The CONTROL AND RECLAMATION OF SURFACE MINING ON INDIAN LANDS I - t r .‘e‘ rlv‘h'lfrg)‘; ‘I V. 37x . ,‘rflh\ . *' ‘ .1. . - Ir '- 2110+!th " :éheye‘nng‘ , 1 I I . Kickapob did: ~ ~\ . Foggwéfl'} v‘i‘ , ,1 " V is _. \ ,- ‘ . . I I’ .7 ‘x .r“ . . * - '4 \ --\ , ~ . I" I I . ' .4 v D k ‘ .. Albers Equal Area Prolectlon ‘ _ \-.’"f. “ L swig . g ‘J ,3 v ‘ ‘ . K ‘ ' . . ’ A ‘ - ‘ ‘ nAli ) A ‘ Report Produced by the COUNCIL OF ENERGY RESOURCE TRIBES for The OFFICE OF SURFACE MINING, U.S. Department of the Interior Douglas Richardson, Project Director THE CONTROL AND RECLAMATION OF SURFACE MINING 0N INDIAN LANDS Report Produced by the Council of Energy Resource Tribes Douglas Richardson Project Director/Principal Investigator CERT-08M Indian Lands Study Ellen Brown Director, Office of Policy Analysis Council of Energy Resource Tribes Edward Gabriel Executive Director Council of Energy Resource Tribes Submitted by the Council of Energy Resource Tribes To The Office of Surface Mining, Reclamation and Enforcement United States Department of the Interior Contract # J5180108 September 30, 1979 FOREWARD Many people contributed time and effort to this study. Foremost among them are the participating tribal chairmen and their representa- tives (listed by tribe on the next page), who took time from the press- ing work and many other criticial issues which face energy resource tribes today to help make this study one of the most comprehensive, in terms of direct tribal involvement, of recent years. The entire CERT staff deserves special thanks for their contribu- tions, support, and indulgence throughout the various stages of the Indian Lands Study. Particular credit is due to Kathleen Stamp and 8111 Roberts; to Maggie Vance Berard, Oran LaPointe, Bill Nagle, Lonnie Von Renner, David Redhorse, Eric Natwig and Carol Wilson. CERT Directors Ellen Brown, Edward Gabriel and Nancy Zidonis provided greatly apprec- iated insight and guidance throughout the study. Richard Webb and Thomas Galloway of the Center for Law and Social Policy; Jane Meyer, Steven H. Chestnut, Barry Ernstoff, and Russell Boulding all contributed valuably, and under severe time constraints, to the analysis of key issues and to the overall quality of the study. The cooperation provided throughout the course of the study by Marie Chavis, Don Mauer, H. B. Simpson, Barbara West and Tom Tippeconnic of the Office of Surface Mining is also greatly appreciated. These contributions, and the help provided by many others not listed here, is sincerely appreciated and gratefully acknowleged. Douglas Richardson Project Director CERT-08M Indian Lands Study PARTICIPATING TRIBES CERT-08M Indian Lands Study SubcontractinggTribes Crow Tribe, (MT) Forrest Horn, Chairman Ellis Knows Gun, I.L.S. Coordinator Ft. Berthold Reservation, (N.D.) Three Affilliated Tribes Austin Gillette, Chairman Hugh Baker, I.L.S. Coordinator Navajo Tribe, (AZ) Peter MacDonald, Chairman Harold Tso, I.L.S. Coordinator Northern Cheyenne, (MT) Allen Rowland, Chairman Elin Quigley, I.L.S. Coordinator Southern Ute Tribe, (CO) Leonard Burch, Chairman Peggy Richards, I.L.S. Coordinator Uintah and Ouray Reservation, (UT) Ute Tribe Ruby Black, Chairperson Willard Gardner, I.L.S. Coordinator Non-subcontractingfTribes* Acoma Pueblo, (N.M.) Raymond Concho, Governor Blackfeet Tribe, (MT) Daniel Boggs, Chairman Cheyenne River Sioux, (S.D.) Melvin Garreau, Chairman Ft. Belknap Reservation, (MT) Gros Ventre and Assiniboine Tribes Jack Plummage, Chairman Ft. Peck Reservation, (MT) Assiniboine and Sioux Tribes Norman Hollow, Chairman Iowa Tribe of Kansas and Nebraska, (KA) Howard Simmonds, Chairman Isabella Reservation, (MI) Saginaw Chippewa Peter D. Otto, Chairman Jicarilla Apache, (N.M.) Leonard Atole, Chairman Kickapoo Tribe of Kansas, (KA) Keith Keo, Chairman Laguna Pueblo, (N.M.) Floyd Correa, Governor Mescalero Apache, (N.M.) Wendell Chino, President Prairie Potawatomi of Kansas, (KA) Milton LaClair, Chairman Rocky Boy's Reservation, (MT) Chippewa-Cree John Windy Boy, Chairman Standing Rock Sioux, (N.D.) Pat McLaughlen, Chairman Ute Mountain Ute, (CO) Scott Jacket, Chairman White Mountain Apache, (AZ) Ronnie Lupe, Chairman Wind River Reservation, (WY) Shoshone-Arapahoe Robert Harris, Co-Chairman Frank Ennos, Co-Chairman Zuni, (N.M.) Robert Lewis, Governor * (The Hopi Tribe participated as an observer only.) TABLE OF CONTENTS INTRODUCTION AND SUMMARY . . . SECTION I: Preface . . . CHAPTER 1: ON INDIAN LANDS Introduction . . . . . . . The Importance of Surface Mining Activities on Indian Lands Existing Regulation of Surface Mining Activities on Indian Lands General Provisions of P.L. THE ACT 95-87 a o 0 THE REGULATION OF SURFACE MINING ACTIVITIES Tribal Assumption of Regulatory Authority Under P.L. 95-87 . CHAPTER 2: THE STATE MODEL: Introduction . . . . . . . Criteria for Approval of State Program Legal Authority . . Performance Standards Permit System . . . . Bonding and Insurance Requirements Inspection and Enforcement Submission Administrative and Judicial Review Designation of Lands Unsuitable for Mining Public Participation in the Regulatory Process Miscellaneous Requirements of a State Program . Optional Program Elements Research and Education Programs . . . Abandoned Mined Lands Reclamation Program . Demonstrated Capability to Implement the Proposed Program Administrative Procedures . . Technical Capabilities EXISTING STATE PROGRAM FOR SURFACE MINING CONTROL AND RECLAMATION 1-1 1-2 1-3 1-8 2-15 2-15 2-16 2-17 2-18 2-19 SECTION II: THE REGULATORY SETTING Preface O O O O I O I C O O O C O O O O O O O O O O O O O O 0 CHAPTER 3: GENERAL CHARACTERISTICS OF TRIBAL COAL LANDS Introduction . . . . . . . . . . . . . . . . . . . . . . Common Physical Characteristics of Western Tribal Coal Lands Northern Plains Coal Province . . . . . . . . . . . . . Coal Resources . . . . . . . . . . . . . . . . . . Soils, Vegetation and Land Use . . . . . . . . . . Climate and Water Resources . . . . . . . . . . . . The Rocky Mountain Coal Province . . . . . . . . . . . . Coal Resources . . . . : . . . . . . . . . . . . . Soils, Vegetation and Land Use . . . . . . . . . . Climate and Water Resources . . . . . . . . . . . . Tribal Coal Lands in the Interior Coal Province . . . . Tribal Coal Lands and the Performance Standards in SMCRA Reclamation Potential of Tribal Coal Lands in the West . CHAPTER 4: TRIBAL GOVERNMENTAL INSTITUTIONS IntrOdUCtion O O O O C O O O O O O O O O O O O O O O O 0 Principles of Tribal Government . . . . . . . . . . . . Inherent Sovereign Powers of Tribes . . . . . . . . Tribal - Federal Relationship . . . . . . . . . . . Relationship to the Regulation of Surface Mining . Tribal Government Organization . . . . . . . . . . . . . Reservation Establishment . . . . . . . . . . . . . Formal Basis for the Exercise of Tribal Authority . Powers of Tribal Governments . . . . . . . . . . . Structure of Tribal Governments . . . . . . . . . . Trends in Tribal Government Administration . . . . . . . Current Resource Management Activities . . . . . . Institutional Setting of Tribal Regulatory Programs Implementation Issues . . . . . . . . . . . . . . . ii. 11-1 3-1 3-4 3-5 3-9 3-10 3-11 3-11 3-14 3-15 3-16 3-18 3-20 CHAPTER 5: TRIBAL COURT SYSTEMS IntrOduction C O C O C O O O O O O O O O O O O 0 History of Tribal Judicial Systems . . . . . . . Present Structure of Tribal Courts . . . . . . . Legal Structure . . . . . . . . . . . . . . Judges and Court Personnel . . . . . . . . Funding of Courts . . . . . . . . . . . . . NAICJA and Judicial Training . . . . . . Positive Attributes of the Tribal Court System . . Current Judicial Issues . . . . . . . . . . . . General Criminal Jurisdiction . . . . . . . General Civil Jurisdiction . . . . . . . . Comity and Full Faith and Credit . . . . . Treatment, Personnel and Facilities . . . . Public Law 83-280 Issues . . . . . . . . . conc1us ion 0 O O O O O O O O O O 0 O O O O O O 0 CHAPTER 6: LAWS AND REGULATIONS Introduction . . . . . . . . . . . . . . . . . . The Regulatory Background of Coal Mining on Indian Indian Regulatory Apparatus and Experience . . . Existing Laws and Regulations on Mining . . Regulatory and Administrative Offices . . . Regulatory Procedures and Review . . . . . Public Participation in and Judicial Review CHAPTER 7: TRIBAL PHYSICAL RESOURCE DATA BASE Introduction . . . . . . . . . . . . . . . . . . Information Requirements . . . . . . . . . . . . Geology . . . . . . . . . . . . . . . . . . Water Resources . . . . . . . . . . . . . . Land Use . . . . . . . . . . . . . . . . . Soils . . . . . . . . . . . . . . . . . . . Other Baseline Data . . . . . . . . . . . . iii. of Decisions Page 5-14 5-18 5-20 5-22 5-24 5-24 5-25 5-26 5-28 5-29 5-30 Chapter 7 (continued) Page An Overview of the Tribal Physical Resource Data Bases . . . . 7-4 Types of Available Information . . . . . . . . . . . 7-4 Organization of Tribal Data Bases . . . . . . . . . . 7-9 Use of Tribal Resource Data Bases . . . . . . . . 7-11 Other Resource Data Available to Tribes . . . . . . . . 7-12 Federal AgenCies o o o o o o o o o o o o o o o o o 0 7-12 State AgenCieS o o o o o o o o o o o o o o o o 0 7-15 Regional Planning Authorities . . . . . . . . . . 7-15 other sources 0 O O O O O O O O O O O O O O O O O O O 0 7-16 Summary of Tribal Reports . . . . . . . . . . . . . . . 7-16 crow o o o o o o o o o o o o o o o o o o o o o o o o 0 7-17 Fort Berth01d o o o o o o o o o o o o o o o o o o o 0 7-19 Navajo o o o o o o o o o o o o o o o o o o o o 0 7-20 Northern Cheyenne o o o o o o o o o o o o o o o o o o 0 7-21 Southern Ute . . . . . . . . . . . . . . . . . . . 7-23 Uintah and ouray o o o o o o o o o o o o o o o o o o 0 7-25 Summary Report of the Eighteen Affected Tribes . . . . . . . . 7-26 COHClUSiOD o o o o o o o o o o o o o o o o o o o o o o o o o 0 7-27 CHAPTER 8: SPECIAL LAND STATUS Introduction . . . . . . . . . . . . . . . . . . . . . 8-1 Crow Indian Reservation Special Land Status Report . . . . . 8-2 Fort Berthold Reservation Special Land Status Report . . . . . . . 8-3 Northern Cheyenne Reservation Special Land Status Report . . . . . 8-4 Southern Ute Reservation Special Land Status Report . . . . . . . 8-4 Uintah and Ouray Reservation Special Land Status Report . . . . . 8-5 SECTION III: ALTERNATIVE MODELS AND TRIBAL RECOMMENDATIONS FOR SURFACE MINING CONTROL AND RECLAMATION 0N INDIAN LANDS Preface O O O O O O O O O O O O 0 O O O O O O O O O O O O O O O O O O O III-1 CHAPTER 9: ALTERNATIVE MODELS - AN ANALYTIC FRAMEWORK FOR TRIBAL EVALUATION OF REGULATORY OPTIONS ON INDIAN LANDS Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1 iv. Chapter 9 (continued) Model I: Full Tribal Regulatory Program . . . . . . . . . . Adopting the State Model . . . . . . . . . . . . . . . . Variations on the State Model to Suit Indian Needs and Circumstances . . . . . . . . . . . . . . . . . . . . Ancillary Programs . . . . . . . . . . . . . . . . . . . Model II: Full Federal Regulatory Program . . . . . . . . . . Model III: Divided Tribal - Federal Program . . . . . . . . . Model IV: Joint Tribal - Federal Program . . . . . . . . . . Other Alternative Model Regulatory Programs . . . . . . . . . Model V: Inter-Tribal Regulatory Programs . . . . . . . . . Model VI: Tribal - State Regulatory Programs . . . . . . . . conCIUSion O O 0 O O O O O O O O O O O O O O O O O O O O O O 0 CHAPTER 10: ANALYSIS OF STAFF NEEDS AND ASSOCIATED COSTS FOR TRIBAL REGULATORY PROGRAMS Increduction O O O O O O O O O O O O I O 0 O O O O O O O O O O Assumptions and Format . . . . . . . . . . . . . . . . . . . . Staff, Skill and Cost Estimates . . . . . . . . . . . . . . . Administration . . . . . . . . . . . . . . . . . . . . Permit REView O O O C O O O O O O O O O O O O O O O O O 0 Inspection and Enforcement . . . . . . . . . . . . . . . Designation of Lands Unsuitable for Mining . . . . . . . Federal Funding and Assistance Programs Currently Available to States 0 O O O O O O O O O O O O O O O O O O O I O O O O 0 CHAPTER 11: Federal Funding for State Program Development and Implementation . . . . . . . . . . . . . . . . . . . Technical Assistance and Other Staffing Support Available to States . . . . . . . . . . . . . . . . . . . . . . . . SPECIAL POLICY ISSUES IntrOduction O O O O O O O O 0 O I O O O O O O O O O O C O 0 Conflict of Interest Issues . . . . . . . . . . . . . . . . . Conflicts of Interest Involving Individuals . . . . . . Conflicts of Interest and the Owner-Regulator Relationship Prevention of Conflict of Interest under P. L. 95- 87 . . . Tribal Interest in Environmental Protection . . . . . . 9-13 9-14 9-17 9-19 9-20 9-21 9-21 10-1 10-1 10-2 10-2 10-6 10-11 10-13 10-17 10-17 10-18 11-1 11-2 11-2 11-3 11-8 11-9 Chapter 11 (continued) Page Special Cultural-Religious Considerations . . . . . . . . . . . . 11-13 Tribal Proprietary Data Needs . . . . . . . . . . . . . . . . . 11-15 Public Access to Data Under the Act . . . . . . . . . . . . . 11-15 Special Policy Considerations for Indian Lands . . . . . . . . . . 11-18 CHAPTER 12: TRIBAL EVALUATION AND RECOMMENDATIONS Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1 Tribes' Evaluative Process . . . . . . . . . . . . . . . . . . . . 12-1 Tribal Issues and Recommendations . . . . . . . . . . . . . . . . 12-5 Core Recommendations . . . . . . . . . . . . . . . . . . : . 12-5 Other Recommendations . . . . . . . . . . . . . . . . . . . . 12-27 Summary of Recommendations . . . . . . . . . . . . . . . . . . . . 12-31 APPENDICES APPENDIX A: Section 710 of the Surface Mining Act (Indian Lands) . . . A-1 APPENDIX B: Definitions . . . . . . . . . . . . . . . . . . . . . . . B-I APPENDIX C: Environmental Performance Standards . . . . . . . . . . . C-l APPENDIX D: Designation of Lands Unsuitable for Surface Mining ActiVities O O O O O O O O O O O O O O O O O O O O D-l APPENDIX E: Permit system 0 o o o o o o o o o o o o o o o o o o o o o E-l APPENDIX F: Enforcement 0 o o o o o o o o o o o o o o o o o o o o o o F-l APPENDIX C: Legislative History of SMCRA, Regarding Surface Mining and Reclamation on Indian Lands . . . . . . G-l REFERENCES vi. Figure Figure Figure Figure Figure Table Table Table Figure Figure Figure Figure Figure Figure Figure Figure Figure Figure Table Table Table Table LIST OF FIGURES AND TABLES Sketch Map Showing Approximate Locations of Indian Lands Study Reservations . . . . . Approximate Location and Generalized Relief of Indian Reservations Containing Coal Resources . Generalized Coal Provinces of the United States Approximate Location of Indian Lands Study Reservations in Relationship to Major Physiographic Divisions . Location of Indian Lands Study Reservations in Relationship to Major Bituminous and Sub-bituminous Coal and Lignite Fields of the Coterminous united States 0 O O O O O I O I I O O O O O 0 General Physical Characteristics of Tribal Coal Lands in the Northern Plains Coal Province . . . . . General Physical Characteristics of Tribal Coal Lands in the Rocky Mountain Coal Province . . . . . General Physical Characteristics of Tribal Coal Lands in the Interior Coal Province . . . . . . . . . Mean Annual Precipitation on Indian Reservations Containing Coal Resources . . . . . . . . . . . Indian Lands Study Reservations: Annual Solar Radiation . . . . . . . . . . . . . . . . . . . Indian Lands Study Reservations: Mean Annual Evaporation . . . . . . . . . . . . . . . . . Significance of Drought Hazard on Indian Reservations Containing Coal Resources . . . . . . . . . . . Generalized Ground Water Characteristics of Indian Reservations Containing Coal Resources . . . . Landform Characteristics of Indian Reservations Containing Coal Resources . . . . . . . . . . . Dominant Soil Types on Indian Reservations Containing Coal Resources . . . . . . . . . . . Potential Vegetation of Indian Coal Lands . . . . Generalized Land Resources Regions in Relationship to Indian Coal Lands . . . . . . . Derivation of Authorities Affecting a Hypothetical Tribal Regulatory Body . . . . . . . . . . . . . Tribes Participating in the Study . . . . . . . . Establishment of Reservations . . . . . . . . . Formal Basis of Tribal Government Authority . . . Examples of the Enumerated Powers of the Tribal Government . . . . . . . . . . . . . . Page i-3 3-12 3-17 3-23 3-24 3-25 3-26 3-27 3-28 3-29 3-30 3-32 4-7 4-12 4-15 4-18 4-20 Table Table Table Table Table Table Table Table Figure Table Table Table Table Table Table Table Table Table Table Figure Table Table I I I I I I O. .0 O. .0 O. O. WUUIU'IL'J‘IU‘U‘IUIU'I mNO‘UIbDJNl-‘H 10-1: 10-2: 10-3: 10-1: 11-1: 11-2: Governing Bodies of the Participating Tribes . . . . . Examples of Duties of the Governing Body . . . . . . . Executive Officers of the Participating Tribes . . . . Examples of Duties of the Executive Officer . . . . . Judicial System Authorized by the Constitution or Codes . . . . . . . . . . . . . . . . . . . . . . Examples of Internal Checks and Balances . . . . . . . Existing Energy Production by the Participating Tribes Types of Courts Established by the Coal-owning Tribes Example of Tribal Court Organization Chart . . . . . . Selection Process for Tribal Judges . . . . . . . . . Judicial Review of Tribal Court Decisions . . . . . . Examples of Tribal Court Cases . . . . . . . . . . . . Basic Qualifications for Tribal Judgeships . . . . Types of Support Personnel . . . . . . . . . . . . . . Funding of Tribal Courts . . . . . . . . . . . . . . . Agreements Between Tribal and Other Courts . . . . . . Sample Annual Administration Operating Costs . . . . . OSM Costs Estimates . . . . . . . . . . . . . . . . . Inspection and Enforcement Costs . . . . . . . . . . . Sample Tribal Regulatory Program Operating Costs . . Information that Must be Developed by the Regulatory Agency . . . . . . . . . . . . . . . . . Public Access to Data Collected or Developed by the Regulatory Agency . . . . . . . . . . . . . . . The Control and Reclamation of Surface Mining on Indian Lands: INTRODUCTION AND SUMMARY INTRODUCTION AND SUMMARY Indian tribes own and control an estimated 15% of the country's coal resources which may be recovered by surface mining, including one-third of the low-sulfur strippable coal of the western United States. This study presents an analysis of the issues associated with the control and reclamation of surface coal mining on these tribal lands and makes recommendations for future legislation in this area. BACKGROUND When the Surface Mining Control and Reclamation Act was passed in 1977, Congress left unresolved the question of how coal mining on Indian lands was to be regulated. Before determining this issue, the legis- lators wished to know more about the conditions existing on the reser- vations of coal-owning tribes and about the needs and desires of the tribes. Congress therefore required the Department of the Interior to undertake a study of surface mining control and reclamation on Indian lands and to provide for substantial participation by the affected tribes in the conduct of the study (Section 710).:/ The coal-owning tribes also are to be encouraged to submit separate statements of their views as to how the Act should be implemented on their reservations (Section 710(b)). After completion of the study, the Interior Department is to develop preposed legislation for implementing the Act on Indian lands. This proposed legislation is to be "designed to allow Indian :/ Section 710 of the Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87). Unless otherwise specified, all section refer- ences in this report refer to the Surface Mining Act. tribes to elect to assume full regulatory authority over the adminis- tration and enforcement of regulation of surface mining of coal on Indian lands" (Section 710(a)). The study, the views of the affected tribes, and the legislative proposals are to be submitted to Congress for its consideration in developing a national surface mining control and reclamation program for Indian lands. The Section 710 Indian Lands Study and special congressional con- sideration of tribal regulatory programs for Indian lands are unique approaches to Indian natural resources regulatory issues and are highly significant for the tribes. In the past, environmental laws have neither mandated study of their probable effects on Indian lands and people not designated which unit of government was to implement their provisions on Indian lands. The result often has been exacerbation of state-tribal jurisdictional conflicts, and an impairment of critically important tribal efforts to plan for and manage the development of their natural resources. Section 710 of SMCRA represents the first attempt by Congress and the tribes to resolve these issues. Allen Rowland, President of the Northern Cheyenne Tribe, stressed this significance of the Section 710 Indian Lands Study to tribes in a letter to Secretary of Interior Andrus on June 7, 1978, stating, "Since this is the first time tribes have achieved a legis- lative mandate to substantially participate in a study of this kind, the precedent which is set . .. . will be an important one for tribes, and for their on-going efforts to achieve similar mandates in forthcoming natural resources legislation." Tribal control over natural resources activities on Indian reser- vations is an important issue to the tribes involved in the study. For 1 / CERT-OSM Indian Lands Study " BIackfeet ‘ m. Rocky t» D - D | | I Fort Fort Peck I BeIImap C1 I Fort Berthold | fl | Isabella l ’ F/‘zSIanding Rock Northern C row QH— D Cheyenne Wind m... Iowa , Uintah & . Ouray K'Ckapoo D Potawatomi l—Ute Mtn. Southern Ute Navajo __ Ill-"‘WUI Elicarilla IO' j .W ZUDI 3% Laguna Acoma Fort Apac e I I I I I I I I I I I I I I I I I I I I I I i I I | I I I I I I I R: Mescalero Albers Equal Area Projection ,__—_—_———-—_’_ SCALE 1:I0,000,000 Source: U.S. National Atlas, 1968 0 "Ion 'zoo 100 no 700 IILOIIIIIS Sketch Map Showing Approximate locations of Indian lands Study Reservations this reason, the coal-owning tribes have exhibited a keen interest in develOping an understanding of this law, participating in the evaluation of technical and policy matters, and providing their recommendations on preposed legislation. The Indian Lands Study was originally scheduled to be submitted to Congress by January of 1978 (Section 710(b)). After a number of delays in its implementation, the Office of Surface Mining (OSM) of the Depart- ment of the Interior (D01) decided to contract the major portion of the required study to the Council of Energy Resource Tribes (CERT) in September, 1978. Over the past year, CERT, in conjunction with the coal-owning tribes and with concerted input from six of the major tribes,2/ has conducted a wide-ranging and intensive study of issues pertaining to the regulation of surface mining on Indian reservations. The study has included detailed analysis of the provisions of the Act, collection of extensive data pertaining to Indian lands and resources, analysis of Indian governmental forms and activities, and consideration of the relationships between them. Throughout the’course of the study. monthly meetings were held with the major coal-owning tribes, and bi- monthly national workshops were held at which CERT and representatives of the 25 coal-owning tribes discussed these factors, considered possi- ble recommendations for regulatory programs on Indian lands, and reached unanimous agreement on seven core recommendations for Indian lands legislation. These recommendations are summarized below. Although individual tribes had additional suggestions and recommendations, the seven described here were considered by all to be the most significant 2/ The 25 coal-owning tribes are listed at the beginning of this report; the approximate locations of their reservations are in- dicated on page i-3 (Figure i-l). i-4 and to cover those points which they most urgently wanted to see given legislative form. RECOMMENDATIONS The tribes involved in the Indian Lands Study recommend that DOI's prOposed surface mining control and reclamation legislation for Indian lands should include the following features: 1. Provisions which would afford tribes the option, similar to that currently available to states on state lands, of electing to assume full tribal regulatory authority over all mining and reclamation activities on Indian lands which are regulated by the Act. Most tribes consider this recommendation absolutely critical to any acceptable Indian lands program under SMCRA. 2. Provisions which would afford tribes the additional option of electing to assume various partial regula- tory programs via cooperative agreement with the federal government. 3. Provisions which would assure adequate federal funding of tribal regulatory programs. 4. Provisions which would establish special training and educational programs designed to assist tribes in acquiring skills and capabilities required for mining regulatory programs. 5. Provisions which would provide for special technical assistance Iavailability to ‘tribal regulatory’ pro- grams. 6. Provisions which would furnish compensation to tribes for the loss of those tribal coal resources which cannot be mined as a result of the .Act's prohibition of mining in alluvial valley floors. 7. Provisions which allow for flexibility in developing and implementing tribal regulatory programs in order to accommodate local or tribe-specific requirements and conditions. In the first recommendation, the tribes firmly support the prin- ciples, embodied in Section 710 of the Act, that tribes should be given the Option of assuming full regulatory authority over coal mining ac- tivities on Indian lands. From the point of view of the tribes, the ability to exercise regulatory authority over coal mining on their lands will ensure that they retain. control over the Idevelopment of their natural resources. Earlier experiences with natural resource develop- ment over which the tribes had limited control have left them convinced that without this ultimate control their interests will not be as care- fully rn: as fully represented. Some of these tribes have come to the conclusion that it would be better not to develop their coal resources at all unless they can control the process. Several of the major coal- owning tribes have indicated that whatever the legislative outcome, they intend to exercise existing powers, such as leasing and contractual rights, to control the development of their coal resources. For these tribes, legislation affording them the option to assume full regulatory authority over mining on tribal lands under SMCRA would provide for steamlined regulation of mining and would avoid unnecessary jurisdic- tional conflicts. Apart from these practical considerations, the tribes believe that important principles are at stake. As quasi-sovereign entities tribes are entitled to exercise regulatory Authority over mining activities on their land. Congress has shown, over the course of considering the Act prior to legislation, that it views the tribes as similar to states with respect to this huthority. In addition, the enactment of this legisla- tiVe preposal would affirm the existing responsibilities of tribal governments for their peoples, their lands, and their resources, and would enhance the capability of tribal governments, as demonstrated by this study, to fulfill those responsibilities. Finally, enabling the tribes to assume full regulatory authority would be consistent with the Congressional practice of assigning regulatory functions to the unit of government best able and most committed to carrying them out. The tribes clearly are most committed to making environmentally and ec- onomically sound decisions with respect to mining, because they must live with the consequences of their decisions. The tribes cannot pack up and move elsewhere. The tribes' second recommendation is that they be enabled to assume regulatory authority over parts of a regulatory program and to enter into c00perative agreements with the federal government for performance of the other parts of such programs. Generally speaking, the reasons for enabling tribes to assume full regulatory authority also apply to enabling them to assume authority over parts of the programs required by the Act. If the tribes were to be treated precisely like states, they would not have the Option of assuming regulatory authority over parts of the program, since the Act does not allow approval of partial state programs (Section 503). There are several reasons, however, for avoid- ing such an all-or-nothing approach to tribal programs. Some tribes envision a number of circumstances under which assuming partial responsibility for the regulation of mining might be more prac- tical than undertaking full-scale regulatory programs. Where tribes do not already possess full programmatic capabilities, coal develOpment could be hindered unless the tribes are able to phase in their regula- tory programs over a period of time. During this period, the tribes would be able to carry out those regulatory functions for which they possess or had developed the necessary capabilities while federal agencies, pursuant to a cooperative agreement, could carry out the remaining regulatory functions. Thus, the possibility of assuming regulatory authority for parts of the program would enable the tribes to retain the element of control they require while enhancing their regula- tory capabilities over time. The possibility of assuming partial regulatory authority also would be the most practical approach where a tribe was faced with developing sizeable and expensive facilities for one-time use. For example, in cases where a tribe intends to develop only one mine or where extensive technical work is required only for one short phase of the program, it might make more sense for the tribe to enter into an agreement with an agency of the federal government to carry out those parts of the pro- gram, rather than for the tribe to spend considerable amounts of time and money performing those functions itself. Precedent for such partial regulatory authority already exists in the Act, which allows the federal government tx> enter into cooperative agreements with state governments to perform various regulatory functions with respect to mining on feder- al lands (Section 523). The third tribal recommendation is that tribes be eligible for sufficient federal funding to ensure that they are able to undertake the degree of regulatory authority over their lands which they elect to assume. Under the Act, states which assume primary regulatory authority are eligible for sizeable federal grants to enable them to carry out the federally-mandated functions. The principle of grants to fund these activities therefore is not in question. However, the tribes are likely to need relatively larger grants than the states for the development and implementation of their surface mining programs. The tribes are not in the same financial position as states and often do not have the same potential for raising revenues as states. In addition, the tribes, unlike the states, usually have no existing regulatory apparatus for surface mining control and reclamation, and they possess less informa- tion about the prOperties of their lands and resources than do the states. In other words, the tribes have farther to go with fewer funds. They therefore require relatively greater federal funding than. the states. The tribes specifically recommend full funding for the develOpment of tribal programs and full funding for the initial years of adminis- tration and enforcement of those programs. The tribes noted, apart from their special need for substantial federal funding, that states are eligible for full federal funding of their incremental costs associated with the interim regulatory program (Section 502(e) (4); CFR 725), and that absent a tribal program, the federal government would bear the full financial burden of regulating surface mining on Indian lands. In earlier legislative prOposals for regulatory programs on Indian lands, it was envisioned that substantial grants would be necessary and available for the develOpment, administration, and enforcement of tribal programs. The enactment of that level of funding now, plus the ac- knowledgment that tribes could make use of funds available under other related programs, would facilitate the tribes' assumption of regulatory authority over surface mining on their lands. The tribes' fourth recommendation is that they receive adequate federal technical assistance in developing and implementing their regu- latory programs. The Act already includes provisions for such assis- tance to states because it was recognized that the technical complexity of the required programs otherwise might impede the establishment of state regulatory programs. Once again, the tribes are likely to require greater technical assistance than states because they have had less experience in both the technical and the professional aspects of the program. In addition, certain regulatory functions require highly specialized technical skills for a short period of time. Tribes may find it worthwhile to rely on technical and professional assistance from an appropriate federal agency in these circumstances. Earlier legisla— tive preposals made provision for necessary technical and professional assistance to the tribes, and similar provision should be made in future legislation. The fifth recommendation is closely related to the preceding one. It is proposed that tribes be eligible for special assistance in educa- tion and training programs. The Act already makes provision for the funding of state mining and mineral resource research institutes, energy resource fellowships, and university and coal research laboratories. Funding of these and other educational facilities and programs for the tribes is of great importance in enabling the tribes gradually to dimin- ish their need for' outside technical assistance and to Istaff their regulatory programs with members of their own communities. Provisions for special education and training programs should allow for’ con— siderable flexibility in their implementation so that tribes and tribal members could tailor such programs to meet their specific needs. The availability of education and training funds, furthermore, should not be dependent on the tribe's having an approved regulatory program. The earlier that education and training is available to tribal members, the greater the pool of qualified personnel on which the tribe can draw will be when it assumes regulatory responsibilities. 1 - 10 The sixth tribal recommendation is that tribes be compensated for the loss of coal resources as a result of the Act's prohibition against mining in alluvial valley floors. Provisions for exchanges of coal and coal leases in these circumstances already are included in the Act (Section 510(b)(5)), but this approach alone does not adequately meet tribal needs. Restrictions on the alienation of trust resources via coal exchanges and the reluctance of tribes to fragment ownership of tribal mineral resources means that a more direct form of compensation should be provided for Indian tribes. It is usually the case that the tribes begin with an impoverished economy. Often their aspirations for economic. development and. ensuing social benefits are based (n1 their ability to develop their limited tribal mineral resources. The tribes have no wish to engage in environmentally unsound resource development, but the impact Of this loss of resources will be severe on many tribes. For these reasons, they are entitled to adequate compensation. Direct federal compensation to tribes for losses incurred as a result of the congressional action prohibiting the mining of tribal coal in alluvial valley floor areas is particularly appropriate given the federal-tribal trust relationship in the management of tribal resources. It is specif- ically recommended, therefore, that affected tribes be given the Option of direct monetary compensation, according to the projected value of unmineable coal reserves, or a grant of a transferable federal coal lease for a: comparable quantity of coal, or a combination of the two. The seventh and final recommendation of the tribes is that they be afforded increased flexibility in develOping their regulatory programs to accommodate special, local requirements such as cultural values and i-ll local environmental and agricultural conditions. The OSM regulations implementing the Act provide some flexibility for state programs in what is known as the "state window" (30 CFR 731.13). Under this provision, states cannot deviate from the standards set by the Act, but may vary their programs somewhat from federal regulations when they can demon- strate that local conditions justify such variation. The tribes recom- mend that a similar provision, a "tribal window", be enacted to provide flexibility when local conditions justify deviation from the federal program. These core recommendations are based on the study which follows and are discussed in greater detail in the final chapter of the study. The tribes also will submit individual statements Of their views on the final legislative program which the Department of Interior submits to Congress. The study report which follows is organized into three parts: Section I presents an in-depth analysis of the Act and its require- ments. It also analyzes OSM's implementing regulations and establishes an initial model based on the requirements for an Iapprovable state program. Section II concerns the regulatory setting on Indian lands. The purpose of this part is tO provide background information and analysis of tribal lands and institutions relevant to the evaluation of regula- tory programs for surface coal mining control and reclamation on Indian lands. It covers the physical characteristics Of the lands of coal- owning tribes, the governmental institutions and court systems of those tribes, existing tribal laws and regulations affecting mining activities on their lands, as well as tribal resource data bases and the special status lands. 1 - 12 Section III sets forth alternatives to the state program regulatory model which should be considered in determining the best regulatory program for Indian lands. Analysis of program costs and staff needs associated wdth these alternative models is provided, and in addition, certain special policy issues with respect to Indian lands are dis- cussed. The tribes' evaluation of the alternative models for mine regulation on Indian lands, in light of this information, is presented in the form of seven core recommendations for legislative action. i-13 - . SECTION I THE ACT SECTION I: THE ACT Section I Of the Indian Lands Study report presents an analysis of the' provisions of the Surface Mining Control and Reclamation.IAct, (SMCRA) as they relate to potential mining control and reclamation on Indian lands. Its purpose is to document the major elements of the regulatory program created by P.L. 95-87, with particular emphasis on the characteristics of the regulatory agencies that will implement the law. These materials can serve as a working paper and starting point from which a tribe can identify and analyze activities that would be required Of a tribe if it were to elect to assume regulatory authority as prOposed in Section 7l0 of the Surface Mining Act. It should be emphasized, at this point, that the Surface Mining Control and Reclamation Act of 1977 does not currently provide author- ization for tribal regulatory programs. This authority will not exist, under the Act, until the completion of the Indian Lands Study and sub- sequent passage of proposed legislation, "designed to {allow' Indian tribes to elect to assume full regulatory authority over the ad- ministration and enforcement Of regulation of surface mining of coal on Indian lands," which is called for in Section 710 of the Surface Mining Act. Until the Indian legislation mandated by Section 710 is passed, the Secretary of the Interior is responsible for implementing specified portions of the Act on Indian reservations on an interim basis. Thus; the following discussion of how an Indian lands program might relate to the requirements of SMCRA is premised upon the passage of authorizing legislation as mandated in Section 710. Section I focuses on the requirements Of the Surface Mining Act as they may affect mining control and reclamation on Indian lands. The first Chapter puts the Surface'Mining Act into the context of general regulatory schema for Indian lands. It analyzes the unique blend of tribal and federal controls over mining on Indian lands, and explains the role of P.L. 95-87 in that mix. Briefly, the Surface Mining Act is important for two reasons: its performance standards govern mining and reclamation on reservations, and when amended as proposed in Section 710, it is expected to Offer tribes an additional mechanism for re- gulating these Operations by enabling them to assume responsibility for administering and enforcing this law. Chapter 1 also describes the different forms of regulatory agencies that have undertaken implementation of the Surface Mining Act on State and Federal lands. Although the Office of Surface Mining (OSM) within the Department of Interior is responsible for overseeing the imple- mentation of the Act nationwide, it is anticipated that in most in- stances, the agency will delegate primary responsibility for mine regu— lation on state lands tO state regulatory bodies, if certain conditions are satisfied. Congress vested the primary responsibility for regulat- ing mining on federal lands with OSM, although the law includes special provisions for integrating portions of this program with other federal activities and with state regulatory agencies. Chapter Two introduces the existing "state program model" for regulating mining and, within this context, discusses and analyzes the basic requirements Of the Surface Mining Act. The law has imposed comprehensive controls on mining and reclamation Operations, and has issued detailed guidelines on how the government should implement them. It specifies the regulatory agency's types Of authority (e.g., the ability to require permits, to establish specific mining performance standards, and to impose civil and criminal sanctions for violations of permit terms). It directs the agency to follow certain administrative procedures when implementing them (e.g, provisions for public participa- tion, written decisions, timely actions). Finally, the law requires regulatory agencies implementing the Act to have sufficient technical support to fill these responsibilities (e.g., staffing, funding, in- formation). The materials in this section may indicate the general range of requirements which a tribal regulatory authority might en- counter, as well as special issues that should be addressed by tribes and Congress when considering options for implementation Of the Act on Indian lands, as proposed in Section 710. CHAPTER 1 THE REGULATION OF SURFACE MINING ACTIVITIES ON INDIAN LANDS CHAPTER 1 THE REGULATION OF SURFACE MINING ACTIVITIES ON INDIAN LANDS Introduction The Surface Mining Act (P.L. 95-87) is a new and important addition to the wide range of controls on mining activities on Indian lands. In the past two decades, several tribes have become concerned about the potential transformation of their lands into massive strip mining opera- tions, with the potential degradation of the quality of the air, water and lands that often are associated with coal production. These tribes recognize the need for environmental performance standards and enforce- ment mechanisms to minimize this disruption. Some have exercised their tribal powers to control development. The Interior Department and other federal agencies also exercise a wide range of regulatory authority over mining activities on Indian lands. Public Law 95-87 establishes, for the first time, a comprehensive prOgram for regulating surface mining and reclamation activities. The following section illustrates how this particular Act fits into the spectrum Of controls on tribal resource development. It highlights the importance of these Operations on Indian lands; the existing sources of authority that regulate them; the basic provisions of the 'program created by P.L. 95-87; and the tribes' ability to assume further regula- tory authority as proposed under Section 710 of the Act. THE IMPORTANCE OF SURFACE MINING ACTIVITIES ON INDIAN LANDS Energy-owning tribes have long been faced with the challenge of managing the Operation and reclamation of large-scale surface mines. The pressure to control the impacts of these mining operations derives from at least three factors: (1) the scale of existing or planned production on Indian lands; (2) the fact that most reservations are located in areas that are difficult to reclaim; and (3) the fact that mining Opera- tion Often consumes a significant portion of a tribe's limited land. First, together and individually, Indian tribes own and produce a substantial portion of the nation's strippable energy resources. In aggregate, Indian tribes own approximately 302 of the low-sulfur strip- pable coal west of the Mississippi River. As of 1977, 239,402 acres of tribal lands were under lease for surface coal mining activities; five surface udnes, encompassing 154,438 acres, produced 23 million tons of coal in that year. Four of these mines were ranked among the nation's tOp ten producers in 1977: Navajo Mine (Navajo Tribe) 4th; Kayenta Mine (Navajo Tribe), 5th; Absoloka Mine (Crow Tribe), 8th; and the Black Mesa Mine (Navajo and HOpi Tribes), 10th. A similar situation exists for uranium. Estimates indicate that Indian tribes own up to 50% of the known uranium reserves in the U.S., much of whidh is in strippable deposits. For example, the world's largest open—pit uranium mine is located on Indian lands. This single mine, situated on the Laguna Reservation, accounted for almost 14% of the total U.S. production of uranium in 1976. Second, much Of the surface mining on Indian lands is in environ- mentally sensitive areas. For example, adequate reclamation may be more difficult to achieve on some reservations located in the arid Southwest, because of the unique climatological and environmental conditions of the region. Similarly, surface mines on reservations in the Northern Great Plains require special attention because of their effect on the hydro- logic balance in the region, particularly where the operation involves alluvial valley floors. Third, surface mining activities may significantly reduce the land base available to an individual tribe for alternative forms of resource development. An example of this dilemma occurred on the Northern Cheyenne Reservation: By 1973, permits or leases for coal strip mining had been issued for over one-half of the reservation. The tribe has since taken steps to void these leases and permits. Another example is the huge Laguna uranium mine noted above, which has disturbed over four square miles Of the tribe's reservation since it began Operation in the early 1950's. Even if the mining Operations use only a small portion of the reservation, these lands must be restored to their ultimate pro- ductivity for existing and future generations Of tribal members. Confronted with these problems, the energy-owning tribes have initiated programs to plan for and control any surface mining activities on their lands. The various approaches toward managing development on the reservations are discussed below. EXISTING REGULATION OF SURFACE MINING ACTIVITIES 0N INDIAN LANDS The mix of surface mining regulatory controls on Indian lands is unique. Three parties are involved, each to varying degrees: (1) the tribal government; (2) the tribes' trustee, the Department Of the Interior; and (3) federal agencies that are responsible for implementing national laws "of general applicability." An Indian tribe derives its authority to regulate development on its land from three different sources. First, as the resource owner, a tribe has the final say in whether, when and how any minerals will be developed. Contracts for energy development can include any terms or conditions that a; tribe feels are necessary to accomplish its Object- ives. New or renegotiated contracts may include special provisions for environmental standards and for tribal oversight and approval of the operations. Second, a tribe may impose controls on mining activities by exercising its powers as a governmental unit. Examples of such measures include land use, taxation and other ordinances or codes. A third basis for tribal regulatory authority exists when Congress expressly delegates it to the tribes. The Surface Mining Act, if amended as prOposed in Section 710, would be an example of this approach. The Department of the Interior plays an important role in the regulation of *mining activities on Indian lands. Tflua Department's involvement stems from a variety of Congressional acts and Supreme Court decisions dating back to the 1700's. These actions require Secretarial approval (ME any conveyance of the rights to tribal trust assets. The Indian Mineral Leasing Act Of 1938 reaffirmed this requirement for all minerals transactions. The Secretary Of the Interior has delegated the responsibilities for overseeing contractual arrangements to the Bureau of Indian Affairs (BIA) and the responsibility for administering and enforcing the conditions of the contracts to the Conservation Division of the U.S. Geological Survey (USGS). Both agencies have issued rules and regulations for their activities. The BIA's leasing procedures and terms are in Title 25 Of the Code of Federal Regulations (25 CFR 171-183). Those for USGS are in 30 CFR 221 and 30 CFR 231. The BIA and USGS also are required to assist the tribes in implementing any special contract stipulations they desire. The Secretary of the Interior has recently delegated to the newly created Office of Surface Mining Re- clamation and Enforcement (OSM) the responsibility for implementing portions of the Surface Mining Act, as specified in Section 710 (c)(d)(e) and (f) of the Act, on Indian lands. Finally, mining activities on Indian lands are subject to laws of "general applicability".-:/ Examples of such laws are the Clean Air Act, the Federal Water Pollution Control Act, the Safe Drinking Water Act, the Resource Conservation and Recovery Act, the Federal Mining Safety and Health Act, and the Surface Mining Control and Reclamation Act. On Indian lands these laws are implemented by the appropriate federal agency unless the Congress has delegated such authority to the tribes. The Surface Mining Act, when amended, is expected to provide for such delegation. Thus, the Surface Mining Act is of particular importance to tribes for two reasons. First, as a law of general applicability, its perform— ance standards and regulatory mechanisms will govern the mining opera- tions on Indian lands. Section 710 specifically incorporates portions *1: of the law into all existing and future leases and contracts.--/ */ Laws of "general applicability" are those enacted by the Congress _ that apply to all persons and areas in the United States, including Indians and Ind an lands. See FPC v. Tuscarora Indian Nation, 32 U.S. 99, 116 (1960). _*_{‘_/ This section of the Act incorporates certain performance standards from Section 515 as requirements for all existing and new leases "on or after one hundred thirty-five days" from enactment. (25 CFR 177, Subpart B). Other requirements enumerated in Section 710(d) will take effect as of February 3, 1980. Provisions of the Act not enumerated in Section 710 do not currently apply on Indian lands. 1-5 Second, P.L. 95-87, when amended as proposed in Section 710, would provide Indian tribes with an additional mechanism to regulate the development on their reservations. The basic features of this Act are summarized below. GENERAL PROVISIONS OF P.L. 95-87 The Surface Mining Control and Reclamation Act of 1977 was signed into law on August 3, 1977. Previously, the regulation of surface mining Operations was a patchwork Of standards and procedures that varied among states, federal lands and Indian lands. After several years Of study and debate, Congress determined the need for comprehen- sive surface mining controls which would set minimum environmental performance standards. Congress also identified a need for greater consistency in the process used to regulate mine Operators and for greater public involvement in these decisions. It originally was felt that all surface mines -- coal and non-coal -- should be regulated under the law. However, when the bill finally was adopted, Congress detailed performance standards only for coal mines because of insufficient data on mining other minerals.:/ Finally, Congress recognized the need for a gradual transition into the regulatory program, and allowed until June 1980 for the complete programs to be in effect. Like other environmental laws, this Act relies on four mechanisms to accomplish its Objectives: (1) a planning process; (2) performance 31/ As in the case of Indian lands, Congress mandated in SMCRA a study of the question of surface mining regulation of non-coal minerals. This study is being conducted concurrently with the Indian Lands Study by the National Academy of Sciences and the Council Of En- vironmental Quality. Thus, standards for surface mining and re- clamation of other minerals may be enacted after Congress receives the recommendations Of the NAS-CEQ study, expected in late 1979. standards; (3) a permit system; and (4) enforcement measures. The pur- pose of the planning process is to designate any lands that are unsuit- able for surface mining. The law sets forth detailed perfOrmance stand- ards deSigned to ensure that after February 3, 1978, all mining Opera— tions Are conducted and reclaimed in an environmentally sOund manner. Subsequently, these standards are to be imposed on, Operations under a system for prOcessing, evaluating and issuing mining permits. Finally, various procedures are included to enforce compliance with the terms of the permits. Implementing these mechanisms will require special regulatory bodies. For the purposes of designating regulatory authorities, the law distinguished among three categories of regulated lands: (1) "State lands," which are defined as "lands within a State other than Federal lands and Indian lands." (Section 701 (11)); (2)‘ "Federal lands," which are defined as "any land, including mineral interest, owned by the United States without' regard tO how the United States acquired ownership of the land and without regard to the agency having responsibility for management thereof, except Indian lands . . .." (Section 701 (4)), and (3) "Indian lands", which are defined as "all lands, including mineral interests,‘ within the exterior boundaries of Federal Indian reservations, notwith- standing the issuance of_any patent, and including rights-of-way, and all lands including mineral interests held in trust for or supervised by an Indian tribe," (Section 701 (9)). The regulatory authority for activities on state lands will be OSM until the state submits an implementation~plan-for'a‘compiet6”regfiIaffiry program. “Once approved FYI OSMflwt‘hefs‘tate will; be delegated (primary regulaeory authority, subjecf fo cantfnued oversight by OSM. OSM will be the primary regulatory authority for activities on federal lands, subject to certain limitations imposed by other federal land and mineral management acts, and also subject to c00perative agreements delegating authority to the states. The designation of the primary regulatory authority for activities on Indian lands has not been finalized by Congresscil However, Section 710(a) establishes the premise that tribes, like States, should be permitted to assume full regulatory authority. Until legislation is enacted to specifically allow tribes to enforce the Act, OSM will serve as the regulatory authority. Tribal Assumption Of Regulatory Authority Under P.L. 95-87 Once the Department Of the Interior submits the legislative pro- posals required by Section 710, and if Congress enacts them, Indian tribes will be able to decide whether to pursue the Option of regulating mining activites according to regulatory programs resulting from the legislatiOn. A key consideration will be the tribes' willingness and ability to develop the capabilities required Of a regulatory authority under this law. Chapter 2 describes requirements of the existing state regulatory program model and the types Of capabilities that must be- develOped before the Secretary of the Interior (through OSM) may dele— gate authority to a state regulatory agency under the Surface Mining Act. These program requirements, hereinafter referred to as the State Model, may serve as a starting point, or basic reference model, for tribal analysis of alternative model Options which are presented in Section III. :/ Until further legislation is passed, however, the Secretary of the Interior and his designees are responsible for those regulatory activities currently applicable to Indian lands under P.L. 95-87. CHAPTER 2 THE STATE MODEL: EXISTING PROGRAM REQUIREMENTS FOR SURFACE MINING CONTROL AND RECLAMATION CHAPTER 2 THE STATE MODEL: EXISTING STATE PROGRAM REQUIREMENTS FOR SURFACE MINING CONTROL AND RECLAMATION Introduction The Office of Surface Mining (OSM) in the Department of the In- terior has promulgated regulations providing for optional state im- plementation of the provisions of the Surface Mining Control and Re- clamation Act on state and federal lands through approved state regula— tory programs. The general standard OSM will apply in determining the adequacy of a state mining reclamation program is whether its provisions are "in accordance with" those of the Act and are "consistent with" those Of the federal regulations (CFR 732.15 and 730.5). Thus, in general, state provisions can be no less stringent than federal pro- visions. State programs may, however, include provisions more stringent than federal provisions. To allow for some flexibility in the development of state programs, the Secretary Of the Interior included in the final regulations a con- cept known as the "state window." Under the so-called "state window," states may submit programs containing provisions which embody a dif- ferent approach than that taken by the federal regulation. (30 CFR 731.13.) The approach still must be "in accordance with" the Act and "consistent with" the federal regulations. It does allow states, how- ever, to adopt different approaches when they are necessary because of "local requirements or local environmental or agricultural conditions." There must be a detailed demonstration by the state that the alternative provision meets these standards. The state window does not apply to the requirements of the Act itself, but only to the provisions of OSM's federal regulations, which specify in detail how the Act is to be imple- mented. The state window was one Of the most controversial concepts in- troduced by the proposed permanent regulations. Critics charged that it would allow states to ignore the federal regulatory schema and still receive program approval. As a result, the state window was modified and restricted considerably in the final regulations. Thus, any varia- tions in state programs from the requirements which are described in this chapter must be necessitated by local requirements or conditions and a strong, detailed justification for the variation must be provided. CRITERIA FOR APPROVAL OF STATE PROGRAM SUBMISSION TO obtain approval, a state must submit a program which demon- strates: (1) legal authority vested in one state agency to perform all required functions; and (2) the state's capability, in terms of re— sources, to fulfill each of those functions. Legal Authority To Obtain approval, a state must have the legal authority to regu— late coal exploration and surface coal mining and reclamation Operations in accordance with the Act and in a manner consistent with federal regulations. In the chapter which follows, we discuss what meets this standard in each program area; i.e., the "minimum criteria" for approval Of a state program. For example, in the enforcement area, a state program must contain provisions affirming the right of citizens who report violations or hazards to accompany the inspector who investigates the report onto the mine site, etc. The following eight core program areas have been delineated in order to provide tribes a convenient and common framework for discussion and analysis of these complex criteria: 2 - 2 * Performance standards * Permit system * Bonding and insurance requirements * Inspections and enforcement * Administrative and judicial review * Designation Of lands unsuitable for mining * Public participation in the regulatory process * Miscellaneous requirements of a state program Performance Standards Performance standards govern the actual mining and reclamation processes to ensure protection of the environment and the public. States must adopt performance standards which are at least as stringent as, and meet the minimum requirements Of the Act and its accompanying federal regulations. The Act expresses these. performance, standards generally as goals which are implemented in detail by the regulations as specific mining procedures and engineering design criteria. While a state may Offer a different approach from that taken by the regulations, based on local requirements or local environmental (n: agricultural conditions, the state must justify its alternative and prove that it is at least as environmentally effective and as enforceable as are the minimum requirements of federal laws. (30 CFR 732.15(b) (1)) (Sec. 515 and 516 of the Act) (30 CFR Chapter VII Subchapter K). 2n; broad terms, the purpose of the detailed performance standards Specified in the Act are to assure that: ° all mining and reclamation is conducted in an en- vironmentally sound manner, with particular regard for protecting the hydrologic balance of the area, surface and groundwater quality, and to controlling the disposal of all mine wastes, pilings and spoils; 2 — 3 mined lands are restored to the approximate original contour; mined lands are restored to a condition that can support uses that are similar or "higher" uses than those before the operation occurred; mined areas are restored as contemporaneously' as practicable with the mining Operation; mined areas are revegetated with appropriate vegeta- tive cover, and underground mining operations protect against subsi- dence problems. The specific content Of the environmental standards for surface coal mining operations is discussed in Chapter 3 and is summarized in Appendix C of this report. Briefly, however, these standards for mining and reclamation Operations fall into three categories. First the Act establishes several performance Objectives that should guide all phases of the Operation. These principles include such goals as maximizing the ultimate recovery (as the coal, restoring the land-use capabilities of the mined area, restoring the original contours of the site, protecting the fish and wildlife in the area, and using mining and reclamation techniques which are suited to the unique characteristics of the site and which use the most advanced technologies available. Second, the law and regulations specify certain grocedures to be followed during the mining and reclamation activities. These include procedures for pro- tecting the hydrologic balance of the area; for developing water im- poundments; for limiting erosion and sedimentation problems; for manag- ing all spoils and wastes, especially hazardous and toxic wastes; and for revegetation Of the mine site. Finally, there are special pro- visions which address the unique problems associated with mining prime farm lands, alluvial valley floors and steep slopes. Permit System The above performance standards are implemented through a.permit system. This is essentially a license to Operate a strip mine on a specific tract Of land under specific mining and reclamation conditions. MOst coal exploration operations and surface coal mining and reclamation operations must have a valid permit to conduct operations. The objec- tive of such a system is to provide a means of planning the operation to ensure compliance with the performance standards (Sec. 506-508, 510-514), (30 CFR Chapter VII Subchapter G). States must have a permit system at least as stringent as and meeting the minimum requirements Of the system set forth in the Act and implemented in the regulations (30 CFR 732.15(b) (2)). Coal Exploration Operations: Any person who intends to conduct coal . exploration in which more than 250 tons of coal will be removed in the exploration area is required to Obtain the permission of the regulatory authority prior to exploration. There are various application, notice, and hearing requirements which must be met (30 CFR 776). Surface Coal Mining and Reclamation Operations: A valid permit must be Obtained prior to conducting surface coal mining and reclamation Operations (30 CFR 771). An application must be made to the regulatory authority and it must contain highly detailed information on legal, financial and prior compliance matters relating to the applicant, the environmental resources that may be affected by the mining activities, and the applicant's plan for mining operations and reclamation (30 CFR 778-784). In addition, information must be provided with respect to special problems such as alluvial valley floors (30 CFR 785). The permit application must be reviewed by the regulatory authority under a process providing for public participation in the form of notice of pending issues, access to information, conferences and hearings, and written cements. Criteria are established for the approval or dis- approval Of such applications (30 CFR 786). The regulatory authority's decision must be subject to administrative and judicial review (30 CFR 787). The permit system also must provide for systematic review of out- standing permits by the regulatory authority and for certain controls on the revision or renewal Of permits and the transfer, sale, or assignment of rights granted under permits (30 CFR 788). Bonding and Insurance Requirements Bonding provides backup protection for the environment, in the event the Operator does not adequately reclaim the land, and insurance provides backup protection for the public in the event of personal injury (n: prOperty damage (Sec. 509 and 519) (30 CFR Chapter VII Sub- chapter J). A state program must provide for bonding and insurance requirements at least as stringent as and meeting the minimum require- ments of federal law (30 CFR 732.15(b)(6)). After permit approval and prior to the commencement of surface coal mining and reclamation Operations, the Operator must file a performance— ‘2gnd Of a form, amount, and duration to be specified by the regulatory authority according to prescribed criteria. The bond must be for a minimum value of $10,000. Moreover, it must be set high enough to ensure that the reclamation, restoration and abatement work required of the Operator under the Act, the federal regulations, the state program and the permit would be covered if the work had to be performed by the regulatory authority in the event of forfeiture. Forfeiture may occur 2 - 6 where the terms or conditions of the bond are violated, the Operator fails to comply with the law, the permit is revoked or the Operator is unable to continue in business. The bond may be released -- upon application by the Operator -- only after all work has been completed and it has been determined to be successful. Notice of such application for bond release must be pro- vided to all affected persons and to the public at large. There must be Opportunities for written objections, inspection by the regulatory authority, informal conferences, and regulatory authority review and decision. In addition, there must be provisions for administrative and judicial review of the decision. An Operator, at the time of permit application, must submit cer- tification Of a public liability insurance policy providing for personal injury and property damage protection in an amount adequate to com- pensate all persons injured or property damaged as a result of the surface coal mining and reclamation Operation, or proof that the Op- erator satisfies other' self-insurance requirements under anl approved state program. Inspection and Enforcement Inspection and enforcement are conducted by the regulatory author- ity to ensure that a strip mine complies with the law (Sec. 517, 518, and 521) (30 CFR Chapter VII Subchapter L). The minimum criteria for approval of a state program (30 CFR 732.15(b) (5)(7) and (8)) in the area of inspection are as follows: An average of at least one partial inspection per month of each surface coal mining and reclamation Operation; An average of at least one complete inspection per calendar quarter of each surface coal mining and reclamation Operation; Periodic inspections Of all coal exploration opera- tions; Inspections upon the ‘basis of information (e.g., citizen complaint) giving rise to reasonable belief that a violation or imminent hazard exists; Inspections conducted on an irregular basis without advance notice; Right Of entry to, upon, and through Operations without a search warrant, except with respect to entering buildings; Access by inspectors to records and monitoring equipment and methods required by law to be main- tained, and Prompt filing of inspection reports. State programs also must contain enforcement powers and sanctions at least as stringent as the federal provisions and the same or similar enforcement procedures (Sec. 521(d); Sec. 518(1)). There are four basic enforcement tools: citations requiring remedial actions, civil and criminal penalties, permit suspension or revocation, and injunctive relief. States must provide enforcement sanctions in certain circumstances: Cessation Order upon Observation of a violation or condition or practice which causes or can reasonably be expected to cause an imminent danger' to the health or safety Of the public or a significant imminent environmental harm to land, air or water. Notice of Violation upon observing a violation of the state program, providing for remedial action and a reasonable time to abate the violation but not longer than 90 days from the issuance of the Notice of Violation. Cessation Order upon failure to abate under a Notice of Violation within the abatement period specified. Inspectors must be able to require remedial action, in interim steps, to abate a Notice of Violation, and to impose affirmative obligations, such as the use of men and equipment, to abate a practice or condition re- sulting in a cessation order in the most expeditious manner physically possible. State law must provide for civil penalties, of up to $5,000 per violation, for violations Of the state program requirements or of any permit issued thereunder. Mandatory penalties must be established for violations requiring cessation orders. In addition, state law must provide for a mandatory daily civil penalty of at least $750 for failure to correct a violation within the abatement period permitted for its correction. The total amount of the. penalty' must. be. determined by, consideration of the four criteria mentioned in Section 518(a) of of the Act: (1) permittee's history of previous violations at that operation; (2) seriousness of the violation; (3) whether the permittee was negli- gent, and (4) the demonstrated good faith of the permittee in attempting to achieve rapid compliance after notification of the violation. The penalties assessed (Hi the basis of these criteria must be at least as high as those provided for in 30 CFR 845 under the same circumstances. Civil penalties must be administratively assessed, within the time limits'set by Section 518(a-c) of the Act and 30 CFR 845. State law also must provide a permittee with the opportunity for a public hearing on the record regarding the violation and the penalty. However, failure Of the permittee to make payment into escrow at the time of requesting a hearing must result in a waiver of all legal rights to contest the violation or the amount of the penalty. The state also must impose criminal penalties at least as severe as and imprisonment at least as long as provided in Sec. 518(e—g) of the Act for the criminal offenses listed there. State law must provide for revocation and suspension of permits to mine, where it is found that a pattern of violations of any requirement of the state program exists or has existed and that the violations were willful or were caused by the permittee's unwarranted failure to comply. It also must provide for revocation or suspension of a permit in all circumstances comparable to those mentioned in Section 521(a)(4) of the Act and 30 CFR Sec. 843.13. Finally, state law must provide that the regulatory authority may seek injunctive relief from the state courts in those situations set out in Sec. 521(c) and 30 CFR Sec. 843.19, such as whens the operator fails to heed citations issued or to pay penalties assessed. Administrative and Judicial Review State prOgrams must provide for administrative and judicial review of regulatory authority actions, in accordance with the Act and con- sistent with federal regulations (30 CFR 732.15 (b) (15)). This means that administrative review must be provided in at least the following instances: ° Permitting and bonding actions (Sec. 514 and 519); Inspection and enforcement (Sec. 525); Informal administrative mine-site review Of all unabated cessation orders at the request. of the Operator; Formal administrative review of citations; 2 - 10 Informal administrative civil penalty conferences and formal administrative review of penalty as- sessments; Formal administrative hearings for the suspension or revocation of permits, and Informal review by the regulatory authority of action on citizen complaints of violations or immin- ent hazards (n: of inadequate or incomplete inspec- tions, and formal administrative review. Informal review is conducted by the regulatory authority itself. Formal review entails, among other things, review by an independent and impartial administrative judge, the right of any person who is or may be adversely affected to initiate proceedings and/or participate as a full party, and the rights to present evidence, cross-examine adverse wit- nesses, and to conduct discovery, in accordance with provisions of 5 USC 554 and 43 CFR 4. Judicial review must be available to any aggrieved person who participated in administrative proceedings with respect to all final "action of the State regulatory authority pursuant to an approved State program." (Sec. 526(e)). This includes appeals of decisions in the formal administrative proceedings listed above, and other proceedings of record, such as state rulemaking and proceedings for the designation of lands as unsuitable for mining. Designation of Lands Unsuitable for Mining A State program must contain a system for designating lands as unsuitable for mining (30 CFR 732.15(b)(9)), (Sec. 522), (30 CFR Chap- ter VII Subchapter F). States, in other words, must provide a process by which any person who is or may be adversely affected by mining has 2 - ll the right to petition to designate lands as unsuitable for all or cer— tain types of mining. The regulatory authority must provide for public notice Of and hearings on a complete and non—frivolous petition within certain time frames. The petition must be granted if reclamation is not technologically and economically feasible, and it may be granted upon consideration of other factors such as historic, cultural or esthetic reasons. In connection with this petition system, the state must develop a data base and inventory system, accessible to the public, to permit evaluation of reclamation feasibility (30 CFR 762 and 764). Congress already has designated certain areas as unsuitable for mining. (Exceptions are made for those operations existing on August 3, 1977, or for lands subject to valid existing legal rights to mine.) These Congressionally-mandated unsuitable areas include: °' Lands within the boundaries of the National Park System, the National Wildlife Refuge Systems, the National Systan of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act and National Recreation Areas designed by Act of Con- gress; Federal lands within the boundaries of any national forest, with exceptions; Lands where mining will adversely affect any pub- licly-owned park or places included in the National Register of Historic Sites, with exceptions; ° Lands within 100 feet of the outside right-Of-way line of any public road, with exceptions, and ° Lands within 300 hundred feet from any occupied dwelling, unless waived by the owner thereof, or within 300 feet of any public building, school, church, community, or institutional building, public park, or within 100 feet of a cemetery. In reviewing permit applications, the state must determine whether the permit must be denied, limited, or conditioned because of operations 2 - 12 on these lands. In some cases mining is allowed in areas designated unsuitable by' Congress provided certain. conditions are. met, usually involving special hearing or findings by agencies with jurisdiction over the affected area (30 CFR 761). Public Participation in the Regulatory Process The general principle for the approval or disapproval of state programs with respect to citizen rights is stated at 30 CFR 732.15(b)(10). The State regulatory authority must have the authority under state laws and regulations and the state program must include provisions to: "Provide for public participation in the development, revision and enforcement of State regulations and the State program, consistent with public participation requirements of the Act and this Chapter. . ." Thus, no state program can be approved which does not provide at least the same level of citizen participation in all phases of the state program as do the federal statute and regulations. To be approved, therefore, a state program must provide for public participation in the development and revision of state statutory provisions, state regula- tions and standards, permits and reclamation plans. There also must be provision for public participation in the en- forcement of state laws, programs and permits, in accordance with the Act and the Secretary's regulations, including: the right to an inspec- tion where information gives rise to reasonable belief that a violation or imminent hazard exists; the right to accompany the state inspector onto the mine site; and the right to informal review of state inaction (failure to inspect or to issue citations). 2 - 13 The public must be afforded at least the same access to the admin- istrative review process as provided under Section 518 and 525 of the Act, 30 CFR Parts 842, 843 and 845 and 43 CFR Part 4, and at least the same access to the state courts for judicial review, citizen suits and damage suits as is provided under Section 520 and 526 of the Act. The state, moreover, must provide for the award of costs and expenses in- curred for public participation in state administrative and judicial proceedings, as provided under Section 520(d) and 525(e) of the Act and 43 CFR 4. Citizens' rights to initiate or to participate in the process of the designation of lands unsuitable for mining must be in accordance with the Act and consistent with federal regulations, including the right of "any person having an interest which is or may be adversely affected to petition for the designation of lands unsuitable for min- ing". Finally, to make possible the exercise of all these rights, the public must be afforded as much access to program information. and records as is permitted under the Act and regulations. Miscellaneous Requirements of a State Program In addition to the major core elements of a state program discussed above, there are a number of other miscellaneous features which a state regulatory program must adopt. These include the following: States must require the training, examination and certification of blasters (30 CFR 732.15(b)(12)). States must monitor, review and enforce prohibitions against direct and indirect financial interests in coal mining Operations by employees of the state regulatory authority (30 CFR 732.15(b)(11)). 2-14 States must have a small operator assistance program (30 CFR 732.15(b)(13)). States must provide certain protections for em- ployees of the regulatory authority (30 CFR 732. 15(b)(14)). Coal mining incidental to government-financed con- struction may be exempted only if certain procedures are followed (30 CFR 732.15(b)(4)). States must provide for cooperation and coordination with the federal government in certain respects (30 CFR 732.15(b)(l6)). OPTIONAL PROGRAM ELEMENTS We have discussed the requirements for an approved state regulatory program. There are also optional programs developed under the Act in which a state may participate: (1) research and education programs and (2) the abandoned mined lands reclamation. program. States are not required to participate in these "ancillary" programs in order to have an approved state regulatory program. To participate in these other programs, however, a state must meet certain eligibility requirements. Research and Education Programs The Act authorizes funds "to assist states in carrying on the work of a competent and qualified mining and 'mineral resources research institute." The institute is to be located at an existing qualified state institution. or other institution. as provided in. the Act. The purpose of these institutes is to "conduct research, investigations, demonstrations and experiments . . . and to provide for the training of mining engineers and scientists through such research . . ." (Sec. 301). Separate funds may be provided for individual research projects (Sec. 302) (30 CFR 890). 2 - 15 The Act also provides funds for university coal research labora- tories. There are to be ten universities selected for the program. They are to provide facilities for interdisciplinary research projects in "any discipline ‘which is related to the development of adequate energy supplies in the United States." These laboratories are to also have a "test lab for coal characterization" and "provide research and develOpment activities for students engaged in advanced study." (Sec. 801). Finally, energy resource graduate fellowships are designated for students in acceptable Masters degree programs. The fellowships provide up to $10,000 per year for up to two years and also allow for $500 for each of the recipient's dependents (Sec. 901). Abandoned Mined Lands Reclamation Program Under the abandoned mined lands reclamation program, the Federal government levies a reclamation fee on all coal mines to reclaim lands that were mined for coal or which were affected by mining, wastebanks, coal processing or other coal mining activities, and abandoned or left in an inadequate reclamation status prior to the passage of the Act (30 CFR Chapter VII, Subchapter R) (Title IV of Act). States with approved state regulatory programs may apply for an approved state abandoned mine reclamation program under which 50% of the funds collected in reclamation fees from mines in the state are al- located to that state. The balance of the funds also may be granted to a state with an approved abandoned mine reclamation program at the discretion of the federal government. 2-16 A state must meet the following requirements for an approved aban- doned mine reclamation program: 0 It must have an approved regulatory program; It must have the legal authority and capability to implement the program; It must submit a State Reclamation Plan and plan of annual projects, and The State Reclamation Plan must identify areas to be reclaimed, identify the purposes for which the reclamation is proposed, identify the relationship Of the lands to be reclaimed and the proposed re- clamation. to surrounding lands, and identify the specific criteria for ranking projects to be funded. A state can request federal aid for the abandoned mines program and for specific projects by submitting annual requests. The allOwable costs include the actual construction costs, operating and maintenance costs, planning and engineering costs, construction inspection costs and necessary administrative costs. DEMONSTRATED CAPABILITY TO IMPLEMENT THE PROPOSED PROGRAM A state must demonstrate its capability to implement, administer and enforce the proposed state program in the areas identified above, showing sufficient technical and administrative personnel and sufficient funding. in) meet this general requirement, the state must demonstrate in detail its capabilities in a number of areas, including the admin- istrative systems the state has developed to implement, administer and enforce the extensive regulatory requirements of the program, the organizational structure ofthe state's regulatory agency, the personnel the state has employed to staff the program, and the physical resources the state has available for use in the program (See generally 30 CFR 732.15 and 731.14). 2 - l7 In each area, the state must show that it has the capability to carry out the purposes Of the Act and successfully implement the state program. For example, it is necessary to show the state's capability to conduct the minimum number of complete inspections required. For this task, it is necessary to indicate the number of qualified inspectors on hand, the number to be hired and trained, the availability of technical equipment such as water quality monitoring devices, sufficient mobile vehicles and adequate office space and support staff. The actual re- quirements in these categories depend upon the numbers and sizes of the mines, the distances involved and other factors. Administrative Procedures After specifying the controls that must be imposed on mining Opera- tions, the Surface Mining Act sets guidelines for the way that regula- tory authorities implement them. It does so by prescribing certain administrative procedures that must be followed in the agency's decision-making process for each of the progrann elements described above, and the agency regulating the surface mining of coal must adopt rules and regulations which ensure that these procedures will be fol- lowed. In general, the administrative procedures required in P.L. 95—87 are characteristic of all government regulatory programs. The decision- making process must be Open. Decisions must be based on findings of fact and issued in writing. They should be timely. The persons being regulated and other interested and affected parties must be provided with Opportunities for hearings prior to final determinations, and for 2-18 administrative and judicial appeals of the decisions. Also, the of- ficials of the regulatory agency must remain free of potential con- flicts-Of-interest as they carry out their duties. The Congress has provided guidelines of these processes throughout the Act. Technical Capabilities The implementation of a regulatory program under P.L. 95-87 also will require sufficient staffing, funding and related technical support. Evidence of these capabilities is a condition for approval of state regulatory programs under the Act. The purpose of this section is to identify briefly the provisions in the Act that specify standards for staffing, data systems and funding. These issues, as they relate to the Indian regulatory setting, will be analyzed further in later Chapters. Two features of the Act are important to understanding these re- quirements. First, the Act is very flexible in this matter. There are no measures of the types or levels of capability that should be present. Instead, the adequacy of a proposed program will be judged by criteria develOped by OSM. This lack of specificity in the Act sharply contrasts with the detailed prescriptions for performance standards and admin- istrative procedures. Second, the Act provides for substantial federal assistance to states to lessen the financial and other burdens which the law imposes on them. These grants and technical assistance measures also help to ease the transition to a full regulatory program within the time frame established in the Act. Thus, many needed capabilities in a prOposed program may be developed with the help of federal aid. Staffing The Surface Mining Act states that the regulatory authority must have sufficient administrative and technical personnel to effectively 2-19 implement the regulations. Further, Section..517(g) stipulates that employees of the regulatory agency must have no direct or indirect financial interest in coal operations programs. No other standards or criteria are given. OSM will exercise its judgment in determining the types of skills needed for the tasks implied by the regulatory process (e.g., processing petitions and permit applications, doing the technical analysis of the petitions and applications, performing inspections, presiding over hearings and issuing decisions, etc.). In addition to identifying the types of skills, OSM will judge the level of staffing needed to meet the workload for each activity (e.g., the number of inspections needed for a given set of mines). The provision prohibiting conflicts of interest requires employees of the agency to file financial statements which will be maintained and enforced by the Secretary of the Interior and the regulatory authority. These activities also are subject to oversight by Congress. Data Systems The regulatory programs created by the Surface Mining Act require the analysis of a wide range of data and information. For example, Section 522 (regarding the program for designating lands unsuitable for surface mining) states that the regulatory authority' must base its decisions upon "competent and scientifically sound data and informa- tion." However, Congress recognized that such data is not widely or easily accessible at this time. Therefore, the Act does not require that this capability be fully develOped at the time of state program approval, and it also provides for federal assistance in developing it. For example: 2 - 20 ° Section 522(a)(4) (for designating lands unsuitable for surface mining) only requires that the regula— tory authority "has developed or is developing . . . a data base and an information system which will permit prOper evaluation of the capacity of dif- ferent land areas . . . to support and permit re- clamation of surface coal mining lands." (Emphasis added); Virtually all of the data and information needed to evaluate permit applications must be provided by the applicant. The regulatory agency is responsible only for information on the hydrology of the area surrounding the proposed site, and ° Section 201(c)(8) directs OSM to "develOp and main- tain an information and data center on surface coal mining, reclamation, and surface impacts of under- ground udning . . . (and to) make such data avail- able tO the public and the Federal, regional, State, and local agencies conducting or concerned with land use planning and agencies concerned with surface and underground mining and reclamation operations." Funding Finally, the regulatory authority must demonstrate. that it has sufficient funding to implement a program that is consistent with the Act. Here again, Congress opted for case-by-case determinations of funding needs in lieu of prescribing dollar amounts. Further, the law provides two sources of revenue to help cover program costs - permit fees and grants-in-aid from the federal government. First, Section 507(a) requires all prospective permittees to submit a fee with their applications. In general, the size of the fee and the payment schedule are left to the discretion of the regulatory agency. The fees may be less than or equal to "the actual or anticipated cost of reviewing, administering, and enforcing" permits issued by the regula- tory authority. However, the fee cannot exceed these costs. Second, the Surface Mining Act provides supplemental funding for implementing state regulatory programs. Section 705 authorizes the 2 - 21 Secretary of the Interior to make annual grants to states. These grants may cover up to 80% of the total costs incurred by a state in the first year; 60% of the total cost of the second year, and 50% of the total costs incurred during each of the following years that the program is in effect. The Act also provides for federal funding in certain limited instances where the state performs an activity that would otherwise be required tn? the federal government. This situation arose during the start-up or "interim" phase of the program when states could be re- imbursed for performing inspections. A state can also receive federal funds when it undertakes certain enforcement responsibilities on federal lands pursuant to a "cooperative agreement" with the federal government. 2 - 22 SECTION II THE REGULATORY SETTING SECTION II THE REGULATORY SETTING The preceding section of this study has discussed the requirements of the Act; it has detailed the general objectives at which it aims, and the ways in which they are to be achieved on state and federal lands. In addition, it has considered the areas of flexibility in the Act. The Act does not afford much flexibility in the standards it sets; a regulatory authority must achieve those standards or stricter ones. It does, however, allow for some variations in the way a regulatory agency is constituted and in the procedures it follows. The coal-owning tribes do not necessarily differ from other actual or potential regulatory authorities in those respects which are crucial to the Act. The tribes can and would maintain the standards set by the Act or more stringent ones. They can and would observe those practices and procedures which the Act stipulates in order to ensure that regula- tory actions are open and equitable. There are, however, some ways in which Indian tribes differ from other communities, and some of these differences might be reflected in those areas of regulatory action where the law allows for flexibility. In other instances, unique conditions or special needs may be provided for in new legislation specifically de- signed to establish an Indian lands programs under SMCRA. This section of the study focuses on the Indian lands regulatory setting itself. It discusses those physical and institutional charac- teristics of Indian lands which are relevant to surface mining control and reclamation in order to analyze how Indian regulatory authorities would functicnl and ‘what special needs and unique factors should be considered. The first chapter in this section presents an overview of the general physical characteristics of the Indian lands with which this study is concerned._ These 25 reservations comprise the Indian Lands Study regulatory setting - those Indian lands which contain coal re- sources and where surface mining reclamation and regulation are most likely to occur. The reservations of the coal-owning tribes share some physical characteristics with each other, and with other mining areas in the states in which they are located. Although many characteristics are common, there is also great diversity among the coal-owning tribes and within their reservations. The second chapter of this section examines the governmental institutions of the coal-owning tribes. Thus, whereas the first chapter introduces the general physical setting of the study, this chapter introduces the governmental and institutional setting in which the Act will be administered. Together these two chapters set forth the background from which other parts of the study proceed and are considered. The three chapters which follow -- Chapters Five, Six and Seven -- consider other aspects of the tribal regulatory setting which are of Special significance to mine regulation: the tribes' institutional and technical capabilities from the point of view of the Act's requirements. Chapter Five discusses the tribal court systems, because it is critical to the administration of the Act that a community have a court system to which issues can be taken and appeals made. Chapter Six describes the existing tribal laws and regulations which are relevant to the Surface Mining Act and notes those which can be used and those which can be amended for use in the process of administering the Act. This chapter II - 2 also discusses existing tribal administrative procedures and experience, and takes note of those which are relevant to the regulatory procedures stipulated by the Act. Chapter Seven surveys the data and information systems which the tribes already possess or to which they have access. In numerous ways, the compilation and storage of data pertaining to physical resources are required for surface mining reclamation. and regulation, and it is important to determine which types of data the tribes already possess and which they can readily obtain, if needed. Finally, the Eighth Chapter identifies those Indian lands which may have special or uncertain status with regard to surface mining regulation under the existing definitions and provisions of the Surface Mining Act. II-3 CHAPTER 3 GENERAL CHARACTERISTICS OF TRIBAL COAL LANDS CHAPTER 3 GENERAL CHARACTERISTICS OF TRIBAL COAL LANDS This chapter presents a brief and highly generalized overview of the study area's physical setting. The potentially proprietary nature of detailed information on the extent and quality of tribal coal re- sources, as well as of some other physical characteristics of the reservations, necessitates a general treatment of these features in this 1/ report .- Introduction Of the 25 Indian reservations that contain coal or lignite re- sources (Figure 3-1), nine are located in the Northern Great Plains Coal Province, 12 in the Rocky Mountain Coal Province, and four in the Interior Coal Province of the Midwest (U.S. Bureau of Mines, see Figure 3—2). Eight Of the tribes have deposits of coal which are being actively mined or in which there is definite interest by the coal indus- try to mine (Crow, Northern Cheyenne, Fort Berthold, Navajo, Hopi, Southern Ute and Northern Ute, and the Ute Mountain Ute), three tribes have known coal or lignite deposits of more limited current interest to the coal industry (Fort Peck, Mescalero Apache and Zuni Pueblo), and the remaining 14 tribes are located in areas in which coal or lignite is known or can be expected to be found, but is of more marginal or uncer- tain value at the present time. ll CERT supports tribal efforts to maintain the confidentiality of commercially sensitive data, and has adopted a firm policy that such information be made available only at individual tribal dis- cretion. CERT-OSM Indian Lands Study A . / ‘ ,4. I , p I ~ I',‘ gai‘ -.r Egg; (3?, , ~.J" g ‘.(. . I .70, , -.\ i L; ." -.~_ .—.~_ii _. ,pz Albers Equal Area Projection SCALE 1:10,000,000 Adopted from maps In US National Atlas Ru hard files Harrison, I969 Approximate Location and Generalized Relief of Indian Reservations containing Coal Resources was: cc 23:5 ea .22... use: 95 «O 39:32.— .aou 13:20:90 .\ I.“ 4°30... $1 .21: .023“ I}, .owa. 3.22m :35 2:5... - o a. .5 .o no: .30 6.96.: So: v.33: d .93 softlinsm M \7 {Ix c 9v \ k w a .25 uaoEEEE (z<_m_30.. B 9 l a z u 0 u a X W OPS/T u 3 a O // . . a.o¢ooo \ \ I v- I. ‘z.5o¢(o 1” xpoom 1.. \ 1’0z14110 \ ./ {ll-li i\ as. \ b\\l\‘ xpxoz 42.40%... «I 4 2.01.) \- . . .l 5.4.0:. .10 <>Ox<° ”inn/:11 z.m200w_l semi" nan ’u ."' " auiu '\ <~Omu2~2l COMMON PHYSICAL CHARACTERISTICS OF WESTERN TRIBAL COAL LANDS Tribal coal lands in the Western United States share the common characteristics (fl? generally poorly developed soils over usually flat- lying to slightly dipping sedimentary rocks, and an arid or semi-arid climate. Most tribal coal lands receive less than 16 inches annual precipitation and in some areas very arid conditions exist where precip- itation is less than 8 inches. A corollary characteristic that is related to the arid climate is the general scarcity of surface watergl and common reliance on groundwater as a source of water for human and livestock use. Within the generally common themes of bedrock geology and arid climate, the 25 reservations exhibit many variations of landforms, soil types, and vegetation. Current vegetation on tribal coal lands, for example, ranges from the desert shrublands of the Navajo and Hopi to the dryland wheat fields and grazing lands of the Fort Berthold Reservation in North Dakota and the ponderosa pine forests on portions of the Crow and Northern Cheyenne Reservations. Grazing for livestock is the domin- ant land use on most tribal coal lands, but carrying capacities vary widely, from over 200 acres per animal unit annually in some of the pinyon—juniper areas (H? the southwest, to 10 acres or less per animal unit in North Dakota (Ogden 1977). NORTHERN GREAT PLAINS COAL PROVINCE The Northern Great Plains Coal Province, as delineated by the U.S. Bureau of Mines, coincides roughly with the northern portion of the 2] It should be noted, however, that a number of tribal coal lands are located near or adjacent to major reservoirs. For example: Yellow- tail Reservoir (Crow), Fort Peck Reservoir (Fort Peck), Boysen Reservoir (Wind River), Lake Sakakawea (Fort Berthold) and Lake Oahe (Standing Rock and Cheyenne River). 3 - 4 Great Plains Physiographic Divison (Figure 3-3), and includes the Powder River Basin, the Williston Basin and the Sweet Grass Arch as major geolOgic features. The topography of the province basically consists of stream-dissected rolling hills and plains, with breaks or sharply eroded hills in some places. Table 3-1 compares some of the general physical characteristics of tribal coal lands in this regions}! Coal Resources Detailed information on the extent and quality of tribal coal resources in the Northern. Plains is considered proprietary, but as Figure 3-4 shows, a number of reservations are underlain by substantial areas Of coal-bearing rocks. The Northern Cheyenne and Grow reserva- tions contain by far the largest surface-mineable coal resources of any of the tribes in the region. Coal seams of the two reservations are sub-bituminous and strippable reserves rank on the order of billions of tons. These coal deposits are located in nearly horizontal sedimentary rocks of early Tertiary (Paleocene) age. Coal deposits of the Ft. Union region of northeastern Montana, North Dakota and South Dakota are lignites of Cretaceous and Paleocene age. The Ft. Berthold and Ft. Peck Reservations of this area contain fairly substantial strippable lignite reserves, and the Standing Rock Sioux and the Cheyenne River Sioux in South Dakota have lignite deposits of more marginal current value. _3/ This table and Tables 3-2 and 3-3 are drawn primarily from the National Atlas of the United States. These tables, and the accom- panying discussion are intended to show broad similaries and dif- ferences between tribal coal lands; it should be realized that detailed site specific factors even within a limited geographic area within a reservation can vary greatly. CERT-OSM Indian Lands Study 0"“ O .0 fig! \ ’o I as "a o ‘ . ‘3“ 5 s‘ . ‘ 0 . a“ ‘ so $ 00.}. o ’9 W?” 0:. .0 “o? 3:... 5.0 ‘0 o O '9. S3} at .‘ o .o. as. o ‘g: 0“. V '2- "o '0 .o:.? ..‘.. . 0% o. at O O 'ofiefio: o 0 o. \ .. :. . (3 O :5 2;. .v- 22 ‘o O is ' . o '9 o . .. 0 . Q ‘ o~°o A... 'v. . I O l/ 0’ / [ICES I ///////I (III ’0 s 5' ' 9. . .. .-o:o:9:9.’ .0 s .‘.‘.'.O 9 o 01‘. v v . Q...’o‘. ‘00....0.O.O.O.Q.. " t‘ ' "0‘ ‘9 ’0‘ ‘9‘. . O o . 9 0 6.9.9.0” Oo‘o.o° "to. :o‘ ..:..:‘£L2:'I; 0 to O 0 3:35;???» ‘. "s’oo ' .0 «swag?» Q 0 O O 0'. m: :ogo:g:o:o$,:3.¢.\: ‘ O 0.9.: o 0‘. O c Q 90:. W68?“ III / \ o. 6‘93: .3... @454? O :o Q 01 . '0'. O .eto O 0.. {.0 0". o o . . .o‘so. eagyofi' 3%.; . . 9.9.03 .O.o.o’-:.’ v o’y/j: s: was w 0 flf’oo’o’.’ ‘. assasszorRés‘Fs “assess. we}... I ' gogxz‘aaaefiésgw ' 'a .04? 2.2.3.5: “0 . 0” ’9'. I '0 0’ o ‘0 04’? o o . . s, 0’ ' Albers Equal Area Prolection . 51%» SCALE 1210000000 Fig. 3-3 °= V00 no 300 Ann mu ° loo no no Am 500 we no % Approximate Location of Indian Lands Study Reservations in Relationship to Major Physiographic Divisions Nevin M. Fenneman 1928 CERT-OSM Indian Lands Study Blackfeet \\\ / / / I / / / I / / / / / / / I / I I / / / I I / l / / / I / / \\ \\\\\\ l/// / //// / ficka . l . (g Potawat L e f Anthracite, semianthracite, and meta-anthracite [Um Low - volatile bituminous :: / / j j / z / / I / / I / / / uni i” a una . . . . . / g Medium - and high - volatile bituminous 5 3:22;; Subbituminous @ Mescalero Lignite and brown .- |.- 'l Coking coal [deposits with present or past 0 I - Albers Equal Area Projection production 0‘ coal for COI‘IIISJ SCALE '"0'000'000 Fig. 3-4 Source: Compiled by U.S. Geological Survey, 1967 _— r. .=—- c 7 i w; 101‘ IIUJIKYII5 Location of Indian Lands Study Reservations in relationship to major Bituminous and Subbituminous Coal and Lignite Fields of the Conterminous United States mHHOumsfimH< mnemomumuo NDOHm mononuHOumD . mcfimHm umOHU . mamuomHmm muflawwq nm\oz xoom wafloamum muOOSDHOumD m 3 mHHouoonu< % o mcflmam ummuu msooomuouo msocwaduanonm Hz .mmm m.%om axuom m M V t.A mdoumimé m. w m adenoflwna a w. ow monocquumD a s a mcwmam amouu mcouomamm moonoadufionsm Hz oncmkmco cuocuuoz s we 0 3 u u u.n mononuHOumD t.s m. mHHouoonu< ¢.%wau mafimam ummuo osmoomamm ouacwfiq Hz xumm upon a m a D.1.o a 1.1. moflwumuumz w w .m. maaouonamu<. m w m mcwmam ammuo mnomumumuo moonwasufioosm Hz emcxaom uuom n a m. A u u mononuuouma m.m.3 msomomumuo maaouoowwu<. m M.m maHmHm ummuo onooomamm ouficwaq oz vaocuumm uuom e e 1 0.1 e T.I.T. wmamnooomuu 3 Wm. mfiouofiwé m. m. 1 monocquums. n.m w mnfimam umouo mcooomamm msonflanuHQQSm 9: 30pm M Jan .m u s mHHOumswwum. m.m n. msooomumuo xnowm monogamouma . m.m mnHmHm momma mcooooamm ouwcwfiq am uo>Hm onomzoco m. I Z mHHouonoanmm mHHouonku< mnamam umouw msomomuouo mnocfianufim Hz oommxumam mawom HmumeH oumafiau noamfi>fia mw< moounommm Hmoo oumum nofium>pomom nanomstfimhnm owwoaouw mona>oum Hmou mGHmHm undue aumnuuoz one as among Hmoo Hmoaufi mo moaumaumuomumnu Hmoammnm Hmuocoo .Him mqm=awfiquH monocquum: musonuuoauuoe mnfiwumaamm monocuuowquH mvwwmuumz muscuHOHOHmu maaoumaawu< mononquHHHOH mwfiwumaamm monocuuoauuoe mmamuoo0%uu mofiwumaamm mvwwumaamm mHHoumDHmH< meHmeHmmm monocqufiquH maaom Hmuaaww, °uotneinp SieaA IBJBABS go saqfinOJp Isnorssooo on BIQBJBUIUA pus ptis st anemtra sq; 'saqout g ueqn ssaI BAIBDBI oorxam nan pus euozriv ut suotieA °saqout 91 pus 8 uaamaaq uotnentdto ~31d Isnuue afleiane us eAtaoei spuet Ieoo Teqtii 330w -13831 BWOS J0 SJIBJ damasao mammumam .OHOU :fimmm wCHEO%3 msmoumam .OHOU .mux hxuom oavowz one mammumam .OHoo mammumflm .OHOU mammumam .oaoo mwcmm w afimmm wsmoumam .OHOU mammumHm .OHOU owsmm w :Hmmm mammumam .OHOU cOHmH>Ha oasmmuwo«mhcm mnemomumuo mamoomamm msomomumuo msomomuouo msomomuouo mDOGUNUQHU msooomuouo wsomomuouo mnooomumuo mnomomumuo wflowomumHU mnooomumuo ow< oawoaooo muonfiabuannsm msocwadufinnnm mnoafiadufim mnoafiadufim msoafianuaconm mam moonfiasufim msocwasufincam msocfiasuam msoaaBSuwnnam mnocfiadufinpsm maoaaasufinnnm msoaaasoasnsm moonsommm Hmoo .muna>oum Hmou afimuanoz kxuom mnu as mused Hmou HmnHuH mo woaumaumuomumno Housmhnm Hmuoaoo a: 22.00 HD 00 HD N< N< mumum .Nlm mqmam was; aflmuasoz mu: amuse mam amuse: QUD CHOSUDOW Onm>mz onoma< oumamomoz maswmq onomn< mHHHumowh onuma< uuom mEOu¢ coaum>uommm 12 Physiographic Division. The coal beds associated with this region are located generally in Upper Cretaceous rocks and in New Mexico the coal seams are usually sub-bituminous. Coal mined at the Black Mesa mine on the Navajo and Hopi Reservations in Arizona is high rank sub-bituminous coal that may grade into bituminous coal in places, and coal on the Southern Ute and Ute Mountain Reservations in southwestern Colorado and northwestern. New Mexico is generally bituminous in rank. Mineable reserves (n1 those reservations located near the Four Corners area are very substantial and are generally accessable by surface mining methods. Coal lands of the Uintah and Ouray Reservation in northeastern Utah are located within the Uinta Basin. The main coal-bearing rocks in this region are late Cretaceous in age. Most of the coal is bituminous, and because of the depth of cover, strip mining potential is currently limited, so most mining will have to be by underground methods. The Mescalero Apache Reservation of the Basin and Range Physio- graphic Division contains bituminous coal seams located in the Upper Cretaceous Mesaverde Group. Some coals in the isolated deposits of the Basin and Range Province have produced excellent quality coking coal as well as anthracite. However, the geologic structure of most of these fields is quite complex, and difficult mining conditions caused by faulting and igneous intrusions have discouraged large scale mining. The Wind River Reservation, located in the Wyoming Basin, includes both Cretaceous and Tertiary coal—bearing formations. Coal beds are usually sub-bituminous, and although they may reach a maximum of 17 feet in thickness, they are often steeply dipping, again creating difficult mining conditions. 3-13 Soils, Vegetation and Land Use The soils of the Colorado Plateau are primarily "Entisols" (e.g., Torriorthents, soils with poorly develOped soil horizons formed on recent erosional surfaces). They are often shallow to bedrock (less than 20 inches) and are dry for long periods of time. In the Four Cor- ners area arid soils (e.g., Haplargids) are also common. These are desert soils that do not have water available for long periods, but have well developed soil horizons, including a clay enriched "B" horizon. Prominent soils in the Black Mesa area are also "Aridisols" (Natragids), which are poorly developed and often badly eroded. Organic matter content and plant nutrients tend to be very low in these soils (Thames and Verma, 1975). Forest soils (Cryoboralfs) are found at some higher elevations in the region. Specific soil types on different coal lands Often vary greatly, even within a small area. Los Alamos County in northwestern New Mexico, for example, has over 50 distinct soil types mapped within its boundaries. Vegetation on the Uintah and Ouray Reservation in northeastern Utah also varies widely, ranging from salt-bush-greasewood and sagebrush to pinyon juniper and mountain mahogany oak at higher elevations. In the central Colorado Plateau region, grama—galleta grass steppes and great basin sagebrush are common vegetative cover. At. higher' elevations pinyon-juniper woodland and bushland are found. The dominant use of tribal coal lands in the Rocky MOuntain Coal Province is for grazing sheep and cattle. The productivity of these lands for range is generally lower than in the Northern Plains due to the greater aridity. Different ecosystems in the region vary greatly in grazing capacity, ranging from about 240 acres per animal unit per year 3-14 for pinyon juniper through 100 acres for sagebrush to 60 acres for desert grasslands (Ogden 1977). Rangelands are sometimes in poor condi- tion due to past overgrazing and related soil erosion. Climate and Water Resources Most of the tribal coal lands in the Rocky Mountain Coal Province receive an annual precipitation of between 8 and 16 inches, but some areas in the Four Corners region may receive less than 8 inches. Rain- fall in any given year is extremely variable and periods of drought where rainfall is below average are more common than years where rain- fall is above average. Areas receiving less than 8 inches of pre— cipitation have very sparse vegetation, while those regions that receive between 8 and 16 inches generally support grasslands. A few areas at higher elevations receive 16 or more inches annually and support some trees. The Uintah and Ouray Reservation in Utahvis located in the Green River drainage basin. Much of the smaller tributary drainage is inter- mittent, and the dissolved solids content of most tributary waters is high, particularly during low flow, with sodium, sulfate and chlorine being the major. ions. During high flows the sediment loads of both the major and tributary streams in the area is very high. Alluvial aquifers are the source of most groundwater supplies in the region, though in some areas the water quality is poor, especially below irrigated areas. Small supplies of groundwater can be found in bedrock aquifers. The San Juan River is the main perennial stream that drains the reservations located in the Four Corners area. The river has moderate to high sodium and sulfate content, especially below irrigated lands, and during low flows the dissolved solids content of parts of the San Juan and many of its tributaries exceeds 1000 mg/l. Some of the highest 3-15 erosion rates :hi the country are found in this region and during high flow the San Juan and many tributaries may carry suspended sediment in excess of 50,000 ppm. Groundwater is obtained from stream alluvium and a few bedrock aquifers. The river alluvium yields moderate to large supplies of groundwater, but in many areas it is of poor quality. 4/ Yields from bedrock aquifers are generally moderate:- TRIBAL COAL LANDS IN THE INTERIOR COAL PROVINCE Four small reservations in the Midwest are located in areas where, geologically, coal can be expected to occur. The Iowa Tribe of Kansas and Nebraska, and the Kickapoo and Prairie Potawatomie tribes, both of Kansas, are located in the western region of the Interior coal province where coal seams are generally thinner and of poorer quality (higher ash and sulfur) than are the main producing fields of this province, which are located in Illinois, southwestern Indiana and western Kentucky. The I Isabella (Saginaw Chippewa) Reservation is located in Michigan where the coal deposits, which are thin and discontinuous, are even more marginal. Coal fields in the Midwest are Pennsylvanian in age and bituminous in rank. There is a limited amount of surface mining in southeastern Kansas,“ outside of the areas where the reservations are located. Michigan has no active commercial coal mining. All midwestern tribal coal lands are located in the Central Lowland Physiographic Province which has a generally flat to rolling topography of gentle relief. Soils in Kansas and Nebraska are predominantly prairie soils (Argiudolls and Argiustolls) with a dominant natural 4] The slurry pumping system from the Black Mesa Mine to the Mohave Station has been using fairly large (3,200 acre ft/yr. 1) quanti- ties of good groundwater annually for several years. 3 - 16 mHHOumswwu< assessawn< wHHoumsawu< maaossawu< moOSDHOHnmm mesmeaaamm mHHOumSwwu< assessawu< masom Hmuamse wfianfipsm sasscnam vwasm saasapsm mumBHHU mwan3OA Hmuuaoo mvcmasoq Hmuuamo mommasoq Hmuucoo mvamazog Hmuuamo cOHwfi>Ha OHchMmOfimzcm nowam> iH%maamm amanm> iahmcnom amacm> iahmcaom cmaam> iahmccom ow< OHwOHOOo moonaanuHm maoafianufim msoafianufim mDOaHESufim mmounommm Hmou .moafiboum Hmoo MosumunH who :a mound Hmou HmnHHH mo mOfiumHumuOmumnu HmOHmmsm Hmumamo mm mm H2 mz\mM mumum .mtm MAmummmm 3 - l7 vegetation of bluestem prairie. The climate is sub—humid bordering on semi-arid, and is not subject to long-term droughts. Reservations in Kansas are part of the central feed grazing and livestock region which is one of the outstanding grain producing regions of the world. Crops and grazing are the dominant use of the land. The Isabella Reservation in Michigan is generally overlain by glacial deposits on which forest soils (Hapludalfs) are dominant; vegetation is generally northern hard- wood forest with some pine. All tribal coal lands in the Midwest are located east of the 100th Meridian, and consequently, the period of liability for revegetation under SMCRA would be five years rather than the minimum of ten years required in the West. Also, the restrictions on alluvial valley floor mining, which were designed for areas west of the 100th Meridian, would not apply to mining on these tribal coal lands. Any disturbed coal lands on reservations in the Midwest that previously had been in crop production, however, probably would have to be restored under the spec- ial provisions in the Act for prime farmland. TRIBAL COAL LANDS AND THE PERFORMANCE STANDARDS IN SMCRA Section 515 of the Surface Mining Control and Reclamation Act of 1977 specifies 25 performance standards that must be met by coal mining and reclamation Operations. Since tribal coal lands cover the range from the most unfavorable to the most favorable general physical charac- teristics for mining and reclamation in the West, the Act's performance standards for protection of the environment should provide the same environmental benefits to the tribes as will be provided to mined 3-18 private and federal lands in the West. A sample of performance stan- dards in the Act that are of importance in the West includeréll l. Postmining;land use. Mined land must be restored so that it can support its original use or an approved higher or better use. It is possible that effective reclamation and prOper management after mining is completed could improve the productivity of degraded rangelands. In most productive areas it is im- portant that the long-term productivity of the land be restored. 2. Restoration of Tapsoil. Topsoil, or subsoil better able to support vegetation, must be selectively removed and replaced after regrading has been com- pleted. Even. though soils are often. poorly de- velOped on tribal coal lands, the surface soil is generally the best medium for plant growth for biogeochemical reasons (Curry, 1975). Where soils are highly saline at the surface, selective replace- ment of more suitable topsoil material may improve plant growth. 3. Burial of Toxic Materials. Toxic materials must be treated, buried and compacted or otherwise disposed of in a manner to prevent contamination of ground or surface waters. Toxic materials that would most likely occur on tribal coal lands would be over- burden with a high sodium absorption ratio, which is detrimental to plant growth (Sandoval and Gould, 1978), or possibly toxic levels of some micronu- trients such as selenium, boron and molybdenum (Bauer, Berg and Gould, 1978). 4. Protection of the Hydrologic Balance. Mining and reclamation must be conducted in such a way as to minimize disturbance of the prevailing hydrologic balance including the quality and quantity of sur- face and groundwater. In the West where surface and groundwater are scarce resources, this standard, which necessitates careful monitoring and evaluation of surface and groundwater, before, during and after mining is completed, is extremely important. 5. Alluvial Valley Floors. The Act requires that the essential hydrologic. functions of .alluvial valley floors in’ the West be preserved throughout the mining and reclamation process. This standard is particularly important for tribal coal lands in the Northern Plains. 5] See Appendix C for a more complete tabular listing of the per- formance standards. 3 - 19 6. Revegetation. A diverse, effective and permanent vegetation cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession must be established in all lands affected by mining. As discussed in the following section, this performance standard may be more difficult to achieve in the West. The coal operator assumes responsibility and liability for vegetation for ten years after the last year of augmented seeding, fertilizing, ir- rigation or other work. However, as pointed out by the Mining Task Force of the National Coal Policy Project, this period of time may not be sufficient to emcompass a complete drought cycle in parts of the West (Murray 1978, p. 124). 7. Prime Farmlands. Prime farmlands must be restored to an equal or higher productivity than existed before mining. The only tribal coal lands in the West that are likely to have significant areas of land that would qualify as prime farmland under the Act are the reservations in North and South Dakota and northern Montana where dryland wheat farming is practiced. 8. Fish and Wildlife Protection. Disturbances and adverse impacts of mining and reclamation operations on fish, wildlife and related environmental values must be minimized and operations are to achieve enhancement of such resources where it is. prac- ticable. This provision will be especially .im- portant for tribal coal lands that are habitat for big game species such as deer, antelope and elk. The Jicarilla Apache Reservation in New Mexico, for example, contains deer winter ranges and preferred elk range (Bureau of Land Management, 1979) and parts of the Crow Reservation include critical winter range for antelope and winter range for mule deer (U.S. Geological Survey and Montana Department of State Lands, 1979). RECLAMATION POTENTIAL OF TRIBAL COAL LANDS IN THE WEST The National Academy of Sciences (1974) has summarized the special ecological problems of western coal lands, which apply also to tribal coal lands in the West: 3-20 Droughts are common and annual precipitation is more Often below the average than above it. When pre- cipitation does occur, it may come as high in- tensity, short duration atoms or as snowfall when plants are dormant. Extreme fluctuations in both annual and seasonal temperatures are to be expected. Daytime soil temperature may reach levels that will dessicate seedling plants. Only hardy organisms that tolerate temperature extremes can survive the summer heat and the winter cold. Wind, unimpeded by dense vegetation, drives sand and soil particles into tender plants and dries the soil. Soil is poorly developed in most arid sites. Rock is slow to weather. Little organic material is provided by decay of sparse vegetation and the breakdown of plants to humus is retarded by low moisture regimes and low temperatures. The result is a loose, undifferentiated soil profile with poor capacity for holding mositure. Only the hardiest plants survive, and consequently, the soil surface is poorly protected. (p.11) Extensive mining and systematic attempts to reclaim mined land in the West have occurred only in the last seven or eight years. In the Northern Plains reclamation practices have successfully demonstrated that revegetation, usually involving fertilization and intensive man- agement, can provide short term stability (three to five years) against wind and water erosion, but in terms of the long-term success of re- clamation, current practices are still in an experimental stage (Murray 1978). This is also true in the Rocky Mountain Coal Region where greater aridity further increases difficulties in reclamation. In this region more intensive water management practices such as irrigation and/or water harvesting are needed to establish vegetation (Packer and Aldon, 1978; Rise and Day, 1978). Proper post-mining management of reclaimed land is also essential because grazing by livestock can destroy reclama- tion efforts in a short time (Aldon and Springfield, 1977). The potential for reclaiming surface-mined land in the West is highly site specific and mining and reclamation practices at a specific 3-21 location will have to be developed based on a number of factors, includ- ing: Adequate evaluation of the detailed ecological and physical conditions at the site. Careful planning for the land use that is chosen for the site after mining is completed. 2.. ..... . _ Availability and apprOpriate selection of technology and reclamation techniques to deal with potential environmental problems at the site. Skillful application of the required technology and practices. Careful site-specific premine environmental assessments and de- tailed planning of mining operations, as required by the Surface Mining Control and Reclamation Act of 1977, combined with continued research, should be able to overcome the difficulties inherent in reclaiming mined land in the West. However, it may be a number of years before estab- lishment of a viable, progressive, self-regenerating ecosystem on re- claimed land, as required by the Act, can be considered proven. A general overview of some environmental conditions on Indian coal lands which are relevant to the reclamation and revegetation of surface mined lands is presented in the map series which follows. (Figures 3-5 through 3-13). Reservation borders are approximate and in some cases are schematically drawn to improve clarity. 3 - 22 CERT-OSM Indian Lands Study 100° ff“ \ Rocky I \ Boys ‘23 D U . Fort Fort Peck I 0 Q}. . Fort Berthol | f, l (x I “‘X anding 79 Northern " ““"“' ” . # heyenne I Cheyenne I - I .Rgver / I . / I 3 ) / I ,/ / I / / I / I CL l I [I f /20 _L—————-_— ______ \ x j "b L:una Acoma Q0 ® Albers Equal Area Projection TOTAL INCHES CENTIMETERS 325.1 243.8 203.2 162.6 121.9 SCALE l ; 10,000,000 tnw If‘nfim I I0 I00 2 Mean Annual Precipitation on Indian Reservations Containing Coal Resources Fig. 3-5 Ari ni- vdin maimmorm I map. If Ih; rm Ind" I‘m IMO chr‘ \Ajmnn 5m CERT-OSM Indian Lands Study MEAN SOLAR RADIATION ///////>$(/ Based on mean daily readings LANGELYS' ’lncoming radiation in langleys; i.e.. gram calories per square centimeter k Albers Equal Area Projection ' SCALE 1:10,(X)0,000 “8' 3-6 Source: o Adapted from Environmental Data Service, Environmental Science Services r— I00 zoo M 4m llLl‘ . _ v , . I m m m m m m ,fi; AdminIstratIon based upon data for varying penods up to 46 years in length, ending in 1962 Indian Lands Study Reservations: Annual Solar Radiation CERT-OSM Indian Lands Study INCHES CENTIMETERS 1 44 365.8 128 Albers Equal Area Projection PAN EVAPORATION SCALE 1210000000 ' - FIS- 3 7 Adopted from maps in US. National Atlas 9 g '00 too we we goo 090 we IILDIIHIS Indian Lands Study Reservations: Mean Annual Evaporation CERT-OSM Indian Lands Study »;- I 4. Wm.” , ~ ,5: I UteMtn. % 0 e. v , e , ‘l_ Goa . . .g . - . Southern 0 o UNCONSOLIDATED AQUIFERS Watercourse: alluvial valley traversed by stream lrom which recharge can be induced d and gravel: in intermontane valleys; abandoned or buried alluvial valleys: alluwal terraces; sari tines; oastal Plains and reat Plains; glacial outwash and ice-contact deposits at glaciated regions DY CONSOLIDATED ROCK AQUIFERS Sandstone: includes some unconsolidated sand Carbonate rock: limestone and dolomite; and in Texas and Oklahoma, some gypsum -, a I '0 o Sandstone and carbonate rocks WITHDRAWALS FROM WELLS Volcanic rocks, chiefly basalt DDIDD ’ % a§ . I Q Represents withdrawal 0' OIADO acre-leet or a I Q 100 million cubic meters annually, equivalent C Il' k I d . , to 72 million gallons a ay rysta ine roc s, igneous an metamorphic _ _ Ruled pattern at any of these colors indicates that the - Represents halt 0' the quantity described tor corresponding aquiier underlies a productive sand an preceding symbol gravel aquifer as explained a ove Albers Equal Area Projection SCALE lil0,0(X),(XX) Fig. 3_9 Compiled by U.S. Geological Survey, I965 0 IN I” m I“ I'll! = D IN 100 100 ‘09 500 .00 ’00 IILOIIIEIS Generalized Ground Water Characteristics of Indian Reservations containing Coal Resources CERT-OSM Indian Lands Study CLASSES OF LAND-SURFACE FORM PLAINS .\1 Flat plains AZ . Smooth plains "'B'I' Irregular pIaIns, mm relIeI a: Irregular pIaIns ‘ A“ TABLELANDS (“Din—r1 ' , . . -, ' Blc,d Tablelands, moderate relief 73431" Tablelands, considerable IEIIEI Tablelands, IIIgII reIIei m Tablelands, very high reIIeI PLAINS WITH HILLS OR MOUNTAINS A,B3ii b Plains wIth hIlls PIaIns WIth high hills Plains with low mountains PIaIns with high mountains OPEN HILLS AND MOUNTAINS Open low hIlls Open hills SCHEME or CLASSIFICATION 0”" “'3” M" M open In mm SLOPE lCapital letter) A More than sowa oI area gently s oping m Open high maunIaIm H SKI-80% oi area gently sloping HILLS AND MOUNTAINS ~ I D Less than 20% oi area gently slopmg Pl- _l H‘Hs LOCAL RELIEF (Numeral) W ngh hills 1 0400 '5'" W Low mountains 2 IOOJOO I'eet HIgh mountains 3 mm Le. _ 4 5004000 leet c zorsowr oi area gently SlopIng / 1%: Mr I W/ OTHER CLASSES More thabny 50% pl area covered sand 5 WOO-3000 teet ”..“, , 6 Over 3000 test ID- 50% at area (revered by standIng wa nSfluls covered anby standing waater PROFILE TVPE (Lower case letter, a More than 75% at gentle slope IS In I0 waril Irregular peaks and b 50- 75% of gentle slope regular cones is In lowland Crests c 50- 75 ”/II ol nsdenfle slope IS on up Escarpments and valley sides d Mo ore than 75% of gentle slope V Isonupl rid Inlheasslisltthreeymol width oflineis dIrectIy proportional to heIwght of feature Albers Equal Area Projection SCALE 1510000000 Adapted from a .1 5,000 000 map of the 48 States prepar red by Edw H. Hammo at UnnerSIton a too 200 m .00 MES WI Isconsm for Assdciation of American Geographers E 0 I00 200 sec m 500 sec 700 KILOHEVERS Landform Characteristics of Indian Reservations containing Coal Resources N030“ v I“ l\§ "I’ “f 3 r? Ira I loping pins ners CLASSES OF LAND-SURFACE FORM PLAINS C“: d Flat plans A} ‘ Smooth plains M B] J Irregular plains. slight reliet 32 J Irregular plains TABLELANDS :-- IIJJ“ Tablelands. moderate reItel I I. 8496 l Tablelands. considerable reliet ..— J Tablelands. high relief Tablelands, very high reliel Plains with hidt mountains OPEN HILLS AND MOUNTAINS (“a ‘1 Open low hills I h. -._ r C3_‘;:}I Open hills Open high hills La; - Open low mountains - Open high mountains Low mountains - High hills - - High mountains OTHER CLASSES "7 " '_,' More than 50% at area , ' covered by sand ' ““‘FT, lo-SO'Io of area covered : by standing water ' ""7“ More than 50% at area I covered by standing water ”‘6". e Irregular peaks and 0 regular cones --W 27,‘ Crests Escarpments and valley sides E In the last three symbols. width of line is directly proportional to helght oi feature above its base CERT-OSM Indian Lands Study 5. l _;.___——-—————--——‘ _- \ / / l/ " // / /////’//// _ /////////////// /////////////// anding Rock ,WW /////////////4 ////////////// ///////////// // ///// // l/ ’ ’ ////// //////// l 11 1 11 414 4 .4 Kickapoo '3 Q. l Potawatomi l ALFISOLS '////// ’l/l/l/ '////// A1-A13 l/l/l/ ARIDISOLS MOLLISOLS 01-06 ENTISOLS m £1414 SPODOSOLS 'o'o . 0.. 0... - asmsors literati: 5‘ 5‘ -H2 "1 MISC. LAND TYPES ULTISOLS x1-x5 u1-u7 Albers Equal Area Projection SCALE 1 110,000,000 Source: Compiled by the Soil Conservation Service, 1967 Inn =,,—. , E 0 mo loo soc too see aoo woo mourns Dominant Soil Types on Indian Reservations containing Coal Resources CERT-OSM Indian Lands Study Albers Equal Area Projection Cheyenne River SCA LE 1110000000 ‘00 uiLzs E 700 KILUMEI’EFS Potential Vegetation of Indian Coal Lands University ()I Kansas Re eyIs dl'IEdllIU I965 based on the author 5 map at a 0scale 04 168,000 psubli he d I964 by American Ceogra aphiclal3 SriCIety \NESTERN \El DIELEAI IORLSTS Sp rut e redar hemlozk Iorest IPtea Yhui Iu Iiaig f: " Ledar heml IrIir Douglas IIr loresl l lIhulJ Tiu uud Dlxu rm?" Silver In Douglas in ltilt'xl ‘ IAiiIe I-Ii. IiiIIrirrI [ rIr hemltrdt Ioretl l (Abrm Itetd 02ml er Iur esl IA;IeI Pirrui PrI-Iriiuiragai Rde dwuodi or eri ISequara, ,Pseudongar I Ila-d (Ir Ioresl IAIIIM/ Lodge pole pine wiaaIpInI» ltiresl lPInuX~ Imga Pine- (y I155 loresl Irina» (Iii: mu i \‘Vetlern ponderosa IUIE‘II IPlnusl l " Dnugl as in loresl IOIPieI/d I ‘2 " Cedar heml nct pIne lorett IIhu/a Tsu aPIn “I“ I Crand lir Duuxla; Iir ltiresl __._,‘ Abiex Pie [T ” I view-in Spluterlir luresl I IFIcea-Abiei, Easmm prrndwrm irirui lPInuSI IrkASSLAM) ,, , , rIrIrIIrIIII piamt AarrinIrrin irrIirrra ~I,,,II <.r rm) ra net-(II erg ass :Irtlllxuu MUUIPIIIIM mm A ,, .rrr, (,rarrra liultalu Russ \Irrt- irwm llt'tIIlr-xuxs rIIrrIrrnr rir \I‘rI POTENTIAL NATURAL VEGETATION FORESTS ‘ I luniprm \pp lIuntper red cedar, in s Srquou wellingloma lglanl XEquoul Pn Douglas III mien L_,__l l___J lPlrru Pmudul V Fwfi’“? g 1 W Arizona pine IOIEH I‘_‘ ‘PInusr Spruu lir Douglas rrr loresl aAbIe Preadoigaru ,r Blnk Hills pine loreil Pinusl ruaa brayilolia iloshua lreel WESTERN SHRUB AND CRASSLAND ‘ Southwestern Spru(e-Iir Iomi J Plfed-Ablt” ' , I SHRUB Tl W; Iml’;y§f;f’;j°°d'"d [ as an... "In...“ i....i,.b..n. ciu aalp ral IAdenm lama Arrlnslanhylos Ceanorhusl LRASSLAND ‘0 Fe am e mtg lieslu ura Danlhomal Calilolma Iieppe ISIIDJI BROADI EAF tORESTS _7 Oregon oakwoods ‘1 I Que/(us! , 23 J Mquurie basques L ‘P/risopltl . Coastal sagebrush ISalrIa-Eliogonuml nnlal ma o-ganyoak Snub lCeI(O(arpL/s Que r Iii II Cr mi manin ugebruih i ’— rhes SHRUB AND CRASSLAND COMBINATIONS , Sagebrush SDI! ‘2 46 r 99‘ ieArI ISUrpuS- ryprui - II} a Agrapyioni BROADLEAF AND NEEDLELEN Blatkhruxh Iesruerwheatgusi Wh ealgrass-needlegrass shrubsteppe FORESTS lCo/eogynel lFesluCl'AgropyronI IAglopyron-SIIpI»ArI£mrxra) . ""‘““l W“ . MW“ 0' numb“ z Ind 12 Sillbush greaxewoud l u ] Wh eatgrasx blusgrais 5‘ l Caller) three awn shrubslepge rAIrIp/exrsarrobatusl ; W Mgr opy yor n .0? INIla'Ia-Arislrdal Calilornia mixed evergreen Ioresl ‘“ Crzosole bush ”‘2“ Alpine meadows and barren r“ 52 i Crama-Iobosa shrubsleppe eIrni Arbutus Pseudolsu u); r lLarreaI _l IAg/ostIx,(arex.iesrura Foal l souiriouaIHiIaria-Larre ) Calllomta ozkwoodi lQue ,nn Ipe! woodland IQue/(us- IiimperIi I :3 I I I FW mow! IaIn muhly prairIr Creosole bush-bur sage . lLarIea-franserial l . liesluu Mun/mini! Iii u Cumargallela steppe lBouIe/aua-Nilalial I u 'I oiamucbnu prairie lBoutelouarHIlarlal Pala Verde catlus [shrub (Cercidiu um Opun riamriIun belween 17 and It Czniza shrub lLeuou Hanaua an coaumucoaoHaEH omumaua mo Hm>ouod< ----fi-- Amuu< wcammou Hmuoawz aéoH a owemv monoumum Hmumvom cowusuwumaoo .m.: ou:adum no wuovuo o>Hu=uoxo mouuwous maouuaoo ou poohnsm novoo\aoau=u«umcoov acoavsoa< in vmfimavoz Neon MMOHHMNQ :uaoasoon owcmwuo: m.onaue aw vouwuwascm muoaom Humane unouwnaH filo mmDUHm The regulation of mining activities also fits within the general ambit of tribes' powers of self-govern- ment. Tribal regulatory programs which may result from an amendment to SMCRA could supplement this inherent right. Congress has enacted a series of laws, beginning with the Trade and Intercourse acts in the 1700's that prohibit the conveyance (e.g., by lease) of tribal resources without the concurrence of the federal government. The Mineral Leasing Acts passed in the 1920's and 1930's compel the Secretary of the Interior to act as trustee for tribal mineral re- sources. This trust responsibiliat/y has been ex- ercised by both the BIA and GS.— Consequently, potential Indian programs (Tribal or Federal) under SMCRA also must incorporate the approvals of the trustee in all decisions affecting mineral and other resources. Tribe-Specific Factors Each tribe has a unique basis for exercising its governmental authority. These differences produce variations among tribal regulatory activities. For example: ° The land and resources promised in treaties, ex- ecutive orders, and statutes differ from tribe to tribe. The impact of the General Allotment Act of 1887 which, until 1934 fragmented reservation lands for tribal members, also varied among and within re- servations. Thus, in some mine areas a tribe may act as both the owner and a government, but in other areas it may regulate using its governmental powers only. ° A11 tribal regulatory programs will derive their authority from an enabling clause in the organic document (e.g., Constitution or Code) approved by the tribe. Although all of the necessary powers inherently reside in the tribes, the authorities explicitly granted to the governing bodies vary. In some cases, the documents may have to be amended to clarify the grant of authority for such programs. 4] BIA is responsible for the economic, environmental, and other terms of the agreement (e.g., lease); GS is responsible for inspections and enforcing the development stipulations. Tribes may be expected to vary in how regulatory agencies are established, to whom the officials are accountable, and how decisions are reviewed. These organizational decisions may be determined by the powers assigned to each "branch" of government in the enabling documents and/or related resolutions. The formal "checks and balances" among tribal of- ficials will differ from tribe to tribe depending on the form of government instituted in the Constitu- tion or Code. ' The grant of authority to the Secretary of the Interior to review or approve tribal decisions, including ordinances, will differ among the tribal Consitutions and Codes. The following two sections present a summary perspective on the organization and administration of the governments of the coal-owning tribes participating in this study. More detailed individual reports on the governments of the major coal-owning tribes are included in CERT's Tribal Governmental Organization (April 1979). TRIBAL GOVERNMENT ORGANIZATION The evolution of tribal governments began long before the inception of the American political system. Tribes differed widely in their approaches to self-governance. At one end of the spectrum, it is note- worthy that the "Five Nations" of Iroquois adopted a formal Constitution before the Continent was discovered by Columbus. They established such principles as intiative, recall, referendum, equal suffrage, and the accountability of the government to both present and future genera- 5/ tions.- The Plains tribes have been characterized by one specialist as 2] Cohen, Felix. op. cit. p. 128. being "democratic, one-man-one-vote societies" that emphasized "agree- ment by concensus, inhibition against speaking or acting for another, and a justice system that [made] the well-being of the group more impor- 'L6-/ On the other tant than retribution against the erring individual. hand, many of the southwestern tribal organizations are based on the- ocratic customs, rituals and oral traditions, with key decisions ren- dered by religious elders of the tribecZ/ Since the time that they negotiated treaties with the U.S., tribal governments have changed in response to changing circumstances. For example, many tribal systems were altered when they were moved to reser- vations that could not support their way of life. In some cases, the reservations were shared by more than one tribe, thus forcing a merger of different traditions. The Allotment Act and the Homesteading Acts weakened some tribal governments by reducing their land and resource base; by replacing the Indian concept of community property with that of individual ownership, and by increasing the population of non-Indian residents on the reservation. Similarly, the Indian Reorganization Act spurred the adoption of Constitutions and By-Laws based on American models of government. Consequently, present-day tribal governments reflect each tribe's unique approach to accomodate these forces within their traditional framework. Q] McNickle, D'Arcy. "Tribal Government and the Indian Reorganization Act: Government by Consent." in Tribal Constitutions: Their Past - Their Future, ed. by James J. Lopach, Margery H. Brown, KathTeen Jackson. Missoula: University of Montana Press, August 1978, p. 11. Z] Sekaquaptewa, Abbott. "What is Good Tribal Government?" in Tribal Constitutions: Their Past - Future, ed. by James J. Lopach, Margery H. Brown, Kathleen Jackson. Missoula: University of Montana Press, August 1978, p. 36. 4-10 The following materials summarize certain key aspects of the cur- rent organizational structure of the twenty-five tribal governments participating in this study. (See Table 4-1). The discussion includes background information on the following characteristics: (1) the es- tablishment of reservations; (2) the formal basis of the government (e.g., Constitutions or similar "organic" documents); (3) the authori- ties that may be exercised by the government; and (4) the structure of the government (e.g., governing bodies and officials). The following discussion should be viewed with two caveats. First, few generalizations can be made with accuracy about "tribal government organizations." Each one is unique, and should be analyzed on an in- dividual basis (See the full report on Tribal Governmental Organizations for more complete profiles). And second, these materials should not be construed as a legal interpretation of tribal government powers -or procedures. Such analysis can only be done on a tribe-by-tribe basis by qualified attorneys. Reservation Establishment One precondition to self-government is a geographic base to support the livelihood ‘of the peOple. The principles of Indian territorial rights date back to the original treaties between tribes and the colon- ial governments. Since that time, the land and resources reserved for tribes have been defined and modified by a series of treaty revisions, executive orders, statutes, and acquisitions. Early treaties recognized Indian claims to the territory of the Continent. Declarations regarding, "Indian. Country" respected tribal sovereignty within those areas. However, after the colonial wars ended, the American sentiment was that the Indians would be absorbed into the general pOpulation. 4 - 11 .mmmu< uwsua cmavcH.vcm mcowum>nomom unavaH oumum van Hmuovom mHucon> .mmHsfixoz mwawumm pom .ucoaoum ohm>mz .mHHw .onomd< cash new cash cow mumfimmq .masnoucoz compoww .hmBoQ .cowuou xsoam Hm>owcmm .oHHaHmcuom .maucoam> mausoam> c somxomn , ououo asoum Hm>ovcmm .mnwuu< cam mHHonmmH ssoum ohm>mz .ocacoooo cmvfiuonm .mHmficmn .uHo>omoom .hoHHm> maaaaacm .uaamam Haas .ammuoao :omnoau .mozon .msqxuwm muomcom .uoHomHu vamuo .oawoaomsn .smuswb noouoz .Hamuuasoz .oauaoxoz .cooquz .sasa manuounoz .muwfionou< .mumHmma vsnomom .auom mam cosh new mochxoz .cmoh sum oaaaoooo .ohm>oz .onqu< unannous .oaoumSOHHow .auom mam Nunsoo oofixoz 3oz waHBOA3 odouwu< amp: oowxmz zmz ovmuoHoo muoxmn zusom muoxmn nuuoz oowxmz 3oz coaxoz 3oz mmmcmx oowxoz 3oz mmmamx coaxoz 3oz ammanuaz mmmcmx odouwu< manucoz madame: madame: muoxmn nusom mcmucoz can: muoxma nuuoz ovmuoHou madame: any: oonoz smz odouwud menace: «Baum oHnosm chm po>am vows onomd< uuom awmucaoz mu: zoom wcaeamum mcswmq mo oHnmsm esou< wo oanmsm HBOumaouom ouonomoz oommxoax mHHHumuaw mHHonmmH maoH «mom xoom uuom mocxaom uuom mom xxoom xsoam uo>fim oncomono uomwxomfim amuse a sauna: vaonuuom uuom up: cuosuoom ocaohono :uonuuoz ohm>mz Bouo oamz coaun>uomom VQDHm mmy zH UZHH mono omnotm3oaawnv xaowm uoowaqu manage smsommma “was: mu: mumxfiu< .mwwmvam .cmncmz mu: ouommu a onumsoz occoaonu cuosuuoz ohm>mz souo monaue wcasaolamou nommm 4 - 12 By the late 1700's the federal government was confronted by con- flicts between the develOpment of the western frontier and the interest in maintaining peaceful relations with the tribes. One initial response was to regulate trade between non-Indians and the tribes. A series of "Trade and Intercourse" laws were enacted to maintain order by requiring federal licensing and approval of any transactions involving Indian lands or resources. Importantly, the Act of 1796 contained the first statutory reference to Indian Country and the government's commitment to protect tribal rights under the treaties. Within the next two decades, another approach toward Indian lands emerged: the "removal" of Indians from the eastern states to either small reservations in the east or to "Indian Territory" in the western frontier. This policy resulted from two divergent thoughts: a Jack- sonian demand for tribal lands, and a Jeffersonian sentiment that tribes would fare better if isolated from the non—Indian community. Tribes were transported from east to the midwest; some midwestern tribes were transported to the Northern Rockies and the Pacific Northwest. Many tribes were "consolidated" during this process, despite their divergent cultures and often intense opposition to being merged. By the 1850's, the expanse of the designated Indian Territory was being carved into individual states. It was during this period that reservations first were established. The precedent set in California of using treaties for establishing reservations continued until 1871, when Congress halted all new treaty-making with the tribes. Executive orders, statutes and other federal authorizations were used instead. For this reason, many of the present-day reservations derive from a series and combination of agreements and federal actions. Table 4-2 4-13 indicates the manner in which the reservations of the twenty-five tribes were established. Tribal reservations underwent further modification in response to federal assimilationist policies in the 1880's. The enactment of the "Dawes Bill" -- the General Allotment Act - in 1887 Opened reservation lands for land grants to tribal members. It resulted in the fragmenta- tion of many reservations until the passage of the Indian Reorganization Act (the "Wheeler-Howard Act") in 1934. Between 1887 and 1934, 90 million acres of tribal lands were transferred into individual owner- ship:-8-/ Table 4-2 also indicates whether any of the acreage within the exterior boundaries of the twenty-five reservations is allotted. The IRA reflected a dramatic shift in the federal policy toward tribes. It reasserted the principles of tribal sovereignty and the sanctity of the treaties. Among other things, the act put an end to any further allotments of reservation lands. It also authorized the Sec- retary of the Interior to acquire lands on the behalf of tribes that chose to organize under the IRA. Because of these two provisions, Indian lands actually increased by more than four million acres.-9-/ Formal Basis For The Exercise Of Tribal Authority The powers exercised by present day tribal governments derive from a fusion of cultural traditions and adaptations to the American poli- tical system. Traditional systems of tribal government came under _8_/ Getches, David 11., Daniel M. Rosenfelt and Charles F. Wilkenson. Cases and Materials on Federal Indian Law (Draft) Volume I. August, 1977, p. 119. 2/ McNickle, D'Arcy, Op. cit. p. 8. 4-14 .mcowumpomo arcane .muwmwo mou< mwaHHHHm .wuwmmm< :mwvcH mo smousm .oofimwo muammm .mowwmo mou< mnvumavona< .muwmmm< :mfiucH mo smouam .Houmm .xofiuumo .quatqoaH .HH w H woe=Ho> .mmaumoue w m3mAIAWHHmww< cmchH ..h mmaumnu .umamamz "mousom mama .m noun: mow .mme .H zmz .mme .0H sumo: ououmum .uovuo o>au=ooxm .mummpy “com mo» nwwa .qm max novuo o>ausooxm uo>Hm new: 02 mmwfi .m mash .Hmma mmmuwcoo mo uu< .umvuo o>Husooxm Amnomd< cfimucsoz ouwczvonomm< uuom mow wwwa .mH mumssmh .mmwa .NH unmounmm novuo o>Hu=ooxm cfimucsoz mu: mm» mme .m mumscmh .NwwH .NH Honouoo mmouwcoo mo uo< .mofiumoufi xuom wawucmum mm» mesa .mH sonam>oz .mmma .oN Hausa .scwumm scan ”madmao oum>wum mo unsoo an beauww Iaoo .ucmuw mama :chmnm mcswmq mo oHnmsm AAmH .aH umnsm>oz acmumm news , mm» mmwfi .NN nonsmoma .ome .om nonaoumom .mmmumsou mo uo< .mumoue maoo< mo cannon Kama .AN sumaupmm mow Homa .nH nonao>oz .oqu .NN mfioh mmaunouw Hangmamuom oHuHMCm oz ekwa .N anagrams .mawa .am an: Basso m>au=umxm anomaa oumamummz mow «mma .wH hm: humouw ooamxofix oz News .HH samsusmm .ome .HN Banana .oama ma sans .eama .mm norm: use“: m>Hu=umxm savage maaaumoas mow mmwa .N um=m=< .eomH .mH umnouuo spawns .ameuo m>auaumxm mammamma mow mwwa .mH unsws< novuo o>Hunomxm oon no» Nwwa .oH monsoooo nomuo o>Huaooxm “do: no» wwma .H mm: .owwH nonsense nomuo o>Husomxm xuom when was mama .MH Haua< .mkwa .na sane umeuo m>au=omxm amcxamm “you 02 oHaH .n nonaoudmm “mono o>Huoomxonouoim3mmaHsuv mo: zxuox mow mama .N noun: mwouwcoo mo uu< xsoam um>Hm ossoxono mow mmwa .NH nonouoo mmmumcou mo uo< .mumouH umowxomam mm» Howa .Hm nonouuo novuo m>wuoooxm amuse a sauna: Hawa .m nous: mm» mAwH .NN umnam>oz .woma .N scum: umeuo m>au=omxm .mummuy mu: aumnuaom no» emma .om nonam>oz novuo o>Hu=ooxm ocaomonu cumsuuoz mow owma .o mumssmh .muwa .om nonouoo .mowH umpuo o>Hu=ooxm .mumoue ohm>mz mm» mama .AN sass .Hmma .AH umpamuamm ammuwaoo so due .sumwue eaonuumm duos mo» mmwfi .om nonouoo .moma .N has novuo o>wurooxm .aumoua sous wound wouuoHH< o>wm mmumn Nox vmzmwanmumm mm: sowum>uomom couum>ummom onu moon soaum>uomom may 30: mona<>mmmmm so azmzmmHamoz aema .HN sensuous chad .aa sameness moms .oH sussswn knee .oN sussunos acme .ma sausages «maa .0 he: was” .e uoaam>oz ones .aa “waamuan nmaa .mH panama»: ems” .mN sass mama .AN sensuous nmma .mH Masseuse .HH a H muabuo> mow oz new no» 02 oz new new no» new no» new no» wow 02 so» now now our o~an~ao>w no: «use consensus .uoauouaH use mo.usosuunmun .muwnwm< onwvau mo seamen .mudoaauo>oo Hwnaua no moamwo .aowumowasaaoo anaconda soausuwumaou « aoausuauuaoo flOHuauHumdou sowusufiumaou nouuwus uoz soausuauasoo nouusuaumcou wowusuwumdoo sowusuaumaou nowusuwumsoo sowusuwuocou sowusuaumaou dowHSHHumdoo aoausuwumaoo nowusuaumnoo nowuauaumaoo soausuauusoo aoausuaunsou nmma .aH humadnfi mmafi .H Honam>oz mmma .MN hoaam>oz fl emms .au 0:56 mama .QN wash vo>ouQQ< one: vouuunwuo now now new 02 new 02 ¢mH may nova: coausuwumaoo coausuwumcou coausuuumaoo ueoo assays onm>mz soausuwumaoo nowusuwumsoo «cusses: wawauo>ou Hwaufiwwo NHHmOMHD¢ Hzmzzmm>ou AdeMH mo mHmaa use: ononm< sadness: moan: canvass: mu: zoom wcwvcmum naou< mo canosm msawmq mo canosm “soumamuom owuumum onumm< ouoamumoz oommxowx unused naaaumofiw oHHonmmH nzoa ago: xoom upon mmcxaon uuom Assaulmzommfinov zom axoom x50fim uo>wm manomonu ummmxumsm house a sauna: mu: cumnusom oscmmocu auunuuoz enn>mz vascuuom whom souu onwua — l8 ° The Constitutions and By-Laws may be revoked or amended under the same procedures followed for ratification. The procedures followed by non-IRA tribes remain the discretion of the members of the tribe. However, the Secretary of the Interior has inter- preted the broad trust authority in 25 USC as authorizing the Department of Interior's approval or disapproval of these documents. The powers and structures of the governments that have been defined in these documents are described below. Powers of Tribal Government Constitutions and Codes enumerate those powers of the tribe which may be exercised by their government. All actions of the government must be within the scape of a grant of authority from the membership. Importantly, the process of defining governmental powers in no way limits the sc0pe of authorities inherent in the tribes' rights of self- government. Most of the documents set forth three classes of authority: the enumerated powers of the government, future powers of the govern- ment, and reserved powers. First, the‘Constitutions and Codes differ in their manner of ex- pressing enumerated powers. Some use 3.11mited number of very broad, all encompassing statements while others spell-out the powers in very specific terms. An interpretation of the authorities conveyed by each item is a very sensitive and legal matter. In light of this constraint, generalizations about the scope of existing tribal regulatory authori- ties could be misleading if not erroneous. Therefore, Table 4-4 simply illustrates two different approaches in expressing powers: The very broad grants of authority adopted by the Crow Tribe and the more lengthy enumeration of powers adopted by the White Mountain Apache Tribe. 4 - 19 man no connonoomonmon Howon m on com: on nooono woo moonnonwnmooo Honnna can Bonn nonconnmno one moamamxo omoza nooaono>ou Honooom no ononm no assume no Hononuuo mounnonnom wasp mom no nonnonoH man no znmnonoom osn no oanH onn mo ononaoa mp vonowonov on has on mnoaom nocnnom soon mononoxol momomnom onaooooo n0w mews oumnowon ooo mnohoHdao woo mnmnonnmo Honnne .monmon .moonnnsaou onmonononom nanddol mannfi man no mnonaoa no wonnmnmooo moonnonoommo mnmncono> no wonnn>nnom man monono>ow monomonvno nooool nooaoonomoo awn com munooo Hmnnne monono>ow vow wonsmnnnmnmo wooomonono nooool conno>nomon ozn unanns mwoonmon wonoo mnonaosiooo woo mnonaoa com: moon omooonn woo moxon noonnoo woo >>onl momoofi oomwnom no monnoonw can wonno>oo mooomonono nooool munnooom mo oaooon ononom no ononnono ownmmo no omooan vow monsom mom Bonn moooa aonnonl onnnH man no momnndnouoo pom mnndmmo onaooooo Ham owmooal annodonm Honnnu no connnmodmno woo mom: can ononowonl onnnH man no mnnwnn nouns pom moonoomon Hononmo .ownHoHHS man m>nomonm one noononal muommo HmnnnH nonno no spoon on mumononon moooa Hmnnnh mo oooonneoooo no swoon .oonnnmodwnv .oHMm can ono>l Homoooo Hmwon headset nonndnnomoo mno>o no mucoaoonwm woo mnomnooo anownod one once .ononnowool onnnH can no onmwaoa man onooooo nonn mnonnoa HHo on now won nanny osn noomonmonl o WGOHH—duflflmfloo HWDfiHH. "QUHSOW .mmnnnnonusm nmannn “0002* manna 3on0 man no Manson oo onoosono>ow HoooH w Honooom .ononm nuns sonanmnon noncomml mnonnma Hononnwo Ham on wannH sono man no oono> can no pool mo>nnoonno mun oNHHoon one nonnonoao o>nnoowno w.HHoooou onn o>on£on on anmwmoooo on hos no onoaom zoom o>mn mom nonnonnnmoou mnn noon: ooownmmo wonnoo man snownom Hanna: . omnnmnonoo wmoonoon no mmoonmon mom on owowoo vow onononna .ononomo .aBo .nmnnnmnmol onooooonm no monon oao mun nonnnonmml sonnm>nowon onn no mmoonmnn wonoo manna 3on0 can no mnonaoalooo some moon omooona vow moxon noonnoo moo .mmommm .m>onl manna osomd< ononoooz wanna "hunnonno< no nomnu connonoa manna 3on0 unannosno< no noonu ooonm \M.Hzmzzmm>ou Ann=ooxm om mnoono anooooo Honocou spaces .mnonaoa connm>nomonlwwo 50nm mnocEmE N pom nonnuwno some Bonn oneness N no wonnmnmooo .Hnooooo o>nuoooxm om mnoono Anoooou Hmcnna oons .monnnH no>nm cons no .osoo< omnmninm ono> nonsmom nonuumne an Bonnumne an cannon no msoumoo ono> nonodom ono> nonoaom ono> nonodoa ownmnlum ono> anoQOQ onnnH on nooEHHonoo moonooo omeHH> comm ouncumne an ono> anDQOQ mums» a sonnomne an ono> nonsmom won: no coon coco sonn mnonaoa N ono> ownmnlno Bonuumne an ono> ownmnluo manna on nooeHHonoo conuuonom no noose: w an N - ma m on unannoQEoE unnuoo conanoQOQ omeHn> so comma on Nn ono> ownmnlum w an o N ~N 0H ansmnoAEoE onnnco mnopaoz no nonaoz mo onnoom .Ono>mz co mann mnnu no oncmnno>o no: one ounce nnucsoo nmpnnn Hnucsoo Hanson nnocsou nmpnun snucsou amnncn anucsou Hansen nnocsou nmsnun anocsoo nmsnnn neocsoo nmpnnn anucaoo ampnnn nnocsou Hansen «seaflooooo Honoooo anooooo Hmcnna onmom o>nnsuoxm Hmnnne anooooo Nqu58800 amcxnom .nm monunEEOU wmoonmsm anuoooo Hmcnna anuczoo womanmsm HmnnnH mouunseOu mmocnwom nonnna anooooo nonnnn anoosoo Hmnnne anocooo wmocnwzm Hmnnnw «annooooo HonnnH ncoN ococd< snouoooz onnsz on: cnmnaso: on: xsonm xoom monocwnm doomed no Oncoom nEonosonom onnnnnm oncom< ononoomoz oomoxonx onomm< mannnmonw oHHocmmH msoH neon xuom .um mmoxaom .nm monolosommnnuoonolmBoadnco noonm no>nm osooxonu noonxomnm manna a canon: on: onocusom mcomxosu onoznnoz onoznnom unom zonu Noon monono>oo mmmHmH OZHHoo mle mqm<fi .u manun \« ><><><><><>< ><><><><><><><><>< ><>< ><><><>d moofinonnn mcou Hmnnnfi "monoom noono a keg mommoonmom swoon: \emnnpmnwm x x N x x x x n x x n x x .x x x x x x x x x x x x x x x x x N x x x x x N x mOUHmHO waGMQHvHO Hflmfifluwnrow “~0me owned: \emnnpmumm wnom quzmm>ou Hwy no meHDD mo mmqmznm oooomono x noowxoonm x nmnso a emusn: M on: ononnoom x oncomonu ononnnoz x oaonnnom unom x sonu Amonmooqv wnozom Hm can: no oaoo< no Ongoom can so dawn swan no o~no~no>o no: Ono onmm \M ono> nonsmom nnuasou an eauomnm ono> nonodom sonmso onnosm Amnonaoa ooHHonooV anooooo Honocou ono> nonsmom nnuasoo nmpnun an emuumnn ono> nonsmom nnoasoo nuanun an vasomnn Hnocooo Honooou an omnoon ono> nonsmom ono> nanomom anooooo Bonn omnooHu ono> nousqom ono> nononom Hnossou Hansen n; ewuumnn oonnaasou mooonoom Honnna an consonm ono> nononom ono> nonsmom Ono> nonsmom ono> nonsmom Hauoooo Honnna ma oonoon sonnuoHom no.nooooz .l noono>oo unannono unannono noono>ou oomnomnnono nooonmonm ooannoso noovnmonm wonno Humane unannoau oosnnmnu unannono ncoonmonm ooannmco onannonu ooannnnu amannmeo ooanono nooonmonm oosnnmsu amannmeo oosnnono noonwuo o>un=oonm mmmHma UZHHHabomxm hie NAAnm codename poemxomnm henna a swoon: mu: onocnoom ooooxono ononunoz Onm>mz enoznnmm anon zonu I.oanH \« moonnonnnmoou HmanH “monoom .monnnnosnom omosn mo connmnoomonmon Hmon m on com: on nooomo com moonnonnnmooo HmnnnH man aonw penumnumno one mundamxo owOnH ”onoza Hnooooo can an oonoooo mooooonono no ucoaoononoo man wonnsmco .OOHHOQ Hmnnna can noonno Hanson owommoa no snow man wonaoHHow mxmo o>nw nooonmonm can On omnoomonm on on I o>nnoomno moaooon an onowon anoooou HmnnnH onn no ooomcnono no nooanomoo moo no>o nosom Ono> man! mnooaoonwo woo mowmoa .mnomnnooo and no anoooou Hmnnny onn an Ho>ondam wonzonnow oanH can now noonwmo wonnoonnoou mm o>nom Hanan: oonmmneaoo no onmoc .oonnnaaoo soon now no nomads oHOHNNOIxm mo o>nom Hanan nooonmonm man one unmannmaoo o>nnoooxm osn mo mmoonmon can an nonnsvon moonmwnaaoo .moounnaaoo .wvnmon cmnnnmnwo hoe nooonmmnm can .Hnooooo Hmnnny ocn no Hm>onado man on nounnoml nooannmdoo o>nnoooxm ocn no moomonao mom mnmnonmwo o>nnooHOIooc Ham muonondml nooonmonm oon> can no monsoon man on ono> onn o no ommo ozu on mnoo mono>l monunasoo o>nn=ooxm one Hnoosoo Honnna no noonwwo wononmonn mo mo>noml onn o no some ocn on xnoo mouo>| omnunano can an an: on conmonoo mufiwocnsm how momnonoxol unannono no monnoo Ham manonnoml oonnnsaoo mmOOHwom can no mwonnooa Ham no>o moonmonml manna osoom< unannoonh "Ono“ woonnm «MMUHhmO m>HHDUmxm may sonny monolmsommnnu uoHom ouunflnq m0 mMHHDa mo mmqmznm ocnz w .mEoo< mo Onnmom .Onm>mz can no menu oncn no unconnw>o nos one muons oz mmw « oz oz oz mow oz mmw mm» « oz oz mm» « oz wmw mm» a may mm% mm% « oz mm» mm» mmw mmw oz mm» mmw mmw mm% mm» mmw mmw mmw mmw mm» mmw mmw mmw oz oz Noncomm< no nnooo < Noooo no connonnnwooo oonmono wanna one no: oH ounnnonns< mnnooo on< mmnou mo monHDHHHmzou mmH Mm QMNHmomyz< ZMHmwm Anz oozozono nmmnnumnm zmnoo a canon: mu: unoppoom ocoozono onosunoz onosunmm unom Bono mannn Some examples of the internal checks are as follows: Table 4-10 highlights some of the internal controls instituted by the participating tribes. The checks imposed on the agencies within the tribal government are described in the next section on the adminis- "Balance of powers" among tribal Officials: The executive officer (e.g., chairman) may have veto power over ordinances passed by the tribal council; ‘ The council may override vetos by the chairman; The implementation of ordinances may be subject to review and appeals by the tribal courts; The tribal members may reserve certain powers to themselves (e.g., requiring a referendum on certain matters), or officials of the tribe may' be removed from office by directive of the governing body. Accountability to members of the the tribe: The constitution or code may expressly require that meetings be Open, that members be allowed to participate and that records be kept of the proceedings; Certain decisions may require popular refer- enda; Members may initiate actions through referenda; on issues, or Members may recall or remove tribal Officials. tration of tribal programs. External checks derive largely from the Tribal-Federal relationship discussed earlier. actions are as follows: Review by the trustee, the Secretary of the Inter- ior: The Secretary approves or disapproves Constitu- tions or Codes of both IRA and non-IRA tribes; 4 - 29 Examples of the role of these limitations on tribal moonuounuoooo nonnnw “Oonoom Onnna nO>HN wonz a .OBou< no OHnOom .ofio>mz .nmo: Onn now OBHn mnnn no OHAOHHO>O no: Ono: \M N N ncoN Onuoz< :Hmuoooz Onnzz On: enmnoooz On: noonm xooN wdnoomnm doomed mo oHnoom HBOnoamnom Onnnmnm N N Onomnd onOHmomOz oommxonz N N mannnmon: muon OHHOAOOH xaom .nm ascends .un OOnohOSOmmnnu noonm nO>nN OocOmono nOwaooH: NNN NNN NNN M?“ NNNNNNNNNNX NNNxNNNNNXN NNNNNNNNNNNN ¢‘* GI amuse a Banana N On: anOcnoom OBOONOno onOnnnoz onosnnOm nnom son: NNNNN NNNN >4><>< X «n N N mnoonmmo BoooOnOMON O>nnmnnnoH Oonmwo OnO> no connOwawwq nO>o I.O:nnH mo HHOOOm O>HnOHmnwOa O>nnonHwOA Bonn Hn>OBON OonnnO>o anoooou onO> O>nno0Oxm a mNmmzmz OH afihmmmmm mmm3om Noon quzmmbou ZHEHHz mxummu mmuz mOmwOA OOOOOA mommog mOOOOA mOnonoO> noNOh eon OOOOOA OOOOOA mOOOOA OOOOO: OOnonoO> none: can mOmOOA OOmoOA OOOoOA conno Bunsen: non nonon .OOOOOA wOmOOg Anonnono Ionmcoo nOvoo HOOO now 0H59fl0> nanomv momoog mnoOBOOmw< no manom .mNmH .mnmhnond monnom no Oonnuo .mOannH oonoomON hwnOom no anooooo “oonoom N Beacon: OOU a Hwo mmmHMH uZHHnN oonz On: Onmnoooz On: ooowmq no OnnOom OHHOQmOH onoma< mannnmon: neon xoom nnom noonm nO>nz Oooonno nmmnxomnm moannn ennumnne nmeno menso e :mnan: On: onOnnsow Onn>mz onoznnO: nnom sono OOnnnHJMWNBSOIHmoo nohn: 4 - 34 Others have conducted studies to support the formulation or enforcement of codes, or litigation. Activities being undertaken by the tribes inc- lude: Minerals inventories: Data (n1 the geology, hydro- logy and chemical properties of tribally-owned minerals are essential to all management activities. The BIA is conducting mineral inventories of reser- vations. Several tribes are participating actively in this program. Some tribes, such as the Navajo and the Northern Cheyenne, have undertaken indepen- dent geologic assessments of their resource develop- ment potential. Air quality: The implementation of the Clean Air Act has given tribes an opportunity to conduct baseline monitoring and modeling of the ambient air quality (n1 the reservation. The Northern Cheyenne Tribe did extensive work in this area in order to prepare their petition to EPA for a designation as a Class I Area. Similarly, monitoring of the electric generating plants on the Navajo Reservation has created baseline data for that region. Water quality: The implementation of the Federal Water Pollution Control Act also has provided tribes with an Opportunity to establish a data base on water quality. Most of the tribes have received funds under’ the. Environmental. Protection..Agency's (EPA) "208" program for area-wide planning. In some cases EPA was able to work directly with the tribes, and in others the tribes subcontracted with State or regional governments. Economic Impacts: All of the tribes prepare "Over- all Economic DevelOpment Plans" (OEDP) under the sponsorship of the Economic DevelOpment Admin- istration (EDA). These monies have been used to assess the role Of energy development on the reser- vation economy. Other funds have been used to develop socio-economic profiles of the tribes and to conduct surveys of tribal attitudes toward develop- ment. Land-Use: Comprehensive land-use and zoning plans have been prepared by many tribes. These plans, Often under funding from the Department of Housing and Urban Development (HUD), focus on the location of buildings and the management of non—mineral resources cut the reservation. The planning Office of the Three Affiliated Tribes of the Fort Berthold Reservation is preparing a comprehensive plan that will be used as a basis for' mining reclamation performance standards. 4 - 35 a ‘ .059 Resolutions/Ordinances: Since the early 1970's, the tribes have established policies and rules which govern the manner of development on the reservation. Actions have been taken in the following areas: ' Resolutions stating general policies on development agreements: -- The Three Affiliated Tribes of the Fort Bert- hold Reservation adopted a policy resolution favoring energy projects developed and/or owned by the Tribe, in lieu of the standard lease arrangements. -- The Jicarilla Apache Tribe has resolved to discontinue the use of leases in favor of alternative forms of agreements. Taxation: -- In 1978, the Navajo Tribal Council adopted two taxation resolutions that affect the energy development on the reservation. The first is a "possessory interest" tax, which is levied on the value of the lease site and underlying resources. The second was a "business activi- ties" tax, which is assessed on the net dollar value that certain businesses contribute to the output of economic goods and services in the Navajo Nation. -- In 1979, the Crow Tribe passed a resolution establishing a severance tax on coal, at a rate of 252 on the gross price, F.O.B. at the mine site. -- In 1977, the Jicarilla Apache Tribe levied a severance tax on oil and gas produced from leases. -- In 1979, the Three Affiliated Tribes of the Fort Berthold Reservation adopted a resolution expressing their powers to levy a tax on oil and gas. . Environmental Assessments: -- In 1972, the Navajo Tribal Council established a Navajo Environmental Protection Commission (NEPC) and delegated to it the authority to analyze the environmental impacts of develop- ment on the Navajo Nation and to advise the Tribe on environmental stipulations in all leases. 4 - 36 In 1976, the Jicarilla Apache Tribe adopted an ordinance which requires prospective developers to file an environmental assessment of their prOposed project to the tribe. ° Air Quality: ° Land The Northern Cheyenne Tribe successfully peti— tioned for and received a Class I air quality designation under the Clean Air Act. In 1979, the Northern Cheyenne Tribal Council estab- lished the Northern Cheyenne Tribal Environ- mental Protection Commission (EPC) and charged it with the responsibility for issuing regula— tions and administering programs to protect air quality. At the same time, the U.S. Environ- mental Protection Agency awarded the Tribe with a grant under Section 302 Of the Act. This is the first time that EPA classified an Indian tribe as an "air pollution control agency." In 1977, the Navajo Tribal Council passed a resolution that requires a permit for the discharge of sulfur (or its compounds) into the atmosphere from sources within the Navajo Nation. It sets minimum performance standards, and imposes a fee on any emissions exceeding this standard. Water Quality: The Navajo EPC is authorized by Council resolu- tion to issue rules and regulations to protect the quality of Navajo waters; The Northern Cheyenne Tribe's EPC is authorized to issue rules and regulations to protect the quality of their waters. Oil and gas development In 1979, the Three Affiliated Tribes of the Fort Berthold Reservation adOpted an ordinance requiring tribal permits for seismographic exploration for oil and gas. Use Control In 1978, the Crow Tribe adopted a Land Use and Zoning ordinance that requires permits and for all buildings (residential, commercial, indus- trial) and other special classifications of land use. 4 - 37 -- The Southern Ute Tribe has a Land Code which requires tribal members to obtain permits for the use Of tribally-owned lands. ° Other -- Both the Southern Ute Tribe and the Three Affiliated Tribes of Fort Berthold have enacted codes for the regulation of fish and wildlife. The Southern Ute Tribe also implements a Range Code. Development Agreements. The contracts negotiated by tribes and operators form the basis for the economic and environmental terms under which development will take place. Prior to the enactment of P.L. 95-87, the only performance standards for existing mines were those contained in the leases. As a result of dissatisfaction with leases, tribes have sought to strengthen the terms of development agreements by renegotiating existing leases, litigating legally questionable permits and leases, and by negotiating more stringent stipulations in all new agreements. As one example, the Navajo Nation was able to incorporate detailed reclamation standards in renegotiated leases for existing and prOposed coal mining projects. Enforcement. The methods used to enforce the various ordinances and contract terms include a variety of civil and criminal measures. For example, the Navajo sulfur emissions permit system is enforced through a system of noncompliance fees which vary depending on the quantity of the excess emissions. The Navajo EPC has the authority to enforce environmental stipulations in existing leases through a combina- tion of cease-and-desist orders and fines. The Northern Cheyenne Tribal EPC ,is empowered to issue compliance orders, cease-and-desist orders, and fines not exceeding $1,000 per day for each of the violations. The penalities for noncompliance with the Crow Land Use Zoning Code include criminal penalties of up to $500 for each violation in addition to civil actions. 4-38 Institutional Setting of Tribal Regultory Programs There is no single "tribal" model for establishing regulatory programs Ihl the tribal governments. The existing programs differ in scape and complexity. All Of the intitiatives are in embryonic stages and may be changed after gaining experience. Nonetheless, several existing programs demonstrate the attempt by tribes, notably the Navajo and the Northern Cheyenne, to establish quasi-independent commissions within tribal government. The characteristics of tribal regulatory bodies are described for each of the major programs cited above. Navajo taxes. Both the possessory interest tax and the business activities tax are to be administered by the Navajo Tax Commission. On a day-to-day basis, the Commission is accountable to the Tribal Council and the Tribal Chairman. This Commission was created by a Tribal Coun- cil resolution. It is composed of three members who are appointed by the Tribal Chairman to serve three-year terms. Members of the Com- mission may be removed for cause by the Tribal Chairman. However, the administration of the taxes and the decisions rendered by the Commission are reviewable only by the Court of Appeals for the Navajo Nation. Navajo Sulfur Emissions Permit and Fee. The responsibility for implementing this permit fee system is shared by the Navajo Environ- mental Protection Commission (NEPC) and the Navajo Tax Commission. Like the Tax Commission, the NEPC is accountable to the Tribal Council and Chairman on a day-to-day basis. The Commission was also established by Tribal Council resolution. It consists of five members, two of whom must be members of the Navajo Tribal Council. They are appointed by the Tribal Chairman for three—year terms, but may be removed for cause by the Chairman. The NEPC is authorized to hire staff to support its work; 4 - 39 they too ultimately answer to the governing body of the Tribe. Here again, however, the actions and decisions of the Commission on the emissions program are reviewable only by the Navajo Nation's courts. Northern Cheyenne Environmental Protection Commission. The North- ern Cheyenne recently established the EPC to implement the Tribe's pending regulatory activities (e.g., air and water quality). Like the Navajo commissions, the Northern Cheyenne EPC is accountable to the Tribe's governing body. Its powers derive from a Tribal Council re- solution. Two of its three members must be members of the Tribal Coun— cil. The authorized staff answer first to the EPC, but indirectly to the governing body of the Northern Cheyenne. Yet, as in the Navajo case, the independence of EPC decisions is protected by the fact that its decisions are reviewable only by the Court of Appeals of the North- ern Cheyenne Tribe. Crow Land Use Zoning Code. The regulatory body established by the Crow Tribe for this program differs structurally from the examples presented above. This may be attributed to the more flexible standards and procedures that are involved in these land use decisions. The Land Use Zoning Code designates the Tribal Building Official and/or Planning Director as the Administrator for the program. Appeals to the decisions rendered by the Administrator are to be heard by a special "Board of Adjustments." This Board's membership is elected by members of the Crow Tribe. Other Programs. The regulatory programs being implemented by the Southern Ute Tribe (Land Code, Range Code and Wildlife Code) and the Three Affiliated Tribes Of the Fort Berthold Reservation (oil and gas seismic permits and fish and game regulations) share a common approach. 4-40 Only the tribal councils have the authority to approve permits. The regulations do not specify avenues of appeal. Finally, the program staff are integrated into the broad administrative structure of the tribal governments, and thus are accountable to the tribal councils and chairmen on a day—to-day basis. Implementation Issues The initial years of tribal regulation have been propelled by Optimism and by exciting precedents being set for tribes and, in some cases, for the nation. These gains have been made despite a series of difficult obstacles. For example, litigation regarding ordinances and codes may delay the development of the staff that will be needed to administer the programs. The tribal political environment also affects the implementation scheme. However, several tribes have identified other important constraints. Funding. Because the internal funds available to most tribes are very limited, appropriations for regulatory programs often are cut to meet essential services and other urgent needs. As a result, many tribes have had to rely on federal grants and contracts for their pro- grams. Generally, these grants represent short-term, single-focused sources of funding for planning studies. Budget limitations have taken a heavy toll on many tribal enforcement activities. Most state, local and regional regulatory agencies receive funding assistance from the federal government (e.g., EPA). Because the Clean Air Act and other federal pollution laws were silent on the question of implementation on Indian lands, tribes have been held in an awkward state of limbo until agencies could sufficiently analyse their eligibility for similar fin- ancial support. The EPA decision to fund the Northern Cheyenne Tribe as an Air Pollution Control Agency may signal the easing of this barrier. 4-41 Training. Although the tribes have been able to hire skilled staff for positions, it Often has been necessary to recruit beyond the tribal membership. The tribal leaders place a high priority on training their members in the technical skills that will be needed in the years ahead. Overlapping Jurisdiction. One tribe, the Southern Ute, indicated that they had entered into a cooperative agreement with the State of Colorado (Division of Wildlife, Department of Natural Resources) to enforce the Tribe's Wildlife Code over non-Indians hunting and fishing within the reservation boundaries. Apart from this case, there are few COOperative agreements between tribes and other governments in the area of environmental or resource regulation. Most of the COOperative agree- ments between these parties pertain to police or court functions. A special State-Tribal Commission to examine these questions has recently been established by the ‘National Congress of .American. Indians, the National Tribal Chairmen's Association, and the National Conference of State Legislatures. They are sponsoring a two-year study on the po- tential role and structure of cooperative agreements. Their findings may be useful to the development of recommendations regarding the imple- mentation of the Surface Mining Act on Indian lands. 4 - 42 CHAPTER 5 TRIBAL COURT SYSTEMS CHAPTER 5 TRIBAL COURT SYSTEMS Introduction Many of the decisions rendered by a mining regulatory agency are subject to judicial review. Applicants and other parties have the right to appeal agency’ actions involving permits, enforcement, bonds, and other decisions. P.L. 95~87 designates which courts have jurisdiction over the decisions of federal and state agencies. Legislation regarding an Indian lands regulatory program will need to account for the special role of tribal court systems in this process. This Chapter sets forth a brief history of the development of tribal systems of justice, an analysis of the present formulation of reservation courts, and an exploration of some of the more significant issues presently confronting those courts. Information regarding the courts of the coal mining tribes are presented in summary form. A.more detailed discussion of the tribal courts of the coal mining tribes may be found in Tribal Court Systems (report submitted by CERT to OSM, April 30, 1979). HISTORY OF TRIBAL JUDICIAL SYSTEMS Generally, reservation judicial systems in their present form are a composite of traditional tribal institutions and Anglo-American models. This melding of Indian and non-Indian concepts is a product of a series of federal administrative and legislative actions reflecting the ebb and flow of federal Indian policy. Since the mid-1960's, the federal policy of self-determination has fostered impressive development of the reser- vation judiciary. Indeed, today Indian courts are exercising primary jurisdiction in all spheres of activity arising on Indian reservations. O 5 The notion that disputes relating to Indian lands should be re- solved by organs Of the tribe under principles of tribal law is funda- mental to all American Indian tribes. Such tribal systems pre-dated the arrival of European institutions. Typically, tribal judicial authority rested in communal councils which "adjudicated" on the basis of con- sensus and religious principle: Rather than the representative style typical of Western governments, tribal societies were often governed by communal systems of chiefs and elders. Leadership was often earned by performance or acknowledgement, and rested upon consensus and theological grounds for exer- cise. Many different systems existed for resolving disputes and maintaining order. Some tribes had warrior societies which functioned as enforcement mechanisms, other tribes utilized community pressure to enforce norms: scorn is said to have been an extremely effective method of enforcement. Imprisonment was unknown, and restitution, management, and death were the major re- tributive sanctions utilized. (Report of the American Indian Policy Review Commission Task Force Four on Federal, State and Tribal Jurisdiction, 121-22. July 1976). From the outset, the autonomy of each Indian tribe over its affairs and territory was recognized. The United States Supreme Court con- sidered tribes "distinct, independent, political communities". _LWorcester v. Georgig, 31 U.S. (6 IPet.) 515, 559 (1832)]. Congress viewed the treaty process as the appropriate mechanism for concluding territorial arrangements between the United States and tribes. However, in 1871 Congress determined to discontinue the negotiation of Indian treaties (16 Stat. 556). By then, some tribes, such as the Cherokee, Chickasaw, Choctaw, Creek and Seminole (the Five Civilized Tribes), and the Seneca had already adopted European-style institutions, including courts. At the same time, however, traditional systems of tribal justice remained essentially intact for most tribes. During the first three quarters of the 19th century, federal Indian policy subjected tribes to persistent warfare, westward removal and confinement to reservations. Tribal societies suffered greatly and the institutions of tribal government foundered. In the final quarter of the 19th century, "civilization" pressed for the opening of reservations to non-Indians and for the imposition of an external system of law and order. This resulted in a struggle be- tween military and civilian authorities for control over reservation affairs. With powerful support from church and lay "friends of the Indian" —- who believed that the imposition of a system of law and order was essential to "civilizing" the Indian -- the civilian officials prevailed. As a first step, federal Indian agents began delegating law and order authority to selected tribal members through the establishment of Indian police forces. The first Indian police force was constituted in 1874 on the San Carlos Apache Reservation. The effectiveness of this group encouraged the establishment of similar organizations on other reservations. This practice received congressional approval in 1878 when Congress appropriated $30,000 for the employment of 480 Indian policemen. By the end of that year, Indian police were operating on one-third of the Indian agencies; and by 1890 virtually every agency had an Indian police force, comprising a total Indian police force of 770 men. The authority for creation of the Indian police did not provide for the prosecution of Offenders. Nevertheless, it was common practice for the Indian agent to act as judge or to delegate this duty to a subordinate or a trusted Indian. This practice gave impetus to the creation, in 1883, of the Courts of Indian Offenses. In that year, the’ Commissioner of Indian Affairs promulgated regulations providing for the establishment of such courts and setting forth substantive and pro- cedural rules under which the courts were to operate. The Indian agents were authorized to appoint judges and a code of offenses was set forth. In 1888, Congress commenced funding the Operation of these courts. By 1890, Courts of Indian Offenses existed at two-thirds of the Indian agencies. In 1921, Congress enacted the Snyder Act (42 Stat. 208) which permitted the Bureau of Indian Affairs to fund these courts. By 1926, some 70 Indian judges were receiving such funding. Through the early 1930's, tribal governments continued to founder under federal policies aimed at promoting assimilation, resulting in massive erosion of the tribal land base. However, in 1934, Congress abruptly ended this policy and passed the Indian Reorganization Act (IRA), (48 Stat. 984). The purpose of the IRA was to provide a frame- work for tribes to establish a revitalized tribal government. The IRA authorized and encouraged tribes to adopt new constitutions incorporat- ing all powers already vested in tribes, as well as other powers specif- ically enumerated in the Act. The IRA provided a distinctly Western model for tribal government. To implement the Act, the Department of the Interior prepared a model constitution which, with few revisions, was adopted by virtually all tribes organizing under the IRA. Generally, the adopted constitutions vested primary governmental authority in a popularly-elected tribal I council and authorized the tribal law and order code. In 1935, the regulations governing the Courts of Indian Offenses were revised. These regulations remain substantially intact today and are found at 25 CFR Part 11 (1978). A tribe remains fully subject to these regulations until it enacts a law and order code under its con- stitution. Thereafter, the regulations apply only to the extent that the tribe retains Indian judges and Indian police who are paid from federal funds. Many tribal courts and law and order codes were enacted under the authority of IRA constitutions. Although these tribal courts are legal- ly distinct from Courts of Indian Offenses, nevertheless the two court systems are, on inspection, quite similar. This has resulted from the pervasive influence of the regulations contained in 25 CFR Part 11. For the next thirty years, tribal courts progressed slowly, due primarily to the more pressing demands of land and economic issues in the post-depression era and the onset in the 1950's of federal policies favoring termination and assimilation. In 1953, Congress passed Public Law 83-280, (67 Stat. 588). This Act conferred upon five specified states all criminal and civil jurisdiction over reservation Indians. Other states were granted the Option of assuming such jurisdiction and several states exercised that option. However, the destructive effects Of termination were soon apprec- iated, and by the mid-1960's federal policy once again changed, moving from assimilation towards self-determination. This policy remains in force today. The year 1968 brought renewed congressional interest in tribal systems of justice. After several years of study and hearings, Congress passed the Indian Civil Rights Act of 1968 (ICRA), 82 Stat. 77. ICRA is premised on the conclusion that Indian tribal governments should be required to respect civil rights and liberties of persons coming under their authority. Tribes are not bound by the civil rights provisions contained in the United States Constitution. Acting under its plenary authority, Congress through ICRA created a.statutory set of new civil rights. to be honored by tribal government. Strictly speaking, these rights are not constitutional rights, since they derive from statute. However, the statute repeats the language of the Constitution and covers most of the civil rights and liberties found therein, with certain exceptions. Those exceptions were intended to avoid infringement on the cultural identity and autonomy of tribes. :n; May, 1978, the United States Supreme Court decided Santa Clara Pueblo v. Martinez, (436 U.S. 49). The Court held that, except for habeas corpus petitions from tribal court criminal proceedings, federal courts lack jurisdiction to hear suits claiming violations of ICRA by tribes or tribal officials. The Court concluded that tribal governments themselves, and in particular tribal courts, are the proper forums for testing compliance with the standards of ICRA. Thus, save for federal habeas corpus re- view, tribal courts now carry full responsibility for judicial enforce- ment of ICRA. PRESENT STRUCTURE OF TRIBAL COURTS Legal Structure Indian judicial systems may be classified today into three cate- gories based upon their mode of organization and methods of operation. These categories are: tribal courts, Courts of Indian Offenses (CFR courts), and traditional (or custom) courts. However, the three cate- gories share many common characteristics. The most common of the tribal judicial systems are "tribal courts" (see Table 5-1). Many are established under the inherent power of tribes to provide for the administration of justice as confirmed by the Indian Reorganization Act of 1934 (IRA), and specifically enumerated in tribal constitutions. However, a written constitution is not necessary for the creation of a court system and some tribes that function without constitutions have organized tribal courts. At the same time, some .tribal constitutions do specify procedures for creation of courts, the jurisdiction they may exercise, and methods for selection and removal of judges. Ordinarily, tribal court systems are subordinate in authority to the tribal governing. bodies. The relationship between these two branches of the Fort Berthold Tribe, seen in Figure 5-1, illustrates this pattern. The judges are either elected by the trib'i membership or appointed by the tribal council. Table 5-2 indicates the selection process followed by the coal-owning tribes. Appellate systems often exist, and may consist of judges of the tribal court or judges borrowed from other tribes' court systems. The manner of tribal judicial review of their court decisions is reviewed in Table 5-3. These tribal courts typically handle both civil and criminal matters. Examples of the types of cases are presented in Table 5-4. Most of these cases involve Indian activities on Indian lands, but increasingly the courts are assuming jurisdiction over non-Indian of- fenses as well. The second category of tribal judicial system is comprised of those courts established pursuant to provision contained in 25 CFR Part 11. Those regulations set out the procedure for the establishment of a CFR OHAOHHo>o Ono Onno oz .mnnsoo onnnonn no\oon OHnoOPBfi mm noon .mnnooo HOHOOQO mOoBHooH \MM .Ocnna who: Onn no mnnooo Onn so .mBOnmhm nnooo Hoannn O>On nos on thoOmona mOnnnH «BOnOsmnom a oonoquN .OBOH Oak .\M Odo N noon N N Ono N nO>HN can: one N Onome< onsnoooz Onncz Odo . 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OHHOnOmH NOON .nN oHocnnOm .nN ooosnom .on Bono NBOHm no>HN OooONONo ooonxoonm mnONno mnoBOOaOomHz noooo OHanaon mnOmnnoOO moonanowON \NnnONonNfl OOnoomON Hmnonoz moOHanowON ooOH Naoaanoo Nn>nu Ilmm .H \« on n mOmoo nnooo Hoanna no mOHNBOxm «In NHNOH on no: conanooO non OOOo NHNBH moonanHnHHOoo HmnOoOo \N .OoOO HONHnn mononmwOn OOoOnONaOO OnHooON \H .OanH HNON ONn no mnnooo Ozn oo OHNOHHO>O Onm snow 02 .mBOnmNm nnooo Hmann O>mn no: on NHnoOmOnN mOanH HBOnmamnON w OONONOHN .OBOH ONE \« N N HosN N N N nO>HN oonz N On: onmnoooz On: \m.Nmnoo w canon: N Noonm NOON wonoomnm On: onONnoom II moowmq OHNOBN \H \N mBOOe no OHQODN onOHmOmOz OcoONONo onONnnoz Onm>mz ONOon< mHHHanH: OHHOnmmH NOON .nN oHONnnOm .nN oooanom .on son: OBONNHNU xoonm nO>HN OBOONONQ noonxoonm ><>< NNN N >< NNNX >< NNNNNN ><><>< \N >4><><><><><><><><><><>< N><><><>< ononnH HmwOH oOHnOOoom nOnOOnmco Owd nOLBOz Onnna Honoooo Noonnn \m ONHNmOwUD: HOAHnH non mBOHnOOHnHHmoo OHmmm mlm NHMm HOooomnON nnONNom ONn co OHNOHHO>m Onm mnmo on .omH¢ co OHsmHHm>m Onm Onmo oz .mBOnmNm nnOOO HOAHnn O>ON no: on NHnoOmOnN mOanH HBO NNN NNNN Dd .BOnmNm nnoou OHHOnmmH .oonnn Noon one no monsoo was .I nOBOnON w OONONOHN .msoH ONE \« NNINNNNNNNNNNNNNNNNN nosN no>nm eon: Ocomn< chnoooz OnHNS On: BHOnoooz On: Nmnoo w NmnoH: Noonm NooN moHoomnm On: onONnoom moome no OHnOoN mBOO< no OHAOBN ONOmn< onOHmOOOZ OBBONONU onOznooz Onm>mz ONOON< OHHHanH: NOON .nN OHONnnOm .nN oooxnom .on 3on0 OOnoIOBONNHNU NBOHm nO>HN OcoONONu ooonxomna nOOHnno OHHBO>BH \oonnmnonN .HO UNH um Infiaoa NOonOnn< nOooOnOQ nOnnONOm \nonoOOmonN \NnmnOnOOm nnHHHmm manonu .ImOanH \« HOooomnON nnONNBm no OONNH onn annoy 17 Tradition also dictates direct participation of judges in court cases. The judge's role is perceived as that of a "counselor" tempering justice with compassion. Funding of Courts Funding for tribal court systems comes from. several different sources -- the tribes themselves, the Bureau of Indian Affairs, and the Law Enforcement Assistance Administration (LEAA). Table 5~7 summarizes the level and pattern of funding of the tribal courts involved in this study. Tribes vary greatly in their capacities to fund their own court systems. Funds are needed for many other essential purposes. Thus, economic constraints Often determine the degree to which tribes are able to develOp functional and respected court systems. Most tribes have found it difficult to pay the higher costs of courts caused by increas- ing caseloads and the requirements of the Indian Civil Rights Act. It has been noted that there is a striking similarity between the problems of tribal courts and those of neighboring non-Indian courts in rural areas with insufficient tax bases. The federal government has responded to the needs of tribal courts in recent years with financial assistance. This has been consistent with the congressional policy of enhancing tribal self-government. Prior to 1976, the BIA support program for tribal courts ‘was located :hI its Law Emforcement Division. In 1976 this responsibility was given higher priority and the BIA established a separate Judicial Services Division. This new administrative unit assists Indian courts in attaining greater professionalization and independence. 5 - 18 .noo oo mnONno .NnH>HnOe OOHHON OooHOoH OBOm One eneo oz .mONHnn moose Nne> onooon one onHOmeO Bo eneo by“ .ONHnE HNoz ONn no mnnooo ONn oo OHneHHe>e .mBOnmNm nnBOO Heann O>es no: on NHnOOmOnN mONHnE HBOneSenON w OONeNOHN .e3oH ONE \« anm ooo.mm ONn NooN «nm a: ooo.N no>nm eons anm\oonnn ooo.ma Nmo.m onomo< onmoosoz monoa nm oooonooo OH no nOnBBz a. 4“ cf“, . mnnooo HONHnE no onoooN nIm NHNm who mumw on .omH< .mnfiua Hmom ecu no muudoo mzu do maanHw>m .I one moon oz .mamummm uusoo Hmnfiuu m>m£ uoc ow mauaomoun monHuH HBoumSMuom a oonmxofim .mBoH one \« Amocoou \mmnnuu nonuo nunav mom mom on HGSN Azaanauoncfiv won on no» uo>Hm ocnz Amonnuu nonuo cunBV no» on on onomm¢ caduaooz mufinz on on on mu: :Hmuaooz mum on on mouse a sauna: Amonnuu nonuo :ufisv mom on o: xsowm xoom mafivGMuw on on on on: auonusom on o: o: madwmq no oanmsm o: o: wo% maoo< no cannon Amonnuu umnuo cunav ooh mom on ouoamomoz o: mom no» macmmmnu cuonuuoz Ammnnuu unnuo sunsv own no» won ohm>mz “monum\monnuu nonuo nunsv ooh no» mom onomn< mHHHHmon o: 0: mom mHHmAMmH on on non xomm .um on o: no» oaonuuom .um on no» on nmcxflom .um o: on on some on ooh oc macaw uo>fim wcaomono on mph on uoonxonam moouoon mnnnwooom coauwvmuuxm aofiumnnusnoolmmouu «monwua muunoo umauo van Hmnfiue amo3uon wuaoaooum< mlm mam¢H 5 - 27 Treatment, Personnel and Facilities Among the most pressing needs of tribal courts is the requirement that adequate treatment facilities and personnel be available to the court, especially for juvenile matters. Tribes are establishing, within the confines of budgetary limitations, mental health facilities, family counseling facilities, and alcoholism treatment programs. Attempts to maintain law and order on reservations and to rehabilitate criminals and families are frustrated when the treatment alternatives are not avail- able to the tribal court judge. The increase in the caseload of tribal courts also demands an increase in. tribal social services personnel. Perhaps the ‘greatest success of current tribal court programs is in the area of alcohol treatment. Surveys indicate that the utilization of such programs by tribal judges has had positive results in the reduction of crime on Indian reservations. Tribal detention capabilities ‘vary considerably. Larger tribes usually have tribal jails and smaller tribes either have detention facilities or contract with local non—Indian governments to utilize their facilities. Increased training for probation officers and counselors has en- abled tribal court judges to use effectively the complex of on- reservation programs in dealing with adult and juvenile crime and family matters. The major problem, however, lies in budgetary constraints which prevent even the most dedicated judge from accomplishing his tasks. It is hOped that with increased federal support and with the renewed interest-of tribal leaders, additional funding will be made available for these important purposes. 5-28 Public Law 83-280 Issues In 1953, Congress passed Public Law 83-280 (67 Stat. 588) which provided a means for states to assume jurisdiction over Indian lands and people. Several states were specifically granted such jurisdiction and other states were authorized to assume jurisdiction. Congress specif- ically prohibited any transfer of jurisdiction to states with respect to the regulation of hunting, fishing, and trapping, and the alienation or taxation of trust property. In addition, only state laws of general applicability could be extended to reservations. In 1968, Congress provided for tribal consent before any further jurisdictional transfers could occur. As declared in the Final Report of the American Indian Policy Review Commission, [199 (May, 1977)], "Public Law 280 is a failure of Federal policy on many levels." The record shows that where the state has asserted its jurisdiction, Indian personal and property rights have not been protected.‘ In addition, the Indian experience in state courts has been decidedly negative as a result both of anti-Indian prejudice as well as a lack of appreciation and understanding of Indian cultural values. A positive result of the failure of Public Law 83-280 has been the revitalization of Indian tribal courts described above. While the federal government surrendered its jurisdiction. to the states under Public Law 83—280, nothing in the legislation deprived tribal courts of their continuing concurrent jurisdiction. Thus, many tribal courts continue to operate in all spheres of reservation activity despite the Public Law 83-280 status of the particular reservation. 5 - 29 Moreover, the courts have made it clear that in light of con- temporary federal policy encouraging Indian self-determination, Public Law 83-280 should be viewed in the narrowest context possible. Thus, the Supreme Court has held that the imposition of state jurisdiction on Indian reservations did not include the right of states to tax Indian property interests, and other courts have held that the statute did not authorize the imposition of local zoning and building codes on property «M: an Indian reservation. Rather, it is the view of the courts that, with respect to civil matters, the only effect of Public Law 83-280 is to open the state courts to civil causes of action by and against Indians previously not subject to state jurisdiction. V Finally, it has been held that the exercise of tribal jurisdiction over a subject area may preempt the exercise of state jurisdiction. As tribes become more involved in such preemptive activities, responsi- bility fer resolving jurisdictional disputes will fall more heavily on the existing tribal courts. CONCLUSION Since the last part of the 19th century, Indian courts have developed from disciplinary instrumentalities of the federal government to sophisticated judicial tribunals exercising inherent powers of Indian self-government. Persons coming before the courts - whether Indian or non-Indian - are assured by federal law of receiving a fair trial consistent with due process and other protections. Further assurance that justice will be done is found in the dedication of tribes, Indian court judges, and the federal government to strengthening Indian courts through better funding, staffing, facilities and training. 5-30 m- [k in m. 5? on m“ 113“ 3:55 The unique role that tribal courts have played and will continue to play in tribal life mandates the continued attention of both tribal and federal leaders. Only tribal courts can administer justice in such a way as to maintain the delicate balance between contemporary legal requirements and traditional Indian cultural values. 5-31 CHAPTER 6 EXISTING TRIBAL LAWS AND REGULATIONS RELATED TO NATURAL RESOURCES CHAPTER 6 EXISTING TRIBAL LAWS AND REGULATIONS RELATED TO NATURAL RESOURCES Introduction Indian tribes have long exhibited a strong interest in regulating natural resource activities on their reservations, and have established codes, regulations and agencies to administer them in a number of areas. Among these resource areas are: fish and wildlife protection; land use planning; air and water quality assessment and protection; and mining and other forms of energy supply development. The Surface Mining Act of 1977 affects coal-owning tribes in two major respects: it sets new performance standards for mining and reclamation, and, when amended as proposed in Section 710, it will afford the tribes opportunities to assume additional functions through the administration and enforcement of this law. From the perspective of assuming larger regulatory functions under the Act, the past experiences of the tribes in regulating mining, their existing laws, regulations, and administrative: apparatus, and their current activities in analogous natural resource areas are all relevant. This chapter is divided into two parts. The first presents a brief discussion of the historical background of coal mining regulation on Indian lands. The second reviews the existing laws and regulatory practices of the sub-contracting tribes which are relevant to the Sur— face Mining Act, and tribal regulation of other natural resource activi- ties which are similar to what would be required to fulfill the purpose of the Act. THE REGULATORY BACKGROUND OF COAL MINING ON INDIAN LANDS Participation in the regulation of surface mining on Indian reser- vations by the tribes themselves is a relatively new activity. The Indians' Opportunities to plan for and to regulate mining have been limited in the past as a result of a number of factors. Prior to the passage of the Indian Reorganization Act (IRA) in 1934, the extent of tribal control over mineral develOpment was minimal. Although the tribes had the right to decide whether or not to develop their re- sources, once tribes or allottee owners had agreed to develOpment, the negotiation of leases and the regulation of mining operations rested largely in the hands of the Secretary of the Interior, within the ambit of existing federal laws and regulations. After passage of the IRA, those tribes that elected to organize under the Act were able to negoti- ate leases in accordance with their IRA constitutions or charters, subject to the approval of the Secretary of Interior. However, the coverage afforded by the mineral leasing laws which were applicable to Indian lands was not uniform and in many cases was not adequate. Con- gress attempted to remedy the situation by passage of the Omnibus Indian Mineral Leasing Act in 1938. The Omnibus Act was intended to provide comprehensive authority for the leasing and development of Ininerals on tribal lands, including Executive Order reservations. Regulations adopted pursuant to the Act, however, did not adequately protect either the Indian lands from en- vironmental damage or the pe0ple living on them from health and safety hazards. Moreover, general awareness of both environmental and public health considerations has grown in breadth and depth over the course of the last several decades, and would, in any event, have encouraged promulgation of new standards. In 1969, the Department of the Interior augmented the existing regulations so that consideration and protection of a broad array of ecological, social, and cultural values was made a prerequisite of the approval of agreements concerning exploitation and surface mining of tribal and allotted lands. These concerns were reflected in the follow- ing policy statement: It is the policy of this department to encourage the develOpment of the mineral resources underlying Indian lands where mining is authorized. However, interest of the Indian owners and the public at large requires that, with respect to the exploration for, and the surface mining of, such minerals, adequate measures be taken to avoid, minimize or correct hazards to the public health and safety. (25 C.F.R. 171.1. See also 25 C.F.R. 177.) These federal regulations, which are administered by the BIA, have provided the basis for most existing regulation of Indian mineral de- velopment. Since passage of the federal Surface Mining Act in 1977, most major coal-owning tribes have expressed strong interest in creating similar tribal laws and regulations. In addition to increased opportunities to participate in the regu- lation of mining on Indian lands, the tribes now have greater knowledge about the resources they possess and their development. In the past, the paucity of accurate and detailed data on natural resources and their develOpment was a factor which contributed to the lack of opportunity for tribal planning and regulation of mining. Technological advances and the increasing need to locate and develop new sources of energy supplies have spurred more systemmatic and detailed surveys of resources in many areas of the United States in recent years. Among the benefici- aries (fl? this larger trend have been Indian tribes who own energy re- sources. In conjunction with the greater degree of political authority they have exercised in recent years, the tribes have been able to make use of‘new data concerning their resources, and in some instances to undertake their own studies of the available resources. Increased knowledge of what they own and how it could be developed has done much to facilitate planning for development and awareness of the sorts of regulation which development might entail. The current strong interest by tribes in regulating the en- vironmental effects of mining on Indian lands coincides with the recent, more general trend in the country toward the recognition and furtherance of environmental and social values in public policy. Until recently, development of mineral resources was primarily an economic and technical matter, and there was only limited awareness of and concern for its external effects. Indian tribes, as well as some other groups, had few apprOpriate outlets to express concern for or disapproval of, the threat some mining Operations posed to other values or to attempt to avoid or minimize these hazards. The Surface Mining Act of 1977 requires that explicit consideration be given to values which might be adversely affected by mining operations. The Act also requires evaluation of the conflicts among competing objectives, and regulation of mining in such a manner as to protect and promote the general interest of the tribal (or any other affected) community. INDIAN REGULATORY APPARATUS AND EXPERIENCE In the last several years, some of the major coal-owning tribes have been increasingly involved in planning, regulatory, and enforcement tasks relevant to those required under the Surface Mining Act. Although none of the tribes currently have laws, regulations, offices, and proce- dures which would satisfy all of the requirements of the Act, several of them have established ordinances, regulations, offices, and procedures which are intended to serve similar objectives, and they have had con- siderable experience:‘with the regulatory' process in. related natural resources areas. Existing Laws and Regulations On Mining Of the subcontracting tribes, one, the Crow Tribe, is currently in the process of considering a broad—gauge law -- the Crow Coal Mining and Reclamation Ordinance -- which addresses the range of concerns expressed in the Surface Mining Act. The basic authority to enact new laws is present, however, in other tribal constitutions, and can be utilized should tribes decide to undertake mining regulatory functions. The types and extent of existing laws regulating mining vary con- siderably among tribes. The Northern Cheyenne Tribe and the Three Affiliated Tribes of the Fort Berthold Reservation have already passed a number of resolutions pertaining to some aspects of mining and to mineral resource development in general. Two tribes, the Uintah-Ouray and the Southern Ute, do not have specific laws, codes or regulations applicable to mineral exploration and development. At present, the Code of Federal Regulations governs most aspects of these activities on their reservations. However, these tribes have begun to establish the ap- paratus for long-range planning with respect to mining as well as other natural resource areas, and a major function of the planning agencies is 6 - S to make decisions regarding future laws the tribes will need in these areas and draft proposed laws and resolutions. All of the tribes have enacted some resolutions aimed at preventing environmental degradation of lands, air, and water on the reservations. Many of these resolutions pre-date the Surface Mining Act, and are not specifically addressed to its concerns or to mining activites. None- theless, some of these resolutions are or can be made consistent with the objectives of the Act. The tribal Environmental Protection Com- missions of the Northern Cheyenne and Navajo Tribes are, for instance, charged ‘dth protecting the quality of the reservations' waters, quite apart from the requirements of the Surface Mining Act. In the event that the standards set by the Act differ from those embodied in the resolutions establishing the commissions, it is likely that amendments reconciling these differences can be enacted. In a similar vein, most tribes have passed land use and conserva- tion ordinances. These are not directly concerned with mining activi- ties, and they were passed with the primary intention of regulating agricultural practices, hunting and fishing, and general industrial activities. In some instances, it is likely that they can be amended so as to incorporate the standards set. by the Surface Mining .Act; in others, they may serve as models for new laws intended to regulate mining. Existing laws of the Three Affiliated Tribes of Fort Berthold establish and delegate authority to protect and preserve the tribe's prOperty, wildlife, and natural resources. Although they do not speci- fically address the question of protecting these assets from adverse effects associated with coal mining, it is likely that they can be broadened in such a way as to do so where necessary. Because a number of existing tribal laws proceed from a recognition of the need for conservation and careful use of natural resources, it is probable that they can be readily amended to incorporate the objectives of the Surface Mining Act. Regulatory and Administrative Offices There is considerable variance among the tribes with respect to the size, scape, and degrees of authority of their regulatory bodies and administrative offices, as well as major differences in the way the several tribes have chosen to divide areas of function. In addition, the exercise of these functions is sufficiently new that few patterns have been established and further changes may occur as the tribes under- take enlarged programs and additional tasks. There are, as one might expect to find, indications of a progression from undertaking small- scale, relatively non-technical regulatory functions to the establish- ment of larger offices, staffed by technically-trained personnel, deal- ing with several interrelated and complex subject areas. Thus, most tribes have been involved in the process of granting (or deciding not to grant) permits for a variety of activities: hunting; fishing; land use; building; and mineral exploration for some time. In most cases, wild- life conservation and the maintenance of unspoiled areas has come earlier than preservation of air and water quality, and only recently have there been efforts, such as the pending Crow mining ordinance, which unite several regulatory objectives affected by one activity. The experience of the Three Affiliated Tribes of Fort Berthold is illustrative of several aspects of increasing tribal involvement in formal regulatory activity. In 1955, the tribal council established the office of game warden to protect wild game on the reservation from poachers. Over the years following, tribal regulation of fishing and hunting expanded, but most decisions and official actions remained the responsibility of the tribal council. The council set license fees, granted licenses for hunting and fishing, and adopted the regulations which governed those activities. In 1975, the tribes established the Indian Action Team which later became the Tribal Government Task Force. It was the responsibility of this body to administer tribal development programs, and work toward self-determination and self-sufficiency. On the recommendation of the Task Force, the tribal council created the Department of Game, Fish and Recreation in November, 1975. The Department was granted authority to administer all ordinances relating to fish, wildlife and recreation, and to set its own operating and permitting prOcedures; the Tribal Business Council, however, retained the authority to approve ordinances, licens- ing and fees in these areas. In 1978, the Tribal Government Task Force recommended that the tribes establish an Office of Natural Resources and Energy Development (ONRED), and funding for this entity was obtained from the BIA. ONRED was given a broad subject area from the beginning; its responsibility for this area was initially advisory but has since been expanded to encompass regulation and enforcement in a largely autonomous manner. ONRED has been delegated authority to manage all natural resource de- velopment on the Fort Berthold Reservation, and currently regulates activities of oil and gas companies on the reservation. It has estab- lished c00perative relationships with the relevant federal agencies, and in some areas depends on them for technical information, surveys, and inspections. It also is responsible for tribal planning with respect to coal mining and would be the principal agency involved when the tribes undertake regulatory activities under the Surface Mining Act of 1977. 6 - 8 In addition to these two regulatory offices, the Fort Berthold Tribes have recently created an Office of Planning, which has been directed to develOp a comprehensive land use plan - a matter bearing significantly on future mine siting questions. Although the experience of the Three Affiliated Tribes and the particular planning and regu- latory offices they have established differ considerably from those of other tribes, they are to some degree indicative of the general cap- abilities of the coal-owning tribes in the regulatory area, the in- creasingly larger and more complex activities being undertaken by the tribes, and of the determination of many tribes to take on more re- sponsibility for resource regulation. Regulatorngrocedures and Review As a result of the separate development of Indian regulatory activities, the procedures followed vary considerably from one tribe to another and among agencies within tribes. The establishment of standard regulatory procedures shares with the creation of regulatory entities the relative newness of the undertaking and an element of ex- perimentation. The creation of new agencies tends to build on and add to the forms used in earlier ones, and the development of processes and procedures tends to evolve similarly. All of the subcontracting tribes have had some experience with granting permits for activities having to do with natural resources and have developed procedures for doing so. When some of the less complex activities such as hunting or agricultural projects are involved, the tribes have generally determined their own standards for granting or denying permits. In more technical areas, the tribes often rely on information and advice from the relevant federal agencies in deciding what standards to set. And, in some areas, such as coal mining, the required standards of performance will presumably be: determined ‘by generalLy applicable federal regulations. In certain areas, however, the tribes have developed more stringent standards than are required by federal regulation and have also acquired the expertise needed to main- tain them. The Northern Cheyenne Tribe's petition to EPA for de— signation as a Class I area under the Clean Air Act is one such case. In the areas of technical evaluation and inspection, some tribes ' have developed sophisticated procedures in those fields where: 1) they have considered the matter one where they could perform an important role which was not then being fulfilled, and 2) they have been able to obtain financial and technical assistance from federal agencies. Most tribes have received funds under EPA's "208" program to establish data bases on water quality. Some have worked directly with EPA and have acquired a degree of competence in performing these evaluations. In other cases, tribes have subcontracted the projects to state or local government agencies *which. already' had the ‘necessary’ expertise. The Navajo Tribal Council considered a variety of environmental considera- tions important enough to the tribe to establish its own Environmental Protection Commission in 1972. The tribe authorized the commission to analyze the environmental impacts of diverse develOpmental activities on the reservation and to advise the tribal council on the environmental standards to be set in leases. Inspection and enforcement functions are generally exercised by the tribes in those areas where: they have or can develop the expertise to do so; where there seems to be a need for the tribe to become knowledgeable and involved; and where the tribe can obtain the funds to mount an effective program. In these respects, the 6-10 expansion of tribal inspection activities is generally analogous to the enlargement of other aspects of tribal regulatory activities. The degree of c00peration of Indian regulatory authorities with other governmental entities is generally quite high. There are some issues in dispute and some instances in which the parties in question have not yet found a suitable working relationship, but these are neither a large prOportion of the whole nor a common occurrence. The tribes are very much aware of the benefits accruing from cooperative relationships with most other governmental entities. Cooperative ar- rangements range from surveys conducted jointly with USGS, BIA, EPA and other federal agencies to agreements with local law enforcement officials to try Indians accused of crimes committed off the reservation in Indian courts and non-Indians charged with crimes committed on Indian lands in courts in their own communities. In a similar way, cOOperation among Indian regulatory agencies is high; the gains from cooperative behavior are too great to be lightly foregone. Public Participation In and Judicial Review of Decisions With respect to public participation in and review of decisions by administrative or judicial authorities, the tribes are moving toward increasingly formalized procedures. Some tribes have recently enacted legislation which addresses these purposes. The Crow Tribal Court has been authorized by tribal resolution to review all decisions of admin- istrative agencies and organizations. The Three Affiliated Tribes of Fort Berthold have specifically devised and instituted a variety of procedures to encourage public participation: notices of pending issues; public meetings to consider such issues; requirements for the publication and availability of information, and requirements that 6-11 hearings and referenda be scheduled if petitions bearing a sufficient number of signatures are submitted requesting them. Other tribes have similar procedures which are applicable to some aspects of regulatory activities. However, because in the past tribal council and local district meetings have been the customary place for raising issues of public concern or of interested parties to a decision, and because the tribal communities are usually smaller, more closely knit, and more con- sensus—oriented in their decision-making, not all of the formal aspects of public participation and of administrative or judicial review which federal regulations ordinarily require have been established or made the subject of explicit legislation. The instances in which such procedures have been instituted imply that sometimes the tribes themselves have become aware of a need for such procedures, and that they can devise and use suitable procedures when necessary. Mereover, a tribe which wished to and was capable of undertaking other major aspects of the regulatory process would probably be capable of fulfilling requirements in these areas, not least because such procedures are comparatively inexpensive. As the prospect of mining is realized on more reservations and on a larger scale, and as the tribes are encouraged to expand their capabili- ties, the affected tribes will undoubtedly develop the appropriate regulatory apparatus to govern this activity. 6-12 dent .av-e atory trict mm :ibal can- :ects ;+ f I ‘1'- ! t'a iures have 1 82C shed :05 base ive. m5 15:! CHAPTER 7 TRIBAL PHYSICAL RESOURCE DATA BASES CHAPTER 7 TRIBAL PHYSICAL RESOURCE DATA BASES Introduction The effective regulation of surface mining on Indian lands, as on other lands, requires that the regulatory authority possess a physical resource data base and information system. This is necessary to evalu- ate properly permit applications and mining and reclamation plans, to designate lands unsuitable for udning, and to reclaim abandoned mined lands. Public Law 95-87, the Surface Mining Control and Reclamation Act of 1977, recognizes the need for the development of data and analyses so that regulatory "decisions [are] based upon competent, scientifically sound data and information". The purpose of this chapter is to document the information that is available to tribes that would help them establish capabilities needed to meet the objectives of the Surface Mining Act. The chapter is di- vided into five parts. The first discusses the information requirements of P.L. 95-87 from the point of view of a tribal regulatory authority. The second part provides an overview of the tribes' data bases and of the tribal organizations that maintain and use them. The third part discusses the wide variety of existing resource data bases available to tribes which complement their own data. The fourth part summarizes the resource data bases of each of the subcontracting tribes and those of the other 18 affected tribes. A concluding part discusses the po- tential for expansion of the tribes' physical data bases and information systems as they establish surface coal mining regulatory authorities. INFORMATION REQUIREMENTS The Surface Mining Control and Reclamation Act establishes certain regulatory activities and programs to ensure that surface mining activi- ties attain particular environmental objectives. Examples of major activities and programs are the permitting process, the program for designating lands unsuitable for mining, and the abandoned mined lands program. The permitting process involves the review of permit applica- tions, and of naming and reclamation plans to ensure that a potential operator meets the environmental objectives and standards of the Act. The process for designating lands unsuitable for mining involves locat- ing and removing from consideration as mine sites those lands for which the regulatory agency determines that reclamation is not technically or economically feasible. The abandoned mined lands program involves a mapping of these previously mined lands and their reclamation. The successful implementation of these programs requires that a regulatory authority have certain types of physical resources. data organized for easy access. The types of resources about which in- formation is required include: the geology of the area; the water re-1 sources; the existing and potential land use, and the soils of the area. In addition, there is an omnibus category for other types of data which may be pertinent. The types of data subsumed under these headings are summarized as follows: Geology The Act requires that an operator supply geologic profiles based upon exploration drilling records showing the geology of the area, the composition of the overburden strata and the underlying strata to demon- strate technical capability to mine the coal. Rider seams, crap line, and strike and dip of the coal must be checked for accuracy and con- sistency. If the regulatory authority determines that certain lands are unsuitable for mining, then it must prepare a detailed statement on the. area's potential coal reserves. water Resources hThe operator is required by the Act to minimize disturbance to the hydrologic balance. Proper review of the operator's application re- quires that the regulatory agency know the past water quantity and quality for both surface and ground water sources, characteristics of affected aquifers and recharge zones, the location of alluvial valley floors in the vicinity, etc. Land Use The operator is required to submit land use maps showing current land ownership and expected mining sequence and timing. The regulatory authority must determine with its own land use data if there are any potential areas of conflict, such as prime farm lands. To assure ade- quate reclamation, topographic maps showing pre-mine contour are re- quired for the area to be mdned. Land use and condition data are also required of the regulatory authority to designate lands unsuitable for mining or to identify abandoned mined lands. seas; The Act also requires that an operator stabilize surface areas, segregate and replace top soil, and protect prime farm lands. To pro- vide for adequate action to achieve this standard, the regulatory au- thority must know the soils and their characteristics throughout the area. Other Baseline Data Further, the Act requires that the mine and reclamation plans be consistent with the physical environment and climatological conditions of the permit area. This requires of a regulatory authority data on air quality, climate, historical/archaeological resources, fish and wildlife resources, and data on native vegetation. In summary, the regulatory authority should have access to a sound physical resource data base in order to evaluate and verify the explora- tion applications and the mining and reclamation plans submitted by Operators. Further, it requires data to determine lands that are un- suitable for mining, or which are abandoned and unreclaimed. To perform these functions, the regulatory authority needs data and analyses on the geology, water resources, land use, soils, physical environment and climatological conditions of each area that could be affected by surface mining. AN OVERVIEW OF THE TRIBAL PHYSICAL RESOURCE DATA BASES Types Of Available Information The physical resource data bases of the coal-owning tribes vary in terms of: l) the extent of information available; 2) how the information is organized and maintained (including the extent of systemization); and 3) how the information is currently used for land use, water or minerals planning. The quality of the data bases most directly related to sur- face coal mining is highest in those areas where a significant amount Of mineral resource development has been undertaken. Where mineral ex- ploration and production have already taken place, company drilling programs have generated considerable information with respect to the reservation's mineral potential, its geology, its hydrology, and several other characteristics. In addition, in those cases where mineral de- velopment has taken place after the passage of the National Environ- mental Policy Act (NEPA), the Bureau of Indian Affairs and/or the U.S. Geological Survey have prepared environmental impact statements for each new lease proposal. In those instances where tribes have not yet begun development of mineral resources, many have benefited from extensive natural resource inventory programs conducted by federal or state agenc- ies concerned with planning for the region's resources. Finally, all Of the tribes concerned with surface coal mining have on file tribal reports, federal government agency reports, and, in some cases, company reports which provide data on the reservation's resources. The individual subcontract reports indicate which types of data are avail- able for the reservations; they are discussed below. Geology. The Bureau of Ihdian Affairs has sponsored a series of studies on the geology of most of the reservations, including those which possess substantial mineral and water resources. In the 1960's and early 1970's, the Bureau of Mines examined the "mineral resources and their potential on Indian lands" as part Of its planning effort for the Missouri River Basin. These reports compiled the existing litera- ture on the geography, geology, mineral deposits and production on the reservations in that region. In 1974-75, the BIA initiated compre- hensive "minerals inventories" of the reservations to support the Bureau's trust activities in this area. This continuing effort is being conducted in conjunction with the Bureau of Mines and USGS. It consists of three major phases: ° Phase 1: involves the collection and summary of all .3 published and unpublished data on the geology of tribal mineral resources. Phase II involves limited exploration to confirm the findings developed in Phase I. Phase III involves an assessment of the quantity, quality and marketing characteristics Of specific deposits. Phase I studies have been prepared for all the coal-owning tribes participating in this study, with the exception of the Isabella Reserva- tion. Phase II has been proposed or initiated for the Blackfeet, Cheyenne River Sioux, Fort Apache, Crow, Fbrt Belknap, Fort Berthold, Pueblo of Acoma, and Wind River Tribes. Phase III studies have been prOposed or are in progress for the Pueblo of Laguna, Uintah and Ouray, and Wind River Tribes. On those reservations where exploration and development of mineral resources is taking place, geologic data also are available from reports submitted by companies involved in exploration or development of tribal resources. Leaseholders and other contractors must submit records of all mine plans, core drillings, production, and related matters to USGS and/or the tribe involved. The federal trustee compiles available statistics on the quantities and quality of the minerals produced. In addition, for’ most areas undergoing exploration (n: development, the 7 - 6 tribe and the BIA maintain maps which indicate the extent of the mineral deposits, and ownership of surface and subsurface rights. Water Resources. Maps and analyses of the reservation's hydrology and water resources have been prepared by various federal and tribal agencies. Many of these reports have been developed for specific pur- poses such as water rights assignments or litigation, irrigation pro— jects, pollution control and water supply systems. The reports include: USGS "open file" investigations on ground water, water quality, and hydrology; water quality monitoring and planning in support of Environ- mental Protection Agency regulatory programs and the EPA 208 management programs, and Bureau of Reclamation plans and evaluations of irrigation, reservoir and power generation facilities. Furthermore, the Indian Health Service of the Department of Health, Education and Welfare main- tains records on water wells within the reservation. Land Use. Most tribal governments retain records on reservation land uses through permit, public facility and planning programs. These data are supplemented by the files and reports maintained by the BIA agency and area Offices that administer realty, crop, forestry, roads, archaeological, and other programs. Many tribes have also undertaken the production of detailed economic development plans which identify and analyze the location of natural resources and potential sites for re- sidential, commercial and industrial activities. A number of tribes are also preparing comprehensive land use plans under the Department of Housing and Urban Development's "701" planning program. Tribes and/or the BIA maintain maps and aerial photos showing roads, utility rights-of—way, commercial and industrial sites, agricul- tural areas, forested areas and archaeological sites. Moreover, the 1980 Census of Housing will provide detailed data on the location of dwellings on the individual reservations. .Sgilg. Both tribal and trustee efforts have provided tribes with soil inventories on reservations. The BIA has prepared reports on the "Soil and Range Resources" of most western reservations. The U.S. Department of Agriculture also conducts soils surveys for the tribes. These studies are refined on sites selected for a particular develop- ment. Other Data. The environmental base line data available to tribal officials also include reports on vegetation, forestry, fish and wild- life resources and on air quality and climate. Much of the vegetation research has been a product of BIA's soil and range surveys and BIA agricultural reports. The Bureau also provides forest inventories and management planning for the reservations. A. number' of tribes ‘have worked with the U. S. Fish and Wildlife Service to identify and protect their fish and wildlife resources. Collection of air quality and cli- matological information generally has been done in conjunction with federal regulatory programs and includes data on the levels of particu- lates monitored under the Clean Air Act, meteorological characteristics for the airshed, average seasonal precipitation, and the average dura- tion and velocity of prevailing winds. In addition, many tribes have conducted studies or have been the subjects Of regional socio-economic research to identify area economic and demographic characteristics and the potential impacts on reservation communities of new or expanded energy development activitiy. Organization of Tribal Data Bases Portions of the physical resource data bases maintained by tribes are usually dispersed among the. agencies of the tribal governments charged with different resource planning :nul management activities. Each of these agencies maintains its data base in a library and/or a computerized data file, and shares it on an as-needed basis with other tribal organizations. Examples of the most common administrative struc- tures used by tribal governments to maintain these data for their re- source management activities are described below. Department of Natural Resources. A number of tribes have estab- lished Departments of Natural Resources to administer plans and re- gulations concerning natural resources. These departments are the repositories of the tribes' information. concerning such. natural re- sources as grazing, land, timber and water resources as well as data pertaining to coal, oil, gas and other mineral resources. The depart- ments are generally organized into resource-specific divisions. Environmental Protection Offices. Some tribes have established environmental protection offices to monitor the air and water quality on their reservations. This type of cmfice is a source of environmental base line information concerning regional air and water quality, and is the repository for regional environmental impact statements. The Navajo and Northern Cheyenne Tribes' Environmental Protection Commissions are notable examples of tribal environmental protection offices. Tribal Planning Offices. Most tribes have created planning offices which prepare both long and short range plans on how best to develop tribal resources. A tribal planning office usually is responsible for compiling and producing land use maps, property ownership maps, pOpu- lation and income information, and specific data on individual develop- ment projects. Research Projects. Some tribes have established "research. pro- jects" or independent research organizations. In a number of cases, it is this office which carries on the tribes' environmental monitoring activities, natural resource planning, and land use planning. In others, the research organization serves as an adjunct to the tribe's internal planning :uui resource management organizations. These organ- izations also conduct basic research to develop the physical resource data base. Examples of such projects are those established by the Nor- thern Cheyenne, Northern Ute and Crow Tribes. .chgr. The Bureau of Indian Affairs, at the agency level, is often an integrated part of each tribe's 'management effort, and provides technical assistance and other services. In many cases, BIA range-land experts, geologists and other officials work directly with tribal per- sonnel in develOping needed reports. The BIA also is the repository of the tribe's land ownership records. For the most part, infOrmation concerning tribal physical resources is distributed among the relevant agencies rather than being stored in a single system. The format of most tribal data bases is that of a catalogued library of the various studies and analyses that have been compiled regarding tribal resources. As resource development expands, it will undoubtedly become necessary to computerize many types of data which are currently stored in other formats. The Northern Cheyenne Research Project has recently acquired a! sophisticated time-sharing 7 - 10 computer system capable of supporting numerous scientific and ad- ‘ministrative applications. All frequently-used data ‘bases are ‘kept on-line, allowing rapid access to, and analysis of, hydrologic, geologic and socioeconomic data. Other tribes also possess some computer facili- ties, and are working toward expansion and rationalization of their data bases and capabilities. The Jicarilla Apache, Uintah and Ouray, and Pueblo of Laguna tribes working in conjunction with CERT, have under- taken systematization of their physical resource data. On most re- servations, the Department of Natural Resources or the planning office maintains the information system, and serves as the liaison with the external agencies which maintain regional resource data. Use of Tribal Resource Data Bases Tribal resource data are currently being used for various land use, water, minerals and environmental protection activities of the tribal governments. For example: ° Data on the geology, hydrology and chemical pro- perties of tribally-owned minerals are currently being used by tribes to identify deposits which are economically feasible to develop. These data also are being used to evaluate exploration and develOp- ment contracts; Water resource data are currently being ‘used to determine water availability and suitable uses, to estimate average flow and flood patterns, and to locate potential groundwater reserves; Most tribes conduct water quality planning programs under the aegis of the Environmental Protection Agency; Land use data are being used to prepare comprehen- sive land use and zoning plans in order to designate and implement future mineral, recreational and agricultural development programs. Range. land information. is currently being used to establish prOper range management programs, and to determine range improvement potential. 7 - 11 OTHER RESOURCE DATA AVAILABLE TO TRIBES The in-house tribal physical resource data systems are augmented and complemented through coordination of efforts with the agencies that collect environmental base-line data as part of their own programs and in support of tribal initiatives. Tribes have access to much physical resource and other data from. federal, state Iand local governments, regional planning authorities, environmental groups, universities, information companies and ndhing companies. Among these are the fol- lowing. Federal Agencies Department of Agriculture. The USDA provides information upon request concerning a variety of subjects from agricultural statistics and prices to soils and vegetation mapping. Among the divisions within the USDA, the following are the most important sources of physical resource data for the tribes. ° Division of Agricultural Economics. This agency collects and analyzes information on farm land productivity, agricultural commodity demand and prices. The agency also makes forecasts of demand and prices. United States Forest Service. The USFS collects information (n1 forest productivity, forest manage- ment, forest product evaluation and forest environ- ments. USFS maintains Regional Forest Environmental Protection Units to monitor the forest environments and measure pollution damage. Soil Conservation Service. The SCS conducts soils mapping and other investigations. The agency clas- sifies soils and rates their capabilites, in such areas as engineering suitability and irrigability. Department of Commerce. The Department contains the Bureau of the Census anui the National Weather Service. Both these agencies provide important data and information. 7 - 12 Census Bureau. This agency provides population statistics and maps, and has just completed, a map- ping project in conjunction with the BIA on the reservations involved in this study. This effort will enable the Bureau to aggregate population, housing, and other statistics for each reservation in the 1980 census. National Weather Service. The agency provides current and historical base-line meteorological information. The National Oceanic and Atmospheric Administration also maintains an Environmental Research Lab and Environmental Data Service to supplement air quality base-line data. Department of Energy. DOE is a.source of information on national and regional energy demand, supply, prices and federal policy. Research conducted within DOE supplies information on extractive technology and on socioeconomic impacts of energy development. Environmental Protection Agency. The EPA provides information on air and water quality, pollution monitoring and pollution abatement, and enforcement techniques. EPA's "Storet" program provides a computer print-out detailing correct environmental data for specific: regions. The following divisions within EPA maintain important data relevant to mine regulation: Air and Hazardous Material Division. This division provides air quality and air monitoring information as well as information on toxic materials. ° Water Division. The division conducts water quality assessments and hydrologic studies. Surveillance and Analysis Division and Enforcement Division. This division conducts field investiga- tions and enforces water and air quality regula- tions. Department of the Interior. DOI is the largest single federal source of information related to tribal mineral resource programs. The department contains the United States Geological Survey, Bureau. of Indian Affairs, Bureau of Land Management, Bureau of Mines, Office of Surface Mining, Bureau of Reclamation, and Fish and Wildlife Service. 7 - 13 United States Geological Survey. USGS is a valuable source of maps, geologic reports and water resource reports to tribes. USGS also offers topographic and geologic mapping over most areas of the United States, and conducts geologic and hydrologic inv- estigations throughout the country. The agency currently is contracting out a program to map the coal resources of all federal lands. In addition, USGS maintains :1 network of stream gaging stations to determine stream flow, flood frequency and water quality, and conducts water resource evaluations of both surface and ground water. Bureau of Indian Affairs. The BIA is the lead agency in programs concerning Indian lands. In the area of mineral development, programs sponsored by BIA are conducted in conjunction with the USGS. The BLA also maintains Indian mineral and surface land ownership records at both agency' and. area level offices. Bureau of Land Management. The BLM is in charge of managing all federal lands. In many cases, BLM lands are adjacent to reservation lands, and reports covering BLM lands are useful in evaluating adjacent reservation lands. The agency also produces surface management maps and minerals management maps. United States Bureau of Mines. The Bureau provides technical assistance in mining and reclamation technology, and can provide access to computer systems for reserve estimates, mine models and economic models of mining. Office of Surface Mining. OSM is the lead agency for administering the provisions of the ‘Surface Mining Act. The Office promulgates the regulations that govern surface coal mining, approves and over- sees state programs to administer the Act and re- gulates surface mining on Federal lands and in states which have not established an approved pro- gram. The Office conducts research and development in the area of reclamation techniques, collects reclamation information and maintains a data center for regulatory agencies to use. In addition, OSM sponsors State Mining Institutes which conduct research in mining and reclamation technology. The Office is divided into four' divisions: Technical Services, Inspections and Enforcement, Abandoned Mined Lands, and State and Federal Programs. The Office is also divided into regions; most tribes are in the Western Region. 7 - 14 Bureau of Reclamation. The Bureau is a source of water resource and soil irrigation information for lands on or near existing or possible Bureau land reclamation projects. ° Fish and Wildlife Service. The agency administers the Endangered Species Act and monitors the nation's fish and wildlife resources. This agency is a major source of wildlife population, migration and manage- ment information. State Agencies State agencies which are functionally similar to federal agencies provide detailed information pertaining to natural resources on a state level. The state agencies most likely to provide valuable information to a regulatory authority are the departments of agriculture, state forest services, state resource offices, state geological surveys, state environmental protection offices, and reclamation authorities. Regional Planning Authorities There are a number of regional planning authorities which cross state boundaries. These agencies typically supply planning support to state and local governments and, to a lesser extent, tribal governments. For the most part, they focus on regional economic development or envir- onmental protection problems. Since tribes have often not been re- presented (H1 these commissions, their needs have not always been ade- quately addressed. Nonetheless, the commissions have supported tribes on some occasions and continue to be a source for regional data. The Four Corners Regional Commission, the Old West Regional Commission, and the Missouri River Basin Commission encompass the land areas where most of the reservations with which this study is concerned are located. 7 - 15 Other Sources Local Governments. Local governments often have base-line data on air and water quality, and stream flow and flood frequency for streams within their boundaries. Universities. Public and private universities conduct research on myriad subjects relevant to mining regulations. These include agricul- tural studies, geologic studies and water quality studies. Universi- ties also serve as repositories for a wide range of information and as a source of computer facilities and laboratories. Information Subscription Services. A number of private companies offer information subscription services with respect to environmental regulations and new developments. Some services provide geologic reports, drilling records and industry production and pricing statistics. Among the most helpful are: Environmental Reporter; Energy Users Report; Environmental Regulation Handbook; and reports from the Petroleum Infor- mation Company and the American Stratigraphic Company. All of the coal-owning tribes have worked with a number of these agencies and information sources in their resource planning and manage- ment, and they can be expected to continue do so when regulating surface coal mining activities. SUMMARY OF TRIBAL REPORTS The subcontracting tribes have all described their physical re- source data bases and their mineral resource activities in their re— ports. The following passages provide a summary of that information and a brief consideration of comparable information for the other 18 af- fected tribes. 7 - 16 All of the tribes have established resource departments to ad- minister their agricultural, fish and wildlife, forest, range and mineral resources. 'All tribes also have a planning authority to assist in land use plans and policy. The subcontracting tribes currently have the most extensive involvement in surface coal mining. The Crow and Navajo tribes are currently engaged in surface mining. The Three Af- filiated Tribes of Fort Berthold, the Southern Ute Tribe, and the Uintah and Ouray tribes are all contemplating coal production in the near future. The Northern Cheyenne tribe is currently evaluating its ex- isting coal permits and leases. The Crow Indian Tribe reports that coal production and oil and gas activities are currently being conducted on their reservation. The coal leases date back to 1972, and tracts have been leased to five major coal companies. Of these, Westmoreland is currently the only producing lessee. The Crow tribal government has established several agencies which maintain data relevant to surface mine regulation. The major agencies are: the Land Deferral Program; the Crow Land Records Program; the Crow Lands Study Project; the Crow Fish and Game Program; the Crow Re- clamation Office, and the Crow Division of Natural Resources. In addi- tion, the Crow Research Office does basic research on Crow coal re- sources. Within the Crow Tribal Council, three committees which have relevant areas of responsibility have been set up: the Crow Coal Au- thority; the Water Rights Commission, and the Air Quality Commission. 7-17 The tribe possesses several extensive bibliographies which indicate the geologic, hydrologic, land use and socio-economic information for the reservation and the surrounding area. A Geological Survey biblio- graphy contains 38 citations which indicate data (n1 area geology and hydrology. Another bibliography, supplied by the BIA Planning Support Group, indicates the availability of land use, environmental base-line and socioeconomic data. An additional bibliography was prepared for the Crow tribe in 1977 by the Rocky Mountain Research Corporation. This forms part of an analysis of physical resource data to be used in making recommendations for resource development and land use planning. Data on Crow Reservation geology and mineral resources are to be found in reports by the U.S. Geological Survey (most recent surveys: 1973, 1974 and 1977). Included in this body of information are drill log data, structure contour maps and physical and chemical analyses of reservation mineral deposits. Analyses of area coals also have been undertaken by the U.S. Bureau of Mines (1932, 1946, 1951) and the Montana Bureau of Mines and Geology (1946). An airborne radiometric survey of the area was completed by the Atomic Energy Commission in 1952. Data on other minerals -— bentonite, gypsum, lime and lime- stone -- are available in various reports by the Montana Bureau of Mines and Geology (1949 and 1956) and the U. S. Bureau of Mines (1951). The BIA has completed the Phase I report in its comprehensive mineral in- ventory of the reservation. Data on reservation surface and ground-water are available in re- ports by the Mountain Geologic Survey (1960), the Montana Bureau of Mines and Geology (1963), the U. S. Geologic Survey (1973) and several environmental assessments. 7-18 Land use and related data have been compiled for various environ- mental base-line and impact studies, which are cited in the Planning Support Group bibliography. In addition, the impact studies contain data on wildlife populations, vegetation, and socioeconomic groupings. Specific data on soils and range resources are available in studies completed by the Bureau of Indian Affairs (1971). The Crow Tribe's Physical Resource Data Base Report outlines the major sources of information which are used by the tribe, and describes the working relationship established with each source. It also denotes each of the relevant tribal organizations which are responsible for parts of the tribe's physical resource data base. The addendum to the report identifies in greater detail the contents of the tribe's data base. Fort Berthold The Three Affiliated Tribes of the Fort Berthold Reservation report that oil and gas production is currently taking place. The tribes possess coal reserves which have not yet been developed. A tribal government task force has created an Office of Natural Resources and Energy Development (ONRED) to manage the tribe's natural resources. The Fort Berthold Tribes possess an extensive resource data base. Their report lists available information concerning the reservation's water resources, land use, soils, mineral inventories and demographic statistics. The report also identifies gaps in the tribe's data base which are important for regulation of surface mining, and it includes an extensive bibliography. 7-19 The tribes possess extensive strippable lignite reserves, and have known desposits of other valuable minerals: construction aggregate: clay; salt; potash; and leonardite. The aggregates and clay can be surface mined; the salt and potash deposits are deep and necessitate solution mining processes. The tribe's resource data base for water quantity is extensive and derives from USGS reports and monitoring. The available information concerning water quality is limited, however, and has only been col- lected from three points on the reservation. A general ground-water outlook is available for the reservation, but site specific data are needed. The soils of the reservation have been typed and mapped. However, analysis of soil characteristics, such as engineering qualities and irrigability, remains to In; done. The major mineral resource in- ventory data for the reservation has been assembled by the BIA in its Phase I Mineral Inventory Program report, BIA Report 40. This report does not cover the Homestead Area of the reservation. Navajo The Navajo Tribe is the largest Indian tribe in both enrollment and land area. The tribe owns large reserves of coal, oil and gas, and ur- anium, all of which are in production at this time. The Tribal Council makes all resource development decisions. In its deliberations, it is supported by a number of agencies, commissions and committees. The Division of Internal Affairs for the tribe contains the Land Administration Department, which administers the use of tribal lands, and the Department of Natural Resources, which administers the tribe's fish and wildlife, range, forest and water resources. These offices maintain the relevant data for their areas of responsibility. 7-20 The Division of Community Services is responsible for community planning and water and sanitation planning and for maintaining data in these areas. The Mineral Department of the tribal Economic Development Division identifies the quantity and quality of energy reserves for potential development, and monitors development operations. The Navajo Environmental Protection Commission conducts air and water quality nmmitoring and is in the process of develOping a tribal pollution code. The Navajo water Commission reviews the quantity and quality of Navajo water resources; this Commission is also responsible for develOping water resource policy. The Navajo Tax Commission keeps production and royalty information from udneral leases. All of these agencies can draw on the tribe's in-house cartographic and computer facilities in compiling and maintaining data bases. Northern Cheyenne The Northern Cheyenne Tribe reports that it has estimated coal reserves in excess of 20 billion tons. However, the tribe has disputed the validity of coal leases and permits issued by the BIA during the late 1960's and early 1970's, and the lease situation is still un- resolved. The Secretary of the Interior suspended the leases on June 4, 1974, but no definitive action, such as cancellation of the leases, has been taken. The tribe is involved in a legislative effort aimed at resolving the disputed coal permits and leases. The tribe reports that it possesses numerous reports dealing with various aspects and evaluations of the geology of the reservation and surrounding areas. A number of USGS bulletins (1929, 1930, 1932, 1935, 1959 and 1976) have reported on the Sheridan, Ashland, Forsyth and Birney-Broadus coal fields and on the quality and reserves of strippable 7 - 21 coal deposits. A report by the U.S. Bureau of Mines (1967) provides additional data (Hi the reservation's mineral resource potential. The Montana Bureau of Mines and Geology has issued reports on the quality and reserves of selected deposits which are on the reservation (1973) and on oil and gas deposits (1960). A 1971 report by the American Association of Petroleum Geologists provides data on the geology and potential of area petroleum reserves. The Bureau of Indian Affairs Phase I report of the comprehensive mineral inventory, BIA-3 (1975), provides extensive information on the status of mineral resources on the reservation. The BIA also completed, in 1973, a technical assessment of coal permits on the reservation. Water resource data for the reservation are available in a USGS Atlas published in 1973, which covers the Northern Cheyenne reservation and adjacent area. Water quality data have been compiled by the Nor- thern Cheyenne Research Project for an EPA "208" water quality program. In addition, two detailed reports have been prepared by the staff of the Northern Cheyenne Research Project staff on the hydrologic and hydro- geologic impacts of potential coal strip mining (1978, 1979). Land resource data are also available from a number of reports. In 1977, the Research Project compiled overlays for the reservation with USGS 1:24.000 quadrangles. Land area and use data were prepared for the BLA in 1974. Soils data are available from a 1976 soil survey of the reservation. Range and agricultural resource data are currently being inventoried. Data on timber resources have been prepared for the BIA (1977). Vegetation mapping and ethnobotanical studies have been prepared under contract to the Bureau of Indian Affairs by local uni- versities and the Montana State Historical Society. The U. S. 7 - 22 Environmental Protection Agency, the U. S. Fish and Wildlife Service and the Montana Fish and Game Department have all compiled data on reserva- tion fish and wildlife population. The Northern Cheyenne Reservation has been included in a number of regional environmental impact state- ments and socioeconomic analyses, which have generated considerable information on the area's atmospheric, economic and demographic charac- teristics. Southern Ute The Southern Ute Tribe reports varying production levels of reser- vation coal, oil, and natural gas over the last 100 years. This has provided the impetus for a number of resource reports. The tribe possesses six reports on its mineral resources that have been completed by the U. S. Geologial Survey (1971), the Bureau of Indian Affairs (1976), the New Mexico Bureau of Mines and Mineral Re- sources (1973, 1975 and 1978) and the U. S. Bureau of Mines (1975). These reports provide data and evaluations of the geologic formations which underlie reservation lands, calculations of strippable coal re- serves and the water requirements for coal utilization on the Southern Ute reservation. The tribe also possesses mineral resources maps pre— pared by USGS and BIA, as well as drill hole maps produced by Sunedco. The oil and gas data were first compiled by USGS and BIA in 1950 and revised in 1978. USGS maps prepared in 1972 and 1974 on the geology in general and on uranium deposits specifically are available at a scale of 1:250,000. A USGS fuel resources map prepared in 1954 is drawn to a scale of l:62,500. 7 - 23 Water-related information include data on the quantity and quality of principal rivers entering the Southern Ute Reservation (USGS Water Resources Division, 1975), availability and quantity of groundwater for the reservation (USGS, 1977) and water quality (USGS, 1976). Municipal and industrial water use estimates and projections for 1974 to 2020 have been prepared by Kirchner Associates (1976). Available land resources data include information on reservation forest stand conditions (prepared for BIA, 1978 as part of a determina- tion of timber development. potential). 'A. soil and range inventory accompanied by an interpretive report and map atlas was prepared by the BIA (1966). Data are available for soil range groups, range conditions classes, tree canopy density classes, soil permeability, slope erosion classes and climate zones. A Colorado state funded "208" water quality management report (1978) contains data on reservation watercourses and annualxsediment yields. In addition, some limited data on tribal arable lands are included in the Southern Ute comprehensive plans (1974). The tribe also has an arable lands map drawn at a scale of 1 inch to 3000 feet. The reservation's archaeological resources have been surveyed generally by the University of Colorado (1970, 1971), and the construction of the Animas-LaPlata project has prompted additional studies by the" Bureau of Reclamation (1976, 1978) pertaining to ar- chaeology. Other resource data which are relevant to the administration of the Surface Mining Act are production data for mining activities in the general area (1977), and air quality and climatological data (Colorado State Department of Health, 1976).' Data on area temperatures and pre- cipitation are available in Park Service reports for Mesa Verde. 7 - 24 A; 111:}, 1516! 4'... 1510a .. ,.- 8 I .H“"" JCCJ L53" Tribal officials currently use the available data in natural re- source planning and management and in economic development efforts. The principal agencies with responsibilities in these areas are the tribe's Natural Resources Division, the Planning Office, the Economic DevelOp- ment Office and the BIA's Forestry, Land Operations, and Realty Divis- ions. Unitah and Ouray Oil and gas production on the Uintah and Ouray Reservation has been carried on since the 19508. The tribe reports that it has an estimated 50 million tons of coal reserves and is interested in developing these reserves. The tribe also owns limited oil shale reserves which could be develOped in conjunction with reserves on lands adjacent to the re- servation. In addition, the tribe has measurable phosphate reserves. The Ute Tribe's Division of Resources administers the tribe's grazing, timber, agricultural and water resources as well as energy and mineral resources through its appropriate subordinated departments, in co- ordination with the BIA agency office. The Ute Tribe has a research facility, the Ute Research Laboratory, that is funded by grants and contracts from federal agencies and private companies. Currently, the lab is conducting an air quality monitoring program in the Four Corners Region for the Environmental Protection Agency. The lab also provides geochemical analysis, agricultural test- ing, and water quality testing. Its capabilities include emission and infrared spectroscopy, gas chromatography and sample preparation and analysis. The state of Utah has assisted these endeavors through its sponsorship of a manpower development program, which helped train and staff the project. 7 - 25 The tribe also has a land use planning authority, the Master Plan- ning Commission, which includes as members the Director of Resources, the EDA planner and other BIA and tribal personnel. The tribe's available data has recently been supplemented by a set of maps (prepared by Meiiji Resource Consultants) which update informa- tion on ownership of surface and mineral rights, and depict the location of oil, gas, coal, oil shale and phosphate deposits on tribal lands. General land records are maintained by the BIA Agency Realty Office, and supplemented by county land records. The Bureau of Mines and BIA are currently working with Meiiji Consultants on the development of a de- tailed minerals inventory for the reservation. The BIA has completed Phases I and II of the Minerals Inventory; Phase III has been proposed for the next fiscal year. SUMMARY REPORT OF THE EIGHTEEN AFFECTED TRIBES The 18 non-subcontracting tribes included in this study, who are considered potential coal-developing tribes, were surveyed by telephone interviews with respect to their existing resource data base. The survey sought four basic items of information: (1) the spec- ialized departments, offices or agencies have been established to handle natural and mineral resources; (2) the resources these. departments manage; (3) the extent of past, present and future mineral develOpment, and (4) the type of studies, surveys or reports which have been done on their respective reservations. The majority of the tribes have established agencies to study the tribe's natural resources and potential development. However, most of 7 - 26 these agencies have areas of responsibility which extend beyond de- velopment of natural resources and are concerned with overall economic planning and development. Two tribes maintain resource data for plan- ning within general natural resource agencies; one tribe gave responsi- bility for resource planning and data maintenance to its environmental water quality office; and four tribes organized resource data within land use agencies. Most tribes have general planning Offices, which are responsible for resource data compilation and maintenance as well. Only eight tribes indicated that mineral or oil and gas development had taken place on their reservations in the past. Four tribes have some type of on-going develOpment, and six tribes have definite plans for future mineral development. Many of the tribes interviewed ex- pressed concern over the absence of complete and up-to-date mineral surveys of their lands, which, of course, is a prerequisite to any development decisions. All of the tribes indicated a need for addi- tional, more detailed studies of their resources to more adequately assess their economic development potential. Over half the tribes were interested in beginning their own resource surveys. The most commonly available type of report seems to be the BIA Mineral Inventory Studies (Phase I, II and III studies). CONCLUS ION All tribes have, to some extent, develOped a physical resource data base and information system to support their resource planning and management efforts. The extent of the data coverage and the sophis- tication of the in-house information systems varies among tribes. The availability of information pertaining to surface coal mining and its 7-27 effects is related to the extent of mineral resource development activ— ity experienced by each tribe. The extent of systemization varies with the needs of the tribal staffs utilizing the information. The appended reports of the subcontract tribes show that extensive information is available on the physical resources of each reservation. Data and analysis exist on each reservation's geology, hydrology, soils, land use, ecology and other physical environmental attributes. In many cases, these data are dispersed among the agencies which have responsi- bility for the planning and management of specific resources, and are not synthesized in.z1 single system. However, the operation of a cen- tralized and computerized research data system on one reservation clearly demonstrates a tribal capability to manage such information with the same level of sophistication as other governmental entities. P.L. 95-87 calls for the federal government to assist surface coal mine regulatory authorities in assembling the physical resource data and analyses necessary to carry out the provisions of the Act. It would therefore seem incumbent upon the federal government to extend similar assistance to the coal-owning tribes which establish regulatory' au- thorities under the Act, when it is amended. 7 - 28 CHAPTER 8 SPECIAL LAND STATUS CHAPTER 8 SPECIAL LAND STATUS Introduction The purpose of this Chapter is to identify those lands, to the extent possible, which may have special or uncertain land status under the provisions of P.L. 95-87. "Indian lands," for the purposes of mining regulation under SMCRA, are defined as "all lands, including mineral interests, within the exterior boundaries of any Federal Indian Reservation," (notwithstanding the issuance of any patent, and including rights-of-way), 5112 "all lands including mineral interests held in trust for or supervised by an Indian tribe" (Section 701, Part 9). CERT has consulted with the 25 affected coal—owning Indian tribes and has requested that they identify examples of areas which may be of special or uncertain land status in relationship to these provisions of the Surface Mining Act. Separate reports, describing or identifying lands of possible special status, have been developed by each of the subcontracting tribes. These reports and additional related materials, are presented in CERT's full report, Special Land Status (CERT, April 1979). A brief summary-overview of these reports, is presented below. Other examples of possible special status lands, in addition to those identified in the tribal reports, might include the following: non-treaty aboriginal lands, checkerboard areas outside the exterior boundaries of the reservation, restricted lands, and dependent Indian communities. It should be emphasized that nothing in this report should be construed as a legal interpretation of tribal land status. Such inter— pretations and analyses can only be done on a tribe by tribe basis by qualified attorneys. CROW INDIAN RESERVATION SPECIAL LAND STATUS REPORT The Crow Special Status Lands Report focuses on the Crow ceded area in which there is a producing coal mine operated by Westmoreland Coal Company. The Crow Tribe has been actively involved in litigation over the ceded area's status. In the tribe's report, the nature of the Crow ceded area is described and various legal and administrative actions pursued by the tribe are outlined. The Crow Tribe ceded 1,137,500 acres of land to the federal govern- ment in the "Agreement of April 27, 1904." The undisposed portion of the ceded land was restored to the tribe in the Act of May 19, 1958. In restoring these lands to the tribe, the lands were to be placed in trust and to be considered as "added to and make part of the existing reserva- tions for such Tribe or Tribes." The tribe has been in dispute with the State of Montana over which has jurisdiction in the ceded area. The state and tribe have been in dispute over the taxation of the coal produced and over the beneficiary of the abandoned unned lands fund collected under P.L. 95-87 from the ceded area. The tribe's actions in this dispute are described in the tribe's report. FORT BERTHOLD RESERVATION SPECIAL LAND STATUS REPORT The Fort Berthold Reservation submitted a narrative report and supporting maps defining ownership classifications of tribal and al- lotted lands. This report should assist the Solicitor's Office in identifying lands of special or uncertain status. The report also gives a comprehensive assessment of the tribes' coal reserves and mineral ownership status. The report identifies and describes in considerable detail several specific types of land status, including the Homestead Area, the Taking Area, and acquired lands. The Homestead Area was opened to homesteading by the Act of June 1, 1910, 36 Stat. 455. The tribe sought a definitive ruling as to the status of the area and won a court decision in 1972 in the Federal Appeals Court which affirmed the tribe's contention that the Homestead Act had no bearing on the status of the area and that the "Homestead Area" is and always has been a part of the reservation. The Taking Area comprises an area in which the federal government took land for the Lake Sakakawea Reservoir. This included the area ad- jacent to the lakeshore, which is now administered by the Bureau of Land Management. The taking also included the mineral interests. The tribe has also received a contract from the Farmers Home Admin- istration of the U. S. Department of Agriculture to allow it to purchase lands for individuals. The tribe has concentrated its purchases on non-Indian or allottee—held lands within the reservation's boundaries. In the future, however, the tribe may purchase lands outside the reser- vation's boundaries. NORTHERN CHEYENNE RESERVATION SPECIAL LAND STATUS REPORT The Northern Cheyenne Tribe has indicated that they currently have no lands which could be recognized as having special or questionable status under the definitions for Indian lands provided in P.L. 95-87. However, the tribe has listed several categories of potential special status lands. These include possible future land acquisitions by the tribe by' purchase, exchange, or' claim. settlement. Specific examples of current tribal activities in each of these areas are dis- cussed in the report. SOUTHERN UTE SPECIAL LAND STATUS REPORT The Southern Ute Tribe identified one area of tribal lands that might be of special or uncertain. status. However, this area, the Archuleta Mesa, does not contain known coal reserves. The tribe acquired the Archuleta Mesa in 1962 in exchange for lands lost due to the Navajo Dam Project. The tribe received 2,837 acres on the eastern side of Archuleta Mesa from the Bureau of Land Management. An additional 160 acres was purchased from a private land owner. Both the BLM and the private land owner retained the mineral rights. The area could be considered as having special or uncertain status because it lies outside the exterior boundaries of the reservation. The importance of these lands to coal development is not currently signi— ficant, however, because no known mineral deposits are located on the property. UINTAH AND OURAY RESERVATION SPECIAL LAND STATUS REPORT The Uintah and Ouray Reservation has submitted a two-part report. The first part of the report consists of a series of land status maps to aid "the Solicitor's Office in identifying special status lands. The second part deals with the Red Creek Coal Mine lease which is located on a tract of land called the Forest Service Tract. The Uintah and Ouray Tribes have identified the "Forest Service Tract" as one area of possible special or uncertain status. It is in the northwest portion of the reservation and contains approximately 13,511 acres. The area is within the original reservation boundaries created by Executive Order of October 3, 1861. The land was transferred from the tribe to the public domain through various allotments and land cessions. In 1956, the area was added to the Uintah National Forest, and was administered by the United States Forest Service of the Depart- ment of Agriculture. The mineral interests were restored to the tribe at the same time, and placed in trust. In 1966, the Forest Service exchanged that land for land owned by the State of Utah, and surface ownership is now held by the state. In 1941, while these lands were still in the public domain, a 200 acre mining lease was granted by the Bureau of Land Management to the Red Creek Coal Company. The lease has subsequently changed. hands several times; only an estimated 1000 tons of coal have been removed to date. This deposit is a 27 foot bituminous coal seam that is steeply dipping in some places, making it difficult to mine. Several coal mining companies have continued to express interest in developing the area; however, mining activities have not yet been resumed. The tribe is currently attempting to persuade the present leaseholder to relin- quish the lease. The tribe feels this should be done because the pre- sent leaseholder's failure to develop the mine is depriving the tribe of royalty-income. The "Forest Service Tract" is considered to be of special status because the State of Utah, which owns the surface, has assumed juris- diction over mining in the area. The tribe, however, may have legiti- mate rights to jurisdiction, according to the definition of Indian lands given in P.L. 95—87 which includes as Indian Lands ". . . all lands including mineral interests held in trust . . ." (Section 701, Part 9). For further information, see the tribe's report entitled "Red Creek Coal Lease History," in CERT, Special Land Status (April 1979). The tribe currently is trying to negotiate a compact with the State of Utah concerning tribal rights to water, hunting, fishing, and other jurisdictional matters. The tribe's contention is that Acts of Congress that subsequently reduced the tribe's land holdings, creating a checker- board pattern of land ownership, did not vacate the original reservation boundary. The tribe is seeking a compact to enumerate its rights within the original reservation boundaries. The state legislature has proposed bills supporting the compact but none have been enacted. The tribe may therefore initiate court action; hearings are scheduled to begin late in 1979. If the compact is upheld in court, the tribe could claim that the original reservation boundaries have been accepted as the "exterior reservation boundaries." This could allow the tribe to seek control over mining in all areas within the original reservation boundaries under the portion of the P. L. 95-87 definition of Indian lands as " . . . all lands, including 'mineral interests, within the exterior boundaries of any Federal Indian Reservation, notwithstanding the issu- ance of any patents and including rights of way . . ." (Section 701, Part 9). SECTION III ALTERNATIVE MODELS AND TRIBAL RECOMMENDATIONS FOR SURFACE MINING CONTROL AND RECLAMATION ON INDIAN LANDS SECTION III ALTERNATIVE MODELS AND TRIBAL RECOMMENDATIONS FOR SURFACE MINING CONTROL AND RECLAMATION ON INDIAN LANDS The Surface Mining Control and Reclamation Act gives states the authority to regulate surface coal mining on state lands in accordance with regulatory programs which meet the requirements of the Act. The Act also requires the Department of the Interior, after conducting a study in which Indian tribes may participate, to submit legislation to Congress which would enable the tribes to elect to assume full regula- tory authority over surface mining on Indian lands in a manner con- sistent with the purposes of the Act. The current study represents a significant effort by Indian tribes affected by the regulation of surface coalmining to analyze existing requirements for approved regulatory programs, to evaluate these re- quirements in relationship to the reservation regulatory setting, to develop and examine alternative models for the regulation of mining on Indian lands, and to make Specific recommendations for legislative action. It is the culmination of many hours of work, including dis- cussion, data gathering, analysis, and workshops carried out by the 25 affected tribes and the Council of Energy Resource Tribes. In Sections I and II of this study, the regulatory program require- ments of the 1977 Act and the regulatory setting on Indian lands were discussed. In Section III, which follows, we consider' alternative methods for surface mining control and reclamation on Indian lands and present tribal recommendations for a regulatory scheme under new legis- lation. The first chapter of this section, Chapter Nine, sets out a range of alternative models and provides a framework for tribal analysis of surface mining control and reclamation issues in relationship to the Indian Lands Study. Chapter Ten focuses on various practical factors, such as staffing needs and costs, which are relevant to an evaluation of the program models and to the formulation of legislative recom- mendations. Chapter Eleven analyzes a number of special policy issues relating to Indian lands. Chapter Twelve presents an overview of the tribes' application of this analysis in relationship to their specific regulatory setting, and concludes with a set of tribal recommendations for future legislation on surface mining control and reclamation on Indian lands. III-2 CHAPTER 9 ALTERNATIVE MODELS: AN ANALYTICAL FRAMEWORK FOR TRIBAL EVALUATION OF REGULATORY OPTIONS ON INDIAN LANDS CHAPTER 9 ALTERNATIVE MODELS: AN ANALYTICAL FRAMEWORK FOR TRIBAL EVALUATION OF REGULATORY OPTIONS ON INDIAN LANDS In this Chapter, various alternative models for the regulation of surface mining and reclamation on Indian lands are discussed. These alternative models were designed to provide an analytical framework for the tribal evaluation of regulatory options on Indian lands, conforming in part with proposals previously generated by the tribes. They were developed to present a broad range of viable regulatory programs for tribal consideration and to provide a common framework for discussion and analysis. While there are many possible models for regulatory programs on Indian lands, this analysis will focus on the following: 1. The State Model - This model involves the requirements, dis- cussed in Part I, which a state must meet to have an approved regulatory program; and 2. Alternative Models for Indian Lands under New Legislation - The alternative models for regulatory programs on Indian lands represent a continuum from full tribal control to full federal control, with two intermediate models .for the division of functions or the joint per- formance of some functions. These models represent the major options in this range. It is possible to use a combination of them. In addition to the various tribal and/or federal programs, other options, such as an inter-tribal regulatory authority or a tribal/state program, are discussed briefly. These present the same possible con- tinuum as between the tribe and the federal government, but with a different governmental entity. A brief description of the models is given below: a. Full Tribal Model — This model discusses full tribal control of a surface mining regulatory program and explores possible variations from the state model based on special Indian considerations; b. Full Federal Model - This model involves full federal regula- tion of coal strip mining on Indian lands; c. Divided Tribal/Federal Model - Under this model, the tribe would perform some regulatory functions while the federal government would perform others; d. Joint Tribal/Federal Model - Certain regulatory functions under this model would be shared or performed jointly by the tribe and the federal government; and e. Other Models, including - 1. Inter-tribal Model - This model explores the possible roles of an inter-tribal regulatory authority, and 2. Tribal/State Model - This model discusses the possibility of a divided or joint program between the tribes and the states.’ These models were chosen because they represent a manageable and viable means of discussing program types, they conform in part with proposals already generated by tribes, and they offer a broad arena for comparing and analyzing basic directions which may be open to tribes in regulating surface mining. In evaluating these models, one could conclude that the best pro- gram for Indian lands might be a combination of one or more of these models. For example, a tribe may wish full tribal control of some regulatory functions while performing other functions jointly with the federal government. Similarly, it is possible to phase in models over a period of time. The tribe may wish, for example, to start with a joint tribal-federal program and over several years to phase in a fully tribal program. Each of these models assumes a substantive program with all or some of the regulatory program elements discussed previously in relation to state program requirements. We have delineated eight ‘basic. program elements in order to provide tribal members a convenient and common analytical framework for evaluating proposed models. Briefly, these substantive program elements are as follows: 1. Performance Standards - These are requirements that govern the actual mining and reclamation processes to ensure that they are con- ducted in a manner which is not harmful to the environment or to public health and safety. For example, the Act protects the hydrologic ba- lance, the air quality and the productive capacity of the soil disturbed by requiring a wide range of specifications by the operator in each of these areas. 2. Permit System - Under the Act, a permit is a license to conduct mining, on lands owned or leased by the permittee, which is issued by the government with jurisdiction over the lands. To obtain a permit, very detailed information must be submitted on characteristics of the land and ecology, the operator's legal and financial situation and past history of complying with the law, and the proposed mining and re- clamation operations. If a permit is issued, it must be conditioned on compliance with all applicable laws. Further conditions also may be imposed. 3. Bonding and Insurance Requirements -— To operate a strip mine under the Act, the operator must have not only a permit but also ade- quate bonding and insurance. Bonding is a financial guarantee by the permittee that, if the permittee fails to live up to the terms of the permit, sufficient money will be available to the regulatory authority to reclaim the land. The permittee also is required to carry insurance adequate to cover any personal injuries and property damage which may result from the operation. 4. Inspection and Enforcement - These concepts cover a wide range of the regulatory authority's activities to ensure that the mine is operated in a lawful and environmentally sound manner. The regulatory authority conducts a certain minimum number rof inspections. If a mine is not complying with the law or otherwise poses a hazard to the envir- onment or the public, under the Act, a regulatory authority must have many powers available to require the mine operator to correct the pro- blems. 5. Administrative and Judicial Review - Various legal proceedings may arise from a strip mine's operation and regulation. The regulatory authority may seek to force an operator to comply with the law. The operator may challenge the actions of the regulatory authority. Ad- versely affected individuals may seek relief from both the regulatory authority and the operator. Under the Act, the regulatory authority must have a legal system to deal with these cases. 6. Designation of Lands Unsuitable for Mining - This is a pro- ceeding by which the regulatory authority, on its own or upon petition from an interested individual, may declare land off—limits for mining because it cannot be reclaimed successfully or for certain other rea- 80118. 7. Public Participation in the Regulatory Process - Many rights are granted to citizens to allow them to participate in various stages of the regulatory process, such as intervention rights, access to in- formation and the award of attorney's fees and costs. 8. Miscellaneous Program Elements - This category includes lesser elements of an approved regulatory program, such as the training and certification of blasters, as well as any additional aspects of the program which may not be covered in the seven major program elements defined above. The substantive program areas described above are drawn from the State Model. Variations on all of them are possible for an Indian lands program. While we discuss possible variations only in one of the tribal models, these and other possible variations in the substance of the regulatory program apply equally to all the alternative models. Both the substantive program and the model for allocation of re- gulatory responsibilities should reflect the special circumstances of mining and regulation on tribal lands. Thus, in designing a tribal program, one must focus not only on surface mining and reclamation requirements, but also on tribal needs and tribal capabilities. We turn now to the models themselves. MODEL I: FULL TRIBAL REGULATORY PROGRAM Under this model, the tribe assumes full control of its own regu- latory program. The primary advantage of adopting a full tribal regula— tory program is that the tribe would enjoy complete control over the mining and reclamation activities on its lands. In addition to the tribe's current powers, the tribe could de- signate lands unsuitable for mining and administer a permit system for those lands where mining takes place. Designation would provide a land use planning tool for lands over which the tribe has jurisdiction but which are not tribally owned, and permits may be suspended or revoked for non-compliance. The decisions associated with the designation and permitting processes, moreover, would be based on ample technical in- formation. The tribe also would maintain day-to-day control over operations through its inspection and enforcement powers. A tribal administrative and judicial review system would provide the forum to resolve disputes arising from mining activities. The primary disadvantage of adopting a full tribal regulatory program is the need to commit significant tribal resources to the tasks. The problems associated with full capability, however, probably could be resolved by a combination of a regulatory program designed to the prOper scale of the Operations to be regulated and the availability of federal funding and technical assistance. It is assumed, for this model and all others involving some degree of tribal control, that federal funding and technical assistance will be available. A. Adopting the State Model One such full tribal regulatory program is the State Model program, described in Chapter Two, which could be adopted in its entirety under a new federal statute, with the exclusion of certain aspects which are not applicable to Indian lands. The capability required to implement, administer and enforce such a program, naturally, would be much the same as that required of a state in a comparable situation in terms of size, numbers and types of mines to regulate. These factors are discussed in greater detail in Chapter Ten. B. Variations on the State Model to Suit Indian Needs and Circumstances Under the Full Tribal Regulatory Program model, as well as all models which follow, it is possible and perhaps desirable to vary cer- tain program elements of the state model based on circumstances unique to mining and regulation on Indian lands. Tribal recommendations re- garding variations from the state model are discussed in later chapters. Of the eight program areas: Performance Standards; Permit System; Bonding and Insurance; Inspection and Enforcement; Administrative and Judicial Review; Designation of Lands Unsuitable for Mining; Public Participation; and Miscellaneous, some are more likely to suggest variations from the state model than others. Administrative and Judicial Review and Public Participation are two areas where the unique circumstances of Indian tribes may call for deviations. The Performance Standards and Bonding and Insurance, on the other hand, may be less likely to call for variation. All elements of this and other tribal regulatory program models conceivably could be different than those in the state model program, as long as the program provides for regulatory control and protection of the public and the environment that is In) less stringent than the standards of the Act. Tribes involved in the study were encouraged to propose and eval- uate variations in the program elements delineated above, in conjunction with their analysis of the program models. Two examples of how a tribe might approach the question of program element variations are presented below. It was emphasized that any proposed variation viewed as "less stringent" than the requirements of the Act would require special justi- fication :nui probably Special legislative authorization. [NOTE: CERT does not necessarily recommend the following sample variations. They are presented as samples, for demonstration purposes only. It is hoped that they will provide to tribes concrete examples of ways in which the structural models and the substantive program elements may interact during the consideration of various tribal programs.] 1. Sample Variation #1: Enforcement First, let us consider a sample variation from the state model's enforcement provisions. They are premised on a need to regulate a large number of mines operated by persons with a record of non-compliance with the law and disregard for the environmental and public health and safety consequences of their activities. Thus, the enforcement scheme is premised on the need to regulate a large number of mines, and to impose mandatory and tough sanctions and penalties for violations. This model is perfectly justifiable for state programs in the East, where there are many mines run by many operators, and where there has been a serious problem of lax enforcement. It also makes some sense in the West, although there are fewer mines. The state model may make less sense, however, as a regulatory model for enforcement on some tribal lands. For example, the state model provides for mandatory permit suspension when the regulatory authority finds that the permittee has committed three or more violations of the same or related requirements during three or more inspections of the permit area within a 12—month period. On tribal lands, where the tribal inspection presence is apt to be much greater at a mine than would a state regulatory authority's, permit suspension could occur repeatedly on a small volume of violations without any real enforcement or en— vironmental benefits. As a conceptual matter, possible enforcement approaches might include: ° A state-scale enforcement scheme, with mandatory sanctions, where the tribal situation resembles that of a state, regulating extensive mining by non- tribal entities. A small-scale mandatory enforcement scheme, where fewer mines are regulated. This might entail, for example, a new approach to civil penalties. While civil penalties would remain mandatory, the penal- ties might not be assessed according to the present statutory criteria (history of previous violations, seriousness of the violation, negligence, and good faith abatement of the violation). Rather, civil penalties could be geared to deprive the operator of any economic gain accruing from a series of viola— tions, or some other measure which makes sense and is manageable in :1 small-scale regulatory context. ° A small-scale discretionary enforcement scheme, again where few mines must be regulated. Here, the exercise of sanctions and penalties would be lodged in the discretion of the tribal regulatory authority. 2. Sample Variation #2: Public Participation Another major area which could be affected by unique tribal con-— siderations is the matter of public participation in the tribal regula- tory process. Under the state model, expansive rights are granted to citizens with respect to participation in the development, revision, and enforce- ment of state regulations, programs, and permits. The rationale for this is as follows: "The success or failure of a national coal mining regulation program will depend, to a significant extent, on the role played by citizens in the re- gulatory process. The state regulatory authority or Department of the Interior can employ only so many inspectors, only a limited number of inspections can be made on a regular basis and only a limited amount of information can be required in a permit or bond release application or elected at a hearing. . . . While citizen participation is not and cannot be a substitute for governmental authority, citizen in- volvement in all phases of the regulatory scheme will help ensure that the decisions and actions of the regulatory authority are grounded upon complete and full information. In addition, providing citi- zen access to administrative appellate procedures and the courts is a practical and legitimate method of assuring the regulatory authority's compliance with the requirement of the Act." (S. Rep. 95-128, at 59.) In other words, Congress saw participation as a necessary supple- ment to the efforts of the regulatory authority. Citizens also could monitor the actions of the regulatory authority itself. This makes sense under the state model because (1) state regulatory resources often are stretched thinly to cover many mines and also because (2) many states had demonstrated a lack of will in regulating surface mining. The first of these considerations probably is not applicable to most Indian reservations, given the few mines to be regulated. The second consideration also may not be applicable with respect to the tribes. The relationship of the tribe to its members and resources may be different from that of the state government to its citizens and resources within its borders. 9-10 On the other hand, public participation provisions may be a posi- tive feature for the tribes. The tribes may wish to give their members these various opportunities for direct participation in the regulatory decisions and actions affecting tribal lands. Participation of persons off the reservation also must be con- sidered. There may be adjoining or nearby property owners, for example, with legitimate concerns as to mining control and reclamation on tribal lands. Potential abuse of any public participation rights afforded non-members off reservation probably could be avoided by limiting par- ticipation to those persons with "an interest which is or may be ad- versely affected" by the mining activity. This is often the standard for participation under the existing Act. Moreover, any abuse could be limited where the tribe is the regulatory authority and review functions are performed by tribal courts. Considerations such as these, among others, might be applied to a tribe's analysis of the role of public participation, in each of the following areas: Development, approval, and revision of tribal pro- grams; Permitting and bonding process; Citizen reports, violations and hazards and in- spection requests; Right to accompany the tribal inspector onto the minesite; Right to review of tribal action or inaction; Right to intitiate and to participate in adminis- trative and judicial proceedings; Right to petition for and to participate in the process of designation of lands unsuitable for mining; and 9 - 11 ° Rights of .access to tribal regulatory authority information. The areas discussed above -«- Enforcement and Public Par- ticipation -- are merely two examples of areas where Indian needs could suggest variations from the state model. As noted above, the many possible variations will be further developed in consultation with the tribes. When variations are identified, their impact on the showing of capability required for that program function must be considered. In many instances, program variations will be designed to suit a smaller scale regulatory authority for tribal lands; thus the capability re- quired will not be as great as under the state model. C. Ancillary Programs These programs, i.e., research and education programs and an aban- doned mine reclamation program, are not an integral part of an approved regulatory prOgram. It is assumed, for purposes of this and subsequent models, that even those tribes without an approved regulatory program will wish to participate in existing and new research and education programs. Options in this area also were developed in consultation with the tribes, and are discussed in Chapter Twelve. It is also assumed that each tribe with an approved regulatory program, under any of these models, and with abandoned unreclaimed mines on tribal lands, will wish to participate in the abandoned mine re- clamation program. As currently legislated, the program makes explicit provision for Indian Lands. 9 - 12 MODEL II: FULL FEDERAL REGULATORY PROGRAM Another alternative is full federal regulatory control over mining and reclamation on Indian lands. The model for such a program is the federal program implemented for a state where no state program is sub- mitted, a state program is disapproved, or approval of a state program is withdrawn. (30 CFR 736). The Federal Model is identical to the State Model, except for the following changes: Changes which are necessary or desirable as a result of the state's unique physical conditions; Changes necessary to implement other federal laws imposing duties on the Department of Interior, such as the Endangered Species Act, and Changes to coordinate the review and issuance of strip mine permits under the federal program with any federal, state or local planning or permit process for such operations under other laws, such as the Clean Air Act and the Clean Water Act. With a full federal regulatory program on Indian lands, the tribes would not have to commit any resources to the regulation of surface coal mining and reclamation. On the other hand, the tribes would lose all control over the nature and quality of such regulation, except in exer- cising existing leasing and contracting powers and public participation rights granted under a federal program. The models considered so far, the Full Tribal Regulatory Program and the Full Federal Regulatory Program, represent the opposite ends of the tribal-federal regulatory spectrum. Two intermediate models on the spectrum will now be discussed: the "Divided Tribal-Federal Program Model" and the "Joint Tribal- Federal Model". 9 - 13 MODEL III. DIVIDED TRIBAL/FEDERAL PROGRAM This model contemplates a substantive program like that set forth in the Full Tribal Regulatory Program model above, but with a division of responsibility for the listed functions between the tribe and the Federal government. A discussion of the division of functions, and the pros and cons of tribal or federal responsibility, ensues under each function. Perform- ance standards remain constant as they are not a function. Under all models, there is flexibility to alter performance standards to suit unique physical conditions. Public participation issues are discussed in the context of the function to which they relate. This leaves: (1) Permitting and Bonding, which as part of the same process logically are performed by the same regulatory entity; (2) Inspection and Enforcement; (3) Administrative and Judicial Review, and (4) Designation of Lands Unsuitable for Mining. The need to demonstrate capability, via program submission, remains the same as described previously for each of the functions over which the tribe would assume control. 1. Permitting and Bondipg Under this model, permitting and bonding may be wholly the function of the tribe or wholly the function of the federal government. If the tribe assumes this function, it will enjoy control over the imple- mentation of nuning and reclamation preformance standards on its lands and over the ultimate assurance that the standards will be met and its members' persons and property insured. On the other hand, this part of the regulatory process is most demanding in terms of the need for spec- ialized staff. 9 - 14 It is possible, however, under this model to subdivide the function of permitting and bonding. For example, the federal government could perform the technical functions and make recommendations to the tribe, which would review and make final decisions on the permit application. 2. Inspection and Enforcement Tribal performance of this function would assure day-to-day control over mine operations, including responses, if required, to citizen com? plaints. While not requiring as great a commitment of resources as the permitting and bonding process, inspection and enforcement by the federal government would reduce the tribe's regulatory costs. Adminis- tration of the permitting and bonding system, as well as the adminis- trative and judicial review functions, might provide the tribe with sufficient control over its resources and program. On the other hand, the tribe would be dependent on the diligence of federal inspectors to monitor compliance and to refer matters to the tribal court. Again, it is possible to subdivide the inspection and enforcement functions to balance these interests. For example, the tribal program could require a minimum number of partial and complete federal inspec- tions with referral of matters that do not involve imminent hazards to the tribe for enforcement action. 3. Administrative and Judicial Review As the administrative and judicial review bodies will be the ul- timate arbiters of many disputes, the tribe may wish to assume this function. On the other hand, it may prove difficult or administratively burdensome in certain circumstances to establish an administrative court or judicial system which would meet federal program requirements. 9 - 15 If the federal government assumes judicial review responsibilities, the likely authority would be the U. 8. District Court for the region in which the tribal headquarters or the mine is located. The drawback with this approach is that the U. S. Attorney would have discretion as to whether to prosecute cases, and the tribal viewpoint would not necessar- ily be represented. There are a number of possibilities for subdividing this review function. For example, the tribal court could assume administrative review responsibilities and the federal government could conduct the judicial review proceedings. Note: If federal legislation under which tribal court jurisdiction has been usurped by the states is not amended, then certain tribes may find it necessary to divide this function with the state government. 4. Designation of Lands Unsuitable for Mining Tribes effectively have control already over the designation of tribal lands unsuitable for mining through their' ownership powers. Where there are non-tribally owned mineral interests (e.g., non-Indians' or allottees), however, the designation process may be a useful land-use planning tool for the tribe. Tribal members also may wish to have the right to petition the tribal regulatory authority to set aside certain tribal lands as unsuitable for mining. Such a system requires the development of a large data base and inventory system on which to base evaluation of reclamation feasibility, and it requires significant involvement of specialized staff. Much of the data and many of the personnel, however, also would be useful for other functions which a tribe may wish to undertake as resource owners. 9 - 16 To the extent a tribe believes a designation system would be nec- essary or useful, it could divide the function with the federal govern- ment, relying (n1 federal agencies to perform the technical work while retaining the ultimate authority to decide on designation. 5. Conclusion There are advantages and disadvantages to each of the various program divisions. For example, a tribe which does not wish to commit substantial resources may retain considerable control over its land through its authority as the resource owner and assumption only of administrative and judicial review functions. The division of responsibilities may be accomplished through ap- proval of a partial tribal program and the execution of a tribal/federal cOOperative agreement. The Act, for example, provides for state/federal cooperative agreements whereby a state may agree to regulate mining activities on federal lands within the state according to terms of the agreement. (Sec. 523(c)). MODEL IV: JOINT TRIBAL/FEDERAL PROGRAM We already have looked at models for full tribal or full federal control, and a model where control would be divided between the tribe and the federal government. We turn now to a model of a Joint Tribal/ Federal Program. This model, too, assumes a substantive program such as that set forth in the Full Tribal Model, and its difference is merely in terms of allocation of responsibility. All or some of the functions may be shared, or performed jointly, by the tribe and the federal govern- ment, rather than one or the other having full control over that func- tion. Aspects which tribes may consider in the pros and cons of these joint regulatory programs are discussed under each function. 9 - 17 l. Permitting and Bonding The tribe could share fully or partially its responsibilities for permitting and bonding under this model. The reasons for doing so are the same as those cited above for dividing these responsibilities. The primary advantage of the joint approach is technical assistance from the federal government's permitting and bonding staff with the opportunity for tribal learning and/or input throughout the process. This would be particularly helpful where regulatory programs of different types are phased in, for example, a joint program for three years and then a full tribal program. It also is possible to subdivide this function under the joint model. For example, the tribe could share the technical review process and reserve full control over the decision process. 2. Inspection and Enforcement The same rationale offered above for the sharing of permitting and bonding is applicable here. Inspection and enforcement, however, in- volves more subjective judgments than the permitting and bonding pro- cess. For example, if cessation orders for imminent hazards are part of the tribal regulatory program, there are a number of judgment calls, such as how "imminent" is the hazard, or how soon will the harm occur if the problem goes unresolved? Sharing in such judgments may be dif- ficult. (h: the other hand, inspections could be conducted jointly by the tribe and the federal government, with the tribe reserving full control over enforcement action to be taken. 3. Administrative and Judicial Review It does not seem possible to share administrative and judicial review responsibilities, with the possible exception of establishing a 9 - 18 joint tribal/federal .review commission. This would involve re- linquishing some degree of tribal sovereignty. 4. Designation of Lands Unsuitable for Mining As noted above, under the Divided Tribal/Federal Model, tribes already exercise considerable power in land use planning on tribal lands, which probably should not be shared or relinquished. With respect to non-tribally owned mineral interests under tribal jurisdiction, the designation process is :1 desirable but highly tech- nical and costly feature of a regulatory program. Sharing responsibility for this function with the federal government would have the same advan- tages and disadvantages as those cited above for permitting and bonding. Here, too, the tribe might share the responsibilities for establishing a data base and inventory system, and even the technical review process, while retaining full control over the decision process. 5. Conclusion A Some combinations are more likely than others, such as sharing only the technical aspects of the permitting, bonding and designation pro- cesses. The Joint Tribal/Federal Model would seem to offer several advantages to a tribe whose goal was to phase in greater regulatory control over time. This model may be implemented in much the same manner as the Divid- ed Tribal/Federal Model, i.e., through a complete, approved tribal regulatory program, supplemented by a cooperative agreement with the federal government in certain areas. OTHER ALTERNATIVE MODEL REGULATORY PROGRAMS Again, the initial substantive program is assumed to be that set forth in the Full Tribal Model. 9 - 19 MODEL V. INTER-TRIBAL REGULATORY PROGRAMS Possible allocations of responsibility between tribes and/or an inter-tribal authority are discussed below. Sole Inter-tribal Regulatory Authority Under this model, one inter-tribal regulatory program might func- tion for all Indian lands. The advantage would be a pooling of re- sources. The disadvantage would be each individual tribe's loss of control over the management of its own resources, once a leasing or contracting decision is made. Theoretically, there could be divided or' shared responsibility between such an inter-tribal entity and the federal or state government. There probably would be little need for such an arrangement, however, given the concentration of all tribes' resources. There also could be a more limited inter-tribal regulatory program, involving, for example, only two tribes where a mine crosses tribal boundaries. Historically, there is an example of an inter-tribal re- gulatory program. The Hopi and Navajo created a Joint Commission to regulate the Black Mesa Mine, located in an area disputed by both tribes. While the dispute was litigated, the Joint Commission looked after the economic and reclamation interests of the tribes. Divided or Joint Inter-tribal/tribalgprogram Under this form of the model, the tribe might retain its control while using the greater technical resources of the inter-tribal unit, among other Options. 9-20 MODEL VI: TRIBAL/STATE REGULATORY PROGRAM Tribes, through cooperative agreements with states, could enter into the type of programs discussed above with respect to divided and shared tribal/federal programs. The benefits are the same and require- ments are the same. Such a tribal/state program, however, would involve justifying the state's capability as well as the tribe's and might be hampered in its implementation by sometimes-strained relations between state and tribal governments, which. often. compete for ,jurisdiction. Such a program -- particularly a shared program -- might be in order where a mine is located across a boundary on both state and tribal land. A cOOperative agreement could be implemented for a shared regula- tory authority over dual jurisdiction mines. Full jurisdiction, on the other hand, couLd be granted by cooperative agreement to one adminis- trative authority or the other, based on mutually agreed upon condi- tions. Conclusion We wish to stress again that there are many options in terms of the substantive nature of a tribal program (e.g., what kind of enforcment scheme will there be?) and the allocation of responsibility for carrying out the program (e.g., who will have enforcement responsibility?). We have presented only hypothetical programs to aid the tribes in con- sidering what type of program would best suit their needs. An idea of the options and capability requirements for the various possible substantive programs can be formed by looking at the components of the State Model and Full Tribal Program Model given above. The amount of authority for the program functions which may be delegated to or shared with other governmental entitites is discussed in the other models. 9 - 21 It is important to keep in mind several concepts while considering these alternative models: ° There are many varieties of substantivegprograms that are possible within each of these models. There is the possibility of mixing these models, for example, of sharing .some functions, dividing re- sponsibility for some functions and retaining sole authority for others. ° There is the possibility of _phasing in certain models; for example, going from shared to sole authority over a period of time. Both the substantive program and the allocation of responsibilities should reflect the special circumstances of mining and regulation on tribal lands. Apart from the theoretical advantages and disadvantages of various program Options, other factors are relevant to choosing and refining the apprOpriate regulatory program for Indian lands. These factors include costs and staffing requirements associated with various tribal program models as well as special policy issues relevant to the regulation of coal mining on Indian lands. These special factors are analyzed and discussed in the following two Chapters. 9 - 22 CHAPTER 10 ANALYSIS OF STAFF NEEDS AND ASSOCIATED COSTS FOR TRIBAL REGULATORY PROGRAMS CHAPTER 10 ANALYSIS OF STAFF NEEDS AND ASSOCIATED COSTS TRIBAL REGULZTSRY PROGRAMS IntrOduction The cost associated with mine regulation is one of several factors that tribes may want to consider when evaluating program model options and when making recommendations for legislation. In this chapter staff needs and associated costs are estimated for a hypothetical tribal regulatory program. The costs are estimated from data provided by the Office of Surface Mining and from mining regulatory program operating costs of several western statesctl ASSUMPTIONS AND FORMAT The following cost estimates assume existing state program re- quirements of the Surface Mining Act, and full tribal regulatory au- thority. In addition, the cost estimates are broken out by components of the regulatory process, so that tribes also may use costs and skill needs as factors in their evaluation of various partial regulatory programs. The following costs are estimated on a unit basis, i.e., for one large mine (roughly 5 million tons per year) for one year. Thus, tribes may manipulate these cost estimates to correspond with a wide range of mining scenarios and specific reservation circumstances, by factoring into their calculations projected number of mines, duration of regula- tory effort, intensity of the regulatory effort, etc. A qualitative estimate of how these costs would vary in relationship to these factors is given for each component of the regulatory process. :/ States surveyed include Wyoming, Montana, Utah, New Mexico and Colorado. The components of the regulatory process for which costs have been estimated, and the substantive program elements to which they primarily relate are: (1) Administration (Administrative Review, Public Participation, Miscellaneous) (2) Mining Plan/Permit Review (Performance Standards, Permit System, Bonding and Insurance Requirements) (3) Inspections and Enforcement (4) Designation of Lands Unsuitable for Mining It should be stressed that a great many uncertainties or variables exist which will affect cost estimates and their application to a speci- fic tribal situation. These include such factors as the structure of the tribal regulatory agency and its interface with other ongoing plan- ning and regulatory efforts (tribal or non-tribal), the degree and type of technical assistance available to the tribe, regional variations in pay scales, uncertainties regarding federal funding formulae for tribal programs, possible variations in tribal program requirements from those which currently exist for state programs, and many others. As many of these uncertainties will persist until federal legislation is passed defining more specifically the application of the Surface Mining Act to Indian lands, tribes are urged to exercise caution when evaluating program model options on the basis of cost factors. Analysis of the effect of some of these factors'on actual tribal regulatory program costs will follow the cost estimates provided below. STAFF, SKILL AND COST ESTIMATES 1. Administration Program administration would require basic management skills. The administrator of a tribal mining regulatory program should possess the skills and background which would enable him to: 10 - 2 - coordinate and oversee work in the other pro- gram components (permit review, mine inspection and enforcement, designation of lands unsuit- able, etc.); - manage an office with clerical personnel; - prepare written reports, funding applications, public notices, etc.; - administer public participation. requirements; and - maintain liaison with tribal officials, tribal members, energy company officials, federal regulatory personnel and the general public. Additional skills which would be helpful in the administration of a tribal mining regulatory program would be those related to actual mining operations, legal processes and requirements, bonding and insurance' procedures, or a scientific background related to mine reclamation. OSM's Budget and Finance Office estimates that administrative costs for state programs would be about 15% of total program costs. This percentage would probably be higher for tribal programs, as the overall program Operating costs for most reservations would be lower than for states, while many administrative functions would be required regardless of the program size, and thus they would tend to form a larger per- centage of total costs. A sample budget estimating costs for administration of a tribal regulatory program is provided in Table 10-1. In addition to the salary of an administrator, the budget also provides for a clerk/typist and secretary/bookkeeper. The normal administrative costs of running an of- fice -- tribal and per diem costs, etc. -- are also figured into the costs estimates. Also included in the budget are costs for' a tribal regulatory commission, which might be established to oversee the performance of the 10 - 3 program and its employees, as well as to provide an administrative review function. A tribe might appoint a three to five member com- mission and, according to a specific tribe's practice, pay the com- missioners for the time expended in their official duties. Such a commission probably would be part of a broader natural resources regula- tory effort and, if this were the case, the costs could be shared by the various programs, thus reducing the cost of this function to the mining regulatory effort. 10-4 TABLE 10-1 SAMPLE ANNUAL ADMINISTRATION OPERATING COSTS Low Estimate A. 'Personnel (annual salaries) High Estimate Administrator $20,000. $25,000 Clerk/Typist 7,500 8,500 Secretary/Bookkeeper 7,500 8,500 35,000 42,000 Fringe Benefits/Payroll Costs 7,000 8,400 (estimated at 20%) Total Personnel 42,000 50,400 B. Regulatory Commission 3 - 5 persons/biweekly meetings 10% of time on an annualized basis @ $300 - $500 per meeting x 26 meetings Total Regulatory Commission 3,900 6,500 C. Office and Other A Travel and Per Diem 5,000 5,000 Office Equipment & Supplies (including typewriter rental 2 @ $150/month) 6,400 6,400 Telephone @ $150/month 1,800 1,800 Printing and Publication (including copier @ $200/month) 4,800 4,800 Space Costs (500 square feet/person x 3 x $8 square foot) 12,000 12,000 Miscellaneous 2,000 2,000 Total Office and Other 32,000 32,000 TOTAL POSSIBLE BUDGET $72,900 $88,900 10 - 5 The administrative costs for a tribal mining regulatory program would vary depending on the internal structure of the program as well as its interface with other tribal agencies. For instance, costs and administrative staff needs for mine regulatioh might be reduced if the program were administered in the context of a larger tribal environ- mental protection or natural resources reghlatory agency. This would permit the pooling of technical and administrative personnel, office space, equipment, etc., with other related efforts, such as air and water quality regulatory programs. Administrative costs also would increasetor decrease in relation to the overall scope and size of the tribal regulatory effort, though not as a direct function of the number or size of mines regulated since many administrative activities would remain relatively constant in relation to changes in these factors. 0 2. Permit Review The mining plan and permit review procesp is basically a one-time (or first year) occurrence, although some reviews (e.g., coal explora- tion operations, special mining category permits, permit revisions, and periodic permit renewals) might occur at intervals throughout the mining regulatory process. The staffing needed within this full tribal regulatory program example may include: ° a mining engineer, who would review both the mining plan and the reclamation plan for conformity with the performance standards; at least one environmental specialist and possibly two, who would review and analyze the impacts of mining and reclamation 10 - 6 plans on the land and ecology, including soils, vegetation, hydrology, air quality, fish and wildlife, etc., and periodic access to specialized technical skills, via tribal staff, federal technical assistance or outside consultants. Important variables in the staffing needs and associated costs for the permit review component of a.tribal mining regulatory program in- clude the degree of availability of federal technical assistance, the in-house technical capabilities of the tribe, the range of skills and expertise represented by individuals on the full-time regulatory program staff, and the extent to which outside consultants would be used. To perform their tasks fully and successfully, the mining plan/ permit review staff also must have access to and a thorough understand- ing of a large data base (e.g., ownership information, land maps, sur- rounding land uses, etc.) as well as sufficient environmental base-line data (e.g., soil and vegetative types and capabilities, fish and wild-- life habitat patterns, geology, air and water quality' information, etc.). While some of this information will necessarily be supplied by the mining company requesting the permit, it is likely that considerable work could be involved in reviewing this information for accuracy, in gathering information not submitted by the company in organizing files, records, etc., and then in reviewing the accumulated materials. Cler- ical and research help could therefore be provided by the program's permanent administrative staff, and the program's administrators could oversee the legal and financial (e.g., bonding, insurance, etc.) aspects of the permit review and mining plan approval process. 10 - 7 The Office of Surface Mining has provided data for estimating permit review costs at three levels of complexity, depending on the amount of environmental analysis required for the review. These esti- mates are presented below and summarized in Table 10-2. The cost esti- mates are based on a team approach to completing the review. The staff cost estimates ($38,000 - $45,000 per person) include both salary and support costs. a. Mininnglan Review and Environmental Study This is the simplest and least time-consuming procedure applicable to the least complex actions such as most of the mine plan revisions (new permits) required for existing mines. It is expected -that 14 mine plan reviews and environmental studies can be performed annually by a. seven-person ‘team (including the personnel equivalent of contractor/consultant input). Staff cost has been computed at $38,000 per person per year. 7 x $38,000 9 14 equals the estimated cost per mine for permit review and environmental study. $19,000 Per Mine Mining Plan Review and Environmental Analysis An environmental analysis (EA) is a formal National Environmental Policy Act (NEPA) process somewhat more complex than an environmental study. EA's will be sufficient for most new leases. It is anticipated that 10 mine plan reviews and environmental analyses can be performed annually by a lO-per- son team (including the personnel equivalent of con- 10 - 8 tractor/consultant input). 10 x $38,000 9 10 equals the estimated cost per mine for permit review and EA's. $38 ,000 Per Mine Minipg;Plan Review and Environmental Impact Statement (EIS) Mining plans involving potentially more significant environ- mental impacts will require EIS's. It is expected that 2.5 mine plan reviews/EISLs can be performed annually by a 12-person team (including the personnel equivalent of contractor/consultant in- put). Increased personnel cost ($45,000 reflects the cost to pub- lish the EIS's. 12 x $45,000 9 2.5 equals the estimated cost per mine for permit .§£l§i999 per Mine Permit review costs for specific tribal mining regulatory programs would be a direct function of the number of mines being regulated, and the complexity of the environmental analysis required for each mine. 10-9 ooo.ee~ o~n.m omnqn oun.n o~n.m oma.mm~ omoo swoon oooqsm one owe ome oNN o-.mm use nonomnomnaaaee ooo.e~ oom.e oom.e oom.e oom.« coeds semamuuonam a consumamea ooo.eH~ nu nn nu nu ooo.o-m .m.H.m e amn>me assume m Hm>ma oea.ae cum.m o~m.m o~n.m o~m.m ensues» umoo Hence oea.e owe oNA oNA o~e om~.e uma nonomnumnenae< ooo.e~ connn ocw.e oowqm. oom.e oom.e uaoamouonam a consumamea ooo.mmw un un nu nu ooo.mmw .<.m s smn>me “Hausa N Hm>m4 omenme o~m.m ONnnw o~w.m onqw oamq-a umoo swoon one.e ome oNN owe owe o~m.m nma coaumnomneaaee oooqem oom.e ocw.e oom.e oom.e oom.e ucmamuuonem a eoaoooamca ooo.m~w un nu un un coo.saw .m.m a ama>mx assume a am>m4 aou unauon no mno>o~ mouse on .muooz o>Hn non names mnumom.m so mafia ooo non mumoo auouonswou mafia no nonmanumo m.:mo uncommon sodas onoou may mmamc an“: no no: oumum one one» monouumcoEoo cones ououm may no uoownno nmwoq nonnu man no Hmuocoo homuouu< oumum one Bonn mononoo Hmon < .oonumamnoou oom magmas conuouoHon Hmoo no coaumnswou one uoonnm mnuoouwo cones AmuooEoooao oouonou oomv moonumnowou one mama muoum nonuo no monmoo .amuwouo who no Hm>ouoom one non Hmauoowmo mum cons: ocm oOOOmco wonoo no mmooouo may on one Senna moOHuostou new no muoo < .msmH oumum one oOHOnoo one ucoaoHoan ou ooommn moonumnswou oumum one no mooo < .conumamnoou menses Hmoo oomnuom ocm conumuoHoxo Hmoo oumnowou SOHL3 msmn oumum no hooo < "mwnuocuo< Howog Am zmo OH conmmaanom amuwoum wUZMU< wMOHmn mm Ema: H<:H ZOHHHO wonuooHHoo one mnemoooo< .moonuonswou one mama conuoaonoou one menses new no moonumnow> non moonuoooo HooHEHuo one .nn>no .o>«umuumacHEoo monouoncm .oonuoononuuoo cannon non meowma>ouo wcaoonoow .moonum Iuooo conumamnoou one .moncna .cOHuouoHoxo wonuouacoa ocm wonuooomon .moouomumow nosuo one ooomuomon munnnomnn .mocoo ooomauonuoo non Bowman m wcnononoo one .wcnuoumHOHEom .wonuooeoHoaH .monocowm HoooH one Hmuooom .oumum nosuo new: ooomommn unauon monumcnouoou .moon unauoo mcnmmommo .Eonu won>ouoommno no wcn>ouoom one .aoou wonaon>ou .mconuouooo menses Hmoo oomnuom non ouaapoo oosocon no .oomn>ou .Boo HOn woonumonnoom man>nooom .Eonu wofi>ononmmwo no wcn>ouoom one .Eonu woneon>ou .oonumuoHoxO non noOuOn no moonuo: won>nooom .monmoomum ooomauonuoo one wcnouonco one wcnuoumACHEo< .mmooouo conumownmoo one on conumnnonuumo unnooo I moonuocwnmoo conumonsuou I “won moonwn>ouo nuns moonumnooo wancns Hmoo oomnuom MOn manounomos mocha wcnuocwnmoo .munsuoo one memumouo .moonumnowou Ououm monouonoo one mofimn>mn .monooHo>oo an monumononuumo unnoon HOn manon>oum ”MOn 11—22 moonumnomou ZmO new no moonuoom ou ooxooon muooaoooo nonuo no .muumno BOHn .mconuonuomoo o>nuouumz ZOHHmo mm Ema: He on one: on Han: noHneanownH eHnH .enenm ecu nannas eeHnH>Hnue nonneaeaoon one wanHa .nonuenoanxe no noHneanowna Heonnennenm NwH>Hnoanoe nonneaeaoen one wanHa ecu nn eeemoanae onenm mo eneenennn Henunennw nuennonn one noenfio nenfiewe enoHnoHnneen wnaonowne one wnH3ew>en .wnnnonwnoz AOHVAquH.Hmm .eeunnoeen one menHe> Henneanona>ne nonno one .Heowonoenune .oHnoann .Hennnano .ewHHoHH3 .nefim wnfiwenea now eHnHenonmwn meannewe Heneoem one enenm nuns wnnnanenoo Amvawvefi.nmm . .mwnanee: unannn wnnoaon one eeoHnon unannn wnwnnmnm o AmHVAwVeH.Hmm .eneneeHn wnamunnneo one .manHaexe .wnnnwena o AoAVAwVonm Amfivawven.~mn . .enownoe uneaeunomne one nofinoenenw wnnonaonw .Eenwonn enenw enn nH enownue mo 3efi>en Henowonn one e>HnenueHnwaoe mnnoa>onm onHmn mm Ema: H<=H ZOHHen Hana gonna enneanneneo no .nowew>«o .eenunewe nonuo zne wo nonneunnewno Hennnonnne man I munewe hnouewnwen mnn wo noHneanemno Hennnunnne oeeononn one wnwnewxe man I Aevew.wmn uwnwneowonw ennenu one noHnanoeeo < o wwnwwenw one nonneunnewno .nonnunoonn euewnne one onnonwneonn I ooonoonn on on neon wo onmn I ewennon I AwVAnV uwnnneowonn .nonmewannm Eenwonn ecu nonwe mneem m 0n m ecu now enoHneneno nonneaewomn one wnnnws one nonnenoane .nonnono Ionn Heoo Hennne enn wo menonnm wnnnenxe Eonw ownewne>e wn .nonnuemonw AoVAnv .aenwonn mnonewnwen annennn enn wanno unanen noee now nonnoenenn enenm wo monenvenw one AQVAnv nonemwannw Benwonn ecu wnwoeuenn hwenenoeaaw oownen ecu wnnnno Anw>nnue wnnnwa wnnnewxe wo noannnwnnwno unnnenwoem man wnnzone mes e .eennw>nnoe nonneaewoen Anna ownewnaoo mwwennnfi> oeanewoen mwe>nnue wnnen oenwa hwe>wuoe one unanen neon: ANVASV "one nenn eennn>finoe wnnnne eoewnne one onnonwneonn one nonnenOHQxe wo nenEnn may AmVAnv .mnee» eennn eeonn now nonneaewoen one wnnnns no nonnenewm Ixe now ewesenen no .enonen>en .ennanen now enonneonwnne wo nonnnn one AmVAnv .eneem eennn eeonn wnnnno wnwnna eoewnne no onnonmneonn one nonnenoane weou now oennwanen no oe>onnne eweenoe enH onnenno mno om Aoeennnnoov "mun>nno< wannnz neoo no manenm wuzmo< wmoeMQ mm Ema: H I ”wnHonHonH .meonnomen Heunwxnn wo men oeeononn one wnnnewxe ecu wo nownnfinomeo < enonnoemenn I enonnoe newew I wnnnnnanen I ”wnnonwonn .oeoaxnos aenwonn now enenveoe on Hana newn mnnwwene oemononn won 30: wo nownnnnumeo 4 wnannenn one eunennenxe ooh omnwnven mennnn enonnonnw non I "wanneononn menonewe nonno aonw munewe anonewnwen man on ewnewne>e ene nenn Hennoenen Heonnnoen one Hennoenen nemonn we own oenoenonn man wo noHneneane n< wnnnwenn one eonennenxe now oenwnven mononn enonnunnw ooh "mnnaose .wwenw senwonn oeeononn one wnnnenxe wo ownen hnesanm < .aenmonn enenm enn nH meanno e>en Hafiz gonna menunewe nee3nen mnneaeenwe wnaunonnnw wo anon < o Aoennnnnoov "wnnwwenm one nonneennewno Wuzm0< wMOHmn mm Ema: HHn ooeononn wnnonwonwv Bonezm mno>nm unnoom one ownz one .Eouemm nonne>noeom meonnoownz Henonnez onH .mHHenH wo nonemm Henonnez onH .aonemm ownwom ownwownz Henonnez onH .aonmmm exnem Henonnez one I Anvwm.qon unnnnwa eoneH no mowunowe wenooow aonw eneo ..w.o .no< onn noon: :xnoneonea: one nenn enonnenwneoo onn no nonneanownn moonwonn nw Aevwm.oon .mnonnnnon onn ha oono>oo meone nn nowneaewoon wo anawnnwmeow onn onnanonoo 0n monowe onn moaneno nH nN.qom .eonnnwnneneo wnnzownow onn nnHB aonmxm Anonno>nw one omen eneo e nowo>oo none zonowe anonewnwon onH "ownenwnena eoneq wnnnenMWmo: eonnw onn wo oonnom onn I AZmo Eonw wnnonnw Hennoaownnne wnwanmmev mneox weoefiw an nxon ocn wo noeo now nowona oonoomonn onn I mneox Heoenw nnonnno one nonnn I onew.wm~ "no eneo wnwonwonn .aenwonn onenm onn now nomonn wnnnenono one Hennneo Hennoe onn wo nonnnnnoeoo < ZOHHmQ mm Ema: He eoaooon nenn nowneanownw moonwonn nH Heoo wo mannnm onn one maonooo onn I unoanonn>no onn I moonnoeon oeonn now oneaoo onn I onenm onn wo eoonnomon weoo onn I “no eneo wnHonunfi .nownennanon no nonnenwweoo e wo enoenaw onn wo ennoseeoeme oonwnvon onenonn on monowe mnOneHnwon onn moHneno nH o Aoonnwnnoov “ownenwnmnb eoneq wnunenwneoa wozmo< NMOHmn mm Ema: He ooea on Hwene nannon nonnenoano ne nnonnne on oonnnanne nowneanownn Han enonneunHmmn nHEnom .Heou onn wo eoHnnononn Heoaeenn one HeoHaono onn no nowneanownn enenonnnonn non nnn .nnoanonn>no onn nH onxon ewnennnonon en movmm.eoe nunns nnonnoo Henonfia no eneo wnnonwonn .nonnenwneoo onn wnaonewon nonnesnownw .enonnnnon onn on nonnewon Amvmnvmw.ece nn oonnHEnnm en nenn nonneenownn one oo>nooon one nenn enownnnon onownsou one .oHHnnn onn 0n ownewne>e on Hwenm Anvq.ooe ownennnenn monew wnnnenwneoo now nonmee enonno>nn one omen eneo onenm one 0 owneuwnmn: eonen wnwnenwnmon m~.~me .nonenwom Henooom onn nw oonenwnnn on Hans maenwonn onn no mnonmnooo wee .wnnenou one nonnoonenn cannon now ownewne>e on Haene mononowe Henooow une>onon nonno wo eoeon onn Anvnnvmn.mme one .onnnwnonnwe wo enenonoom onn .emm wo nonennmnnwao< onn wo m3on> onn wo eonnoo .wnwenoo onmw.wme one nonnoonenn onwnnn now ownewwe>e on Hwenm ennosaoo nonnnns wwe wo eonnoo . .Heeononn onn mnnnnwanne eonowe onenm Anmvnmvmn.NmN man no meannno onmnn man one .munnno Hennamo man .nonomnnn neaonemm man no monnno one AHVAeVHw.Nm~ onn ne nonew>on now ownewne>e on Hwene noneenanne aenwonn onn wo nxon anew one 11-28 oneneHu mew om Zmo oe nonemnannm Eenwonm eozmu< emoema mo nmeomqqoo on one enonenuoo onn one .eoononownoo Heanownn mne wo eonooon “nonneowwnne oeeoHon onon on» wo eonnoo ooon>onn one eonnnen oonoowwe Anvww.eom .onon onn wo oeeowon wnnneonvon now onnoooonn onn wo nnen ee enonenmson nw nonneonannn now ouanon ooHnenoo e onenonn neon uneoanne one .3eH onenm on unenennn oHHw unannn no non on nonna Aennoaonnnaom AmVAevmn.ome newm nonneaewoomv no< onn wo mom nonnoom noon: ooononowon nonneanownn one .Annoanonn>no onn on onxon eHHennnonon one nonna Heoo onn wo mnnonnoo Hennoaono no Henonwa wnnonemon nonneanownn unooxov oonfla on on Heoo onn wo eonnnononn Heoaeenn one HeoHaono onn ANVAevmw.owe no eneo ene .ewweonwnoone monouon cannon onn wo nnen ooea non one wennnooawnou anon on Hwene nowneonwnne onn nn nonneanownn nfiennou monnaee Hnoe emnnwnaee onoo ewanon neon maeoe Heoo Anvnmvmn.omn "no «new .nnneonnnomnm .oonoowwe eHoeno>oe on hen nonnaxnmononnn ne nun: mnoenon on ownewne>e ooea on Hwene nonneuawnne onn nn nonneanownn nfiennoo "enonnnonoo wnHBoHHow onn on noonnne .enoo one noonenw on unannn onn now ownewne>e oer on Aevm~.owe HHene nonneonanne unanon nonneaeHoon one wnnnna onownaoo e wo enoo Hwnw n .oneon on on ennnnnnonno ne one ounnon nnwa nonneanownn wo oeeowon onn wnweonno one wnwneonvon enoenon onn nnon ooow>onn men mnnnonnne enoneanmon onn .nHanon noHnenoano onn now ooHHw nenn noenon onn wo ennwnn o>Hnnnonaoo onn on wnnnewon eneo Henonenww no Henonoaaoo oowown>wnn on no enonooe ooenn ennoonoo on oeneoon Hennnoowwnoo on nonneanownn onn nenn oonwanonoo men ennnonnne mnonewnwon onn .ooeowoeno on non nonneanownn nenn .wnwnnna nn .ooneonvon men noenon e onemn Mo Dmeumqqoo one mn.owe nonnoom oomv enHanon nonneaewoon one wnnnnn on owneonnnne mnonnnonoo onn I Ao>one en.ome nonnoom oomv ennnnon nonnenownxo on onneonwnne enonnnonoo onn I Anvo~.oqw "enonnwonoo wnwzowwow onn on noonnne unannn onn on ownewne>e on Hwene ennnonnne enonennwon onn en oonoHo>oo nOnneanownn nonno one .mHeHnonea nofinoonenn .ennonon .monooon awe wo eonnoo o zowema mo Qmeomudoo