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Woods Wisdom

Notes From All Over

By: Jack G. Peterson and James R. Erickson

The Tribal Forest Protection Act (TFPA) and Forest Stewardship Contracting are among the most beneficial authorizations ever given to American Indian Tribes by the United States Congress. These dual actions open the door for Indian Tribes to protect Indian lands from wild fires, insects, diseases, erosion, floods, and other threats—that originate on adjacent or nearby federal lands—by giving the Tribes the power to initiate projects to manage and reduce those threats on the adjacent federal lands. This is a profound and positive shift in Federal policy.

The Intertribal Timber Council (ITC) has launched the TFPA with real gusto in a productive partnership with the Bureau of Land Management, US Forest Service and Bureau of Indian Affairs.

Soon after the passage of TFPA, ITC and tribal representatives participated in a training workshop on stewardship contracting sponsored by the Bureau of Land Management in Post Falls, Idaho. From this initial meeting came the strategy to sponsor similar training workshops specifically for tribes. Initially two workshops were planned—for Spokane, Washington (October 12, 2004) and Albuquerque, New Mexico (October 14, 2004). These initial workshops spurred additional interest for workshops resulting in sessions in Rapid City, South Dakota; Eureka, California; and Alpine, California. Each workshop seemed to gain momentum with increased participation and tribes expressing sincere interest in engaging in projects with neighboring federal agencies.

Effective fuels reduction adjacent to the lands of the Viejas Band in the mountains west of Alpine, California. The devastating fires of the autumn of 2003 overran the lands of several Southern California tribes and bands, but spared the Kumeyaay people.

These workshops provided the basic intent and procedures for Forest Stewardship Contracting under the President’s Healthy Forest Initiative (HFI). Participants received a basic understanding of federal processes; and the regulations and procedures for participating in forest stewardship contracts. Significant ideas emerged from the early workshops as Tribal foresters, and Tribal fuels and fire managers, raised tough questions and posed sound ideas, offered alternative approaches, and suggested possible projects. During the workshops, the BLM and USFS promulgated their draft implementing policies. The Federal Agency policies now are finalized, and BLM and USFS are working closely with Tribes throughout the United States, encouraging them to propose TFPA projects.

Several TFPA projects now are on the threshold of execution through cooperative agreement or contracting under the new TFPA—notably the Mescalero Apache Tribe working with the Lincoln National Forest and New Mexico BLM; Colville Confederated Tribes and Colville National Forest; Warm Springs Confederated Tribes, Oregon BLM and several adjacent National Forests; and the Shoshone-Paiute Tribes and Shoshone-Bannock Tribes and Idaho BLM. Other Tribally initiated projects are in various stages of planning and implementation.

Several other joint Tribal Federal Agency projects already are under way through existing authorities (cooperative agreements, assistance agreements, interagency agreements, etc.) that mirror the intent and purpose of the TFPA.

For example, the Bureau of Land Management is collaborating with several Indian tribes in treating woodlands in New Mexico to reduce hazardous fuels, suppress wildfires and restore healthy, productive woodland and rangeland ecosystems. These projects, which are being accomplished primarily through assistance agreements, are also providing economic benefits to the tribes through local employment and making wood products available to tribal members to be used in special forest products or resold as fuel wood. Key to success is that real benefits are derived by both parties.

Examples of this collaboration include:

Assistance agreement with Cochiti Pueblo at the Kasha-Katuwe Tent Rocks National Monument and fuels reduction.

Assistance agreement with Ramah Navajo tribe on fuels reduction and woodland products on Candy Kitchen project.

Project planning on Forest Health restoration project with Zuni Pueblo Project planning, using Tribal Forests Protection Act for fuels reduction and possible stewardship contracting with Mescalero Apache Tribe

Use of Santa Clara Pueblo and Taos Pueblo personnel to conduct prescribed burns on Taos Field Office BLM lands.

Use of Taos Pueblo personnel to perform fuels treatment projects on BLM lands adjacent to tribal lands. Use of the Eight Northern Pueblo “pool” for seasonal firefighters at Taos BLM.

Before we go too far, it is vital to understand the core purpose, history, and intent of TFPA as developed by Congress. Key to our memory is that TFPA was borne out of the terrible destruction and lessons learned from the wild fires and loss of life as wild fires ripped across ten reservations in Southern California in the fall of 2003. Both ITC and the Southern California Tribes, together with the California Congressional Delegation, moved the TFPA through Congress, hopefully to prevent a repeat of the fall of 2003. Following is a summary of the TFPA: Summary and Analysis TFPA OF 2004 - Public Law 108-278, signed July 22, 2004

Summary:

(Top) At the Viejas Conference, Jack Peterson emphasizes that the Tribal Forest Protection Act is “the first best chance for Tribes to control their natural resources destiny.” Jack has traveled throughout the West to jump-start the Tribal Forest Protection Act for the Intertribal Timber Council, several Indian tribes, and the Bureau of Land Management. He is the BLM’s point man in the West for the TFPA. (Bottom) The National Forest Service’s Darci Birmingham fields questions regarding the Forest Service’s policy for implementing the TFPA. Darci is the Service’s key Washington contact for launching the Act.

The TFPA authorizes the Secretaries of Agriculture and Interior to give special consideration to land management projects proposed by Indian Tribes on Federal Lands (Public Lands or National Forest Lands)
bordering or adjacent to Indian Trust Lands—in order to protect the Indian Trust Lands or communities from fire, disease, or other threats from Federal Lands.

Analysis:
1) To qualify, the Indian Trust Land (either tribal or allotted) must be in Trust or Restricted status and
a) Be forested or have a grass, brush, or other vegetative cover, or
b) Be burned-over.
2) The Indian Tribe will propose projects to take place on Federal Lands (National Forest System or Public Lands) that
a) Border or are adjacent to Indian Trust Land. “Adjacent” is not defined and will be determined project by project.
b) Pose a fire, disease, or other threat to the Indian Trust Land or Community. “Community” is not defined (“communi ties at risk” may give some guidance)
c) Are not subject to some other conflicting agreement or contract.
d) Involve a feature or circumstance unique to the proposing tribe. “Features or circumstances” can be related to treaties, or cultural, archaeological, historic, biological, or geographical factors, etc.
3) Projects proposed by an Indian Tribe are authorized under Stewardship Contracting or “such other authority as appropriate.”
a) Other authorities might include “for pay” projects, such as fuels reduction.
b) Proposed projects must be to “protect” the Indian Trust Land from “threats” from Federal Lands — and land restoration activities (i.e., post-fire).
c) The size of a proposed project or its distance from Indian Trust Land is not limited by the law except that it must bear a justifiable relationship with protecting the Indian Trust Land and involve circumstances or features related to the affected Tribal Lands.
d) The scope of tribally proposed projects includes “land management activities” “Land management activities” are not defined in the Act and are very broadly interpreted.
4) To initiate a project, an Indian Tribe formally submits a project proposal and a request to enter into an agreement or contract with the local field office of the BLM or Forest Service.
a) Agency cooperation in developing and considering tribal proposals is expected.
b) Congress will track the agencies’ acceptance and implementation of Act.
5) Within 120 days of a Tribe submitting a request to enter into an agreement or contract, the BLM or Forest Service will issue a public notice of the intent of entering into an agreement or contract with the Tribe, and whether environmental review is necessary—or has been completed.
a) There are no time lines in the TFPA for completing environmental or other reviews.
b) The TFPA does not provide funding for environmental review.
c) There are no time lines for review of an agreement or contract document.
d) Contents of a proposed agreement or contract are to be guided by the authority invoked (Stewardship or other authority).
6) When the Forest Service or BLM evaluate and consider entering into tribal agreements or contracts, the agencies are expected to:
a) Give special consideration to tribal factors including status of the tribe and the land, the federal trust, treaty and other rights, cultural, traditional, and historic affiliations, indigenous knowledge and skills, landscape and vegetation features, coordination between the tribe and the agencies, and tribal access to the land.
b) Recognize that the TFPA establishes a strong presumption that tribally proposed projects are to be awarded to the proposing tribe and not to other entities.
7) If the Secretary (Forest Service or BLM) denies a Tribal proposal request to enter into an agreement or contract, the agency will issue a notice of denial to the tribe that
a) Identifies specific factors in, and reasons for, the denial,
b) Identifies corrective courses of action, and
c) Proposes consultation with the tribe on how to protect the threatened Indian Trust Land and Tribal interests on the federal lands.
8) Nothing in the TFPA is to reduce or affect Tribes’ ability to otherwise take part in Stewardship Contracting or other contracting, i.e. fuels reduction, construction, etc.
9) The TFPA requires the Secretaries of Interior and Agriculture to report to Congress in four years regarding implementation of the Act.

Note:
The TFPA is discretionary (except the report to Congress). The Secretaries of Agriculture and Interior are not required to perform any of the TFPA’s authorized activities. However, the long established Trust responsibilities of the Federal Government and the clear Congressional Intent of the Act provide an otherwise clear mandate to the Secretaries. Indian Tribes fully expect the TFPA to be implemented in a timely manner.

In June 2005, ITC sponsored a “Stewardship Contracting” workshop at its 29th Annual Timber Symposium in Visalia, California. This workshop brought together examples of successful contracts and tribes sharing their strategies to engage in this authority under the TFPA. Examples were shared of successful projects with the Maidu Cultural Development Council and the Lassen National Forest in California where tribal ecological knowledge was implemented to address forest health issues. Examples also were presented of how the Mescalero Apache Tribe and the Warm Springs Tribes are developing strategies to address forest health issues on reservations and neighboring lands (federal and private), maintain and expand local enterprises to generate local economies, provide employment opportunities for local residents, reduce hazard fuels and establish local collaborative teams that can work constructively together. While the challenges are still many, the opportunities are even greater.

From the symposium the question arises—Where do we go from here?

The symposium findings and recommendations suggest that tribes must now engage their federal partners in developing and sharing successful projects.

Tribes need to develop clear project objectives, define strategies to meet objectives, develop the workforce to carryout objectives, analyze an implementation cost proposal, develop project budget, submit proposals to the federal agencies, negotiate contract terms, and implement the final contract.

Federal agencies must engage the tribes by doing their homework–identifying areas in need of treatment, completing necessary NEPA clearances, working with tribes to identify projects and negotiating best value contract terms.

Jack G. Peterson, Senior Program Manager, Tribal Forest Protection Act, BLM, Boise, Idaho
James R. Erickson, Fire Technical Specialist, Intertribal Timber Council