The Honorable Gale Norton, Secretary
United States Department of the Interior
1849 C Street NW
Washington, DC 20240
VIA FIRST CLASS MAIL
Re: Bison Range Initiative
Dear Secretary Norton:
Public
Employees for Environmental Responsibility (PEER) has reason to believe
that the U.S. Department of Interior is violating the law with regard
to its planned action to turn operations and management responsibilities
of the National Bison Range and affiliated National Wildlife Refuges
(NWRs) to the Confederated Salish and Kootenai Tribes (CSKT).
PEER
recognizes that many tribal governments have skilled natural resources
staff and a commitment to resource conservation. Our concern is not with
tribal governments but with a proposal that divests the federal
government of its interest and oversight of federal lands.
In this letter, PEER raises three concerns:
1) The plan as outlined in public statements by Paul Hoffman, the Deputy Assistant Secretary for Fish Wildlife & Parks appears in conflict with the Indian Self-Determination Act;
2) The proposed course of action announced by Mr. Hoffman would violate the NationalEnvironmental Policy Act;and
3) No consideration appears to have been given to a range of potential adverse environmental and management impacts and what, if any, preventive or curative steps
the Department will be able or intends to take to obviate damage to the resource.
PEER
is a national nonprofit organization made up of local, state, and
federal resource professionals whose mission is to promote open, ethical
and accountable governmental administration of environmental laws and
regulations throughout the United States.
This letter reflects
concerns and questions raised to us by current and retired Fish and
Wildlife Service employees who are serving or have served in every
region of the country.
The National Bison
Range is 18,800 acres of Palouse Prairie, forests, wetlands and streams.
Elk, deer, pronghorn, black bear and coyote share the land with between
350 and 500 bison. More than 200 species of birds, including eagles,
hawks, and meadowlarks, make their home on the Range.
All Americans have an interest in the survival of this unique ecosystem.
Congress
understood these values when it established the National Wildlife
Refuge System (NWRS) one hundred years ago. The proposed action to turn
operational and management functions over to non-governmental control
rolls back a century of history, and undermines the values and legal
obligations of the NWRS.
The Indian Self-Determination Act
In
1975, Congress passed P.L. 93-638, the Indian Self-Determination and
Education Assistance Act. The intent was to allow recognized tribes to
assume some functions that had been managed by USDOI agencies,
particularly the Bureau of Indian Affairs (BIA).
In
the fall of 1994, Congress again addressed the subject and passed
amendments to P.L. 93-638. The result was a number of significant
changes. Now known as P.L. 103-413, the Indian Self-Determination Act
Amendments of 1994. Title IV of these amendments contained a number of
provisions that had the affect of substantially changing the focus of
the original Act with regard to USDOI lands and functions other than
those of BIA.
With regard to the National
Wildlife Refuge System (NWRS), the most striking change or addition was
Sec. 403 (B.) (c.), "Additional Activities." This had the effect of
allowing the Secretary and tribes to "also include other programs,
services, functions, or portions thereof, administered by the Secretary
(USDI) which are aware of special geographic, historical, or cultural
significance to the participating Indian Tribe requesting a compact."
Consequently,
in a debate entered into the Congressional record on October 7, 1994,
Senator John McCain (AZ) entered Disclaimer Section K, which ensured
that "inherently federal responsibilities" would not be transferred.
This
Disclaimer was added primarily at the request of the International
Association of State Fish and Wildlife Agencies, who feared
fragmentation of cooperative and other Fish and Wildlife Programs.
For
a decade, no serious efforts were made to implement the compacting of
administrative, biological, visitor services or other functions to
tribes under the Act, with the understanding that these duties were
"inherently federal" in nature, as per the law. [25 USCS s. 458cc (k)]
Today, your office has reinterpreted these long-understood principals.
The
tribes have requested that they be allowed to "operate the full range
of activities provided at the National Bison Range, which is all
programs, services, activities and functions provided at the NBR and
ancillary property.
(2) To make information on the environmental consequences available to the public.
The
cornerstone of NEPA's procedural protections is the Environmental
Impact Statement ("EIS"), a detailed statement that discusses: the
environmental
impact of the proposed action,
any adverse environmental effects that cannot be avoided should the
proposal be implemented, alternatives to the proposed action, the
relationship between local short-term uses of man's environment and the
maintenance and enhancement of long-term productivity,
and any irreversible and irretrievable commitments of resources that
would be involved in the proposed action should it be implemented. 42
U.S.C. 4332 (C)
This point is that a wholesale turnover of federal land management to any private group, corporation or sovereign nation is a matter of significant national interest.
Beyond Bison Range
Last
spring, your office re-interpreted Indian Self-Determination Act by
publishing a list of programs eligible in FY 2003 for Annual Funding
Agreements for possible self-governance in the Federal Register (Vol.
67/No. 66/ April 5, 2002). This notice included all 16 Alaskan NWRs,
15 additional refuges in the lower 48 states, and 9 National Fish
Hatcheries in 8 states. The notice also listed 34 national park units in
15 states.
Earlier this year, the
Department of Interior announced that the National Bison Range and its
affiliates, Ninepipe and Pablo National Wildlife Refuges, would become
the test case to transfer management functions CSKT.
Yet, in
proceeding on this test case, USDOI has abdicated responsibility for
addressing a range of adverse environmental and management effects:
Some
CSKT leaders have announced an intention to displace all NWRS staff and
replace them with tribal members or with tribally operated contractors.
Does USDOI intend to enter into agreements that would authorize hiring
discrimination on the basis of race or ethnicity on a federal facility?
The
precedent set at the National Bison Range has deep implications for the
entire NWRS. Using the full authority Mr. Hoffman claims to turn over
complete operational and management control of more than 30 units of a
national system of lands to a collection of sovereign nations with
exceedingly diverse cultural assets, economic needs, leadership
capabilities, agendas, relative wealth, and other important factors will
indeed diminish much of what makes the NWRS a "system."
Such
an action taken on the centenary of the NWRS system would threaten the
promises made at the recent celebrations of this milestone to keep the
system intact and preserve its promise to future generations of all
Americans.
Also left unaddressed are the
impacts upon the hundreds of local refuge staff across the United
States, families that have been the glue that holds these programs
together, year after year, as managers come and go. It now looks as if
scarce federal refuge dollars will be given to tribes to hire
contractors to fulfill the tasks that are currently being expertly
administered by federal employees.
The influx of contractor
positions into NWRS will also aggravate current operations and
maintenance backlogs. As you know, there never have been clear
delineations of tasks on NWRs. Because of historic under-funding and
under-staffing, administrators lead tours, ORPs create
budgets, administrative assistants drive tractors, and maintenance
mechanics do everything that DoD facilities would require fifteen
different job titles.
The NWRS has a
current operations and maintenance backlog of more than 1.6 billion
dollars. It will not get better in these austere times. Mr. Hoffman has
incorrectly stated that these compacts would provide more money for
refuges. This ignores the reality of how refuges are funded, and
threatens to make worse an already bad situation.
In
short, your subordinates have made clear that the management transfer
of the National Bison Range will not be an isolated case. As such, an
even greater level of scrutiny is warranted that has been provided by
Mr. Hoffman's ad hoc and very limited approach to this matter.
At
the very least, PEER would request that the Department of Interior
delineate its policy on what functions it considers to be "inherently
federal" and thus not subject to negotiation. We would also suggest that
if the Interior Department intends to use this action as a test case
for a series of such transfers, nothing short of a full Environmental
Impact Statement, including national hearings around the country, is
needed to meet the requirements of NEPA for this major federal action.
Thank you for you attention to this matter.