Jefferson County, Oregon, Board of Commissioners v. Northwest Regional Director, 47 IBIA 187 (2008)

CourtInterior Board of Indian Appeals

INTERIOR BOARD OF INDIAN APPEALS Jefferson County, Oregon, Board of Commissioners v. Northwest Regional Director, Bureau of Indian Affairs 47 IBIA 187 (09/02/2008) Related Board case: 40 IBIA 52

United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

JEFFERSON COUNTY, OREGON, BOARD OF COMMISSIONERS, Appellant, v. NORTHWEST REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS, Appellee.

Order Vacating and Remanding Decision

Docket No. IBIA 06-45-A

September 2, 2008

The Jefferson County, Oregon, Board of Commissioners (the County) appeals from a January 9, 2006, decision (Decision) of the Northwest Regional Director, Bureau of Indian Affairs (Regional Director; BIA), approving the acceptance in trust by the United States of land comprising 197 acres in Jefferson County, Oregon, for the Confederated Tribes of the Warms Springs Reservation (Tribe; Reservation). Acknowledging that the precise boundary of the Reservation in relation to the property, known as the Eyerly property, has not been determined, the Regional Director concluded that the Reservation and the Eyerly property "are in extremely close proximity," Decision at 5, and applied the terms of 25 C.F.R. § 151.10, which establishes criteria that must be considered by the Secretary of the Interior (Secretary), through BIA as his delegate, for acquisitions of land in trust that are contiguous to a reservation. Assuming that only the criteria in 25 C.F.R. § 151.10 apply to this acquisition, we vacate the decision for failure to consider the County's arguments with respect to one factor. But because the record reveals that a dispute exists over whether the Eyerly property is contiguous to the Reservation and provides no basis upon which to resolve that question, we vacate and remand the decision either for resolution of that dispute or for application of 25 C.F.R. § 151.11, which applies to trust acquisitions of land noncontiguous to a tribe's reservation. Statutory and Regulatory Background Section 5 of the Indian Reorganization Act, 25 U.S.C. § 465, authorizes the Secretary to acquire land for Indians in his discretion. Rules governing such acquisitions

allow land to be taken into trust for a tribe (1) When the property is located within the exterior boundaries of the tribe's reservation or adjacent thereto, or within a tribal consolidation area; or (2) When the tribe already owns an interest in the land; or (3) When the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing. 25 C.F.R. § 151.3(a).1 In considering requests to take land into trust on behalf of a tribe, the Secretary must evaluate any acquisition, for lands "on-reservation" or "off-reservation," in accordance with the standards set forth in 25 C.F.R. § 150.10(a)-(c) and (e)-(h). 25 C.F.R. § 151.11(a). If the acquisition is for "off-reservation" lands, however, the regulations impose additional considerations. 25 C.F.R. § 151.11(b) and (c). In either case, "the Secretary will notify the state and local governments having regulatory jurisdiction over the land to be acquired unless the acquisition is mandated by legislation," and the state and local governments have a 30-day period in which to provide comments. Id. at §§ 151.10(a) and 151.11(d). In evaluating requests to acquire land located "within or contiguous to an Indian reservation," the Secretary need consider only the criteria set forth in 25 C.F.R. § 151.10(a) through (h). Relevant here, these criteria are: (a) The existence of statutory authority for the acquisition and any limitations contained in such authority; (b) The need of the individual Indian or the tribe for additional land; (c) The purposes for which the land will be used; (d) . . . [2]1

(e) If the land to be acquired is in unrestricted fee status, the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls; (f) Jurisdictional problems and potential conflicts of land use which may arise; and (g) If the land to be acquired is in fee status, whether the [BIA] is equipped to discharge the additional responsibilities resulting from the acquisition of the land in trust status[; and] (h) The extent to which the applicant has provided information that allows the Secretary to comply with 516 DM 6, appendix 4, National Environmental Policy Act Revised Implementing Procedures, and 602 DM 2, Land Acquisitions: Hazardous Substances Determinations. . . . In evaluating tribal requests for acquisitions of land in trust status, "when the land is located outside of and noncontiguous to the tribe's reservation," section 151.11(a) requires the Secretary to consider all of the above-cited criteria. In addition, however, the Secretary must also consider the following: (b) The location of the land relative to state boundaries, and its distance from the boundaries of the tribe's reservation, shall be considered as follows: as the distance between the tribe's reservation and the land to be acquired increases, the Secretary shall give greater scrutiny to the tribe's justification of anticipated benefits from the acquisition. The Secretary shall give greater weight to the concerns raised pursuant to paragraph (d) of this section. (c) Where land is being acquired for business purposes, the tribe shall provide a plan which specifies the anticipated economic benefits associated with the proposed use. 25 C.F.R. § 151.11. It is clear from this regulatory structure that the comments of state and local governments with respect to acquisitions of noncontiguous lands, as articulated in the comment process described in subsection (d), must be given increasing "weight" and "scrutiny" as the distance between a tribe's reservation and the subject land increases. The United States Court of Appeals for the First Circuit recently described this rule in Carcieri v. Kempthorne, 497 F.3d 15, 24 (1st Cir. 2007), cert. granted in part, 128 S.Ct. 1443, 170 L.Ed.2d 274 (Feb. 25, 2008): "Generally, the farther from a reservation the land is, the

greater the scrutiny the Secretary gives to the justification of anticipated benefits from the acquisition." Factual Background The Warm Springs Reservation occupies approximately 21,088 acres of land in north-central Oregon. The Reservation was established by the terms of the Treaty with the Tribes of Middle Oregon, June 25, 1855, 12 Stat. 963 (1855 Treaty). The southern portion of the Reservation is found inside the boundaries of Jefferson County and is north of the Metolius River and its current and former riverbed. For the locations at issue in this appeal, the Metolius River is now a part of Lake Billy Chinook, a man-made lake created as a part of a hydroelectric project which includes a set of three dams on the Deschutes, Crooked, and Metolius Rivers: Round Butte Dam, Pelton Dam, and the Pelton Reregulating Dam. See generally Supplemental Administrative Record (AR) Document D.2, Draft Pelton Round Butte Comprehensive Management Plan, October 1998, at 7. The dams are part of the Pelton-Round Butte Hydroelectric Project (Project), currently owned jointly by the Tribe and by the Portland General Electric Company (Portland GE). AR Document 10, Letter from Warm Springs Tribal Council to Regional Director, BIA, Mar. 21, 2005, at 2. The Project was originally licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act, sometime in the 1950s, to a non-tribal entity. The Tribe, through Warm Springs Power Enterprises, purchased a one-third interest in the Project effective January 1, 2002. According to a Portland GE website, the Project comprises approximately 19,300 acres, with about 4,700 acres occupied by reservoirs, including Lake Billy Chinook. Lake Billy Chinook is part of a multi-jurisdictional recreation area comprising, inter alia, the Cove Palisades State Park managed by the Oregon Parks and Recreation Department (OPRD). The OPRD website for Lake Billy Chinook indicates that the recreation area that comprises the lake is managed by, inter alia, OPRD, Portland GE, the Tribe, the County, and the U.S. Forest Service, U.S. Department of Agriculture. The Portland GE website identifies an agreement for the management of the Project signed by 22 Federal, State, local, Tribal, and private entities. By Tribal Resolution No. 8059, on July 3, 1990, the Tribe approved and authorized the purchase of fee property owned by Jack V. Eyerly and located on the south bank of Lake Billy Chinook at the confluence of the Metolius River and the lake. AR Document 6, Resolution No. 10002, at 1. This property comprises a total of 197 acres in two parcels. The parcels are described as follows:

Parcel I:

Township 11 South, Range 11 East, Willamette Meridian, Jefferson County, Oregon, section 18, lots 1,2, 4 and 5, and the southeast quarter of the southwest quarter. Township 11 South, Range 11 East, Willamette Meridian, Jefferson County, Oregon, section 19, lot 6 and the northwest quarter of the northeast quarter.

Parcel II:

Decision at 1; AR Document 6, Resolution No. 10002, at 1.3 No map in the record definitively identifies the parcels. Separate maps of portions of sections 18 and 19 appear in the Administrative Record as Document 7; the table of contents indicates that these maps are "Exhibit B" to the decision. See Decision, at 6 (list of exhibits including Exhibit B ("Location Map")). The scales of the two maps differ, however, and the precise locations and extent of the lots are difficult to follow; the parcels are not marked, and the quarter sections are unclear. We do not know where or to what extent the tracts in the two sections converge. Moreover, it appears from these maps that the Metolius River flows into Lake Billy Chinook at the western edge of section 19. Thus, the exact extent to which Parcel 2 (section 19)...

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