Louis Washinawatok v. Midwest Regional Director, BIA, 48 IBIA 214 (2009)

Docket Number:IBIA 07-20-A

INTERIOR BOARD OF INDIAN APPEALS Louis Washinawatok v. Midwest Regional Director, Bureau of Indian Affairs 48 IBIA 214 (01/29/2009)

United States Department of the Interior



Order Affirming Decision in Part and Reversing in Part

Docket No. IBIA 07-20-A

January 29, 2009

Louis Washinawatok (Appellant), seeks review of an August 24, 2006, decision (Decision) of the Midwest Regional Director, Bureau of Indian Affairs (Regional Director; BIA), affirming a determination of the Deputy Regional Director - Trust Services, Midwest Region (Deputy Regional Director), that Appellant committed timber trespass on lands in the SE¼ SE¼, Section 30, T. 28 N., R. 16 E., located on the Reservation of the Menominee Indian Tribe of Wisconsin (MITW or Tribe; Reservation), and assessing damages, interest, and costs. The Regional Director affirmed the finding of trespass but reduced the total amount of the penalty to $449.96, including $45.74 for costs of the investigation. The Board of Indian Appeals (Board) affirms the conclusion that Appellant committed a trespass, but reverses the assessment of damages because the record does not support the conclusion that the highest stumpage value obtainable for the timber at issue was $97.88.1 Background I. NIFRMA and Its Implementing Regulations Governing Trespass In 1990, Congress enacted the National Indian Forest Resources Management Act (NIFRMA), 25 U.S.C. § 3101 et seq., to enhance protection for Indian forest

"Stumpage value" is defined in Departmental regulations as "the value of a forest product prior to extraction from Indian forest land." 25 C.F.R. § 163.1 (definitions).

lands.2 At the direction of NIFRMA, 25 U.S.C. § 3118, the Secretary of the Interior (Secretary) promulgated implementing regulations at 25 C.F.R. Part 163. These rules require approval of the Secretary for any removal or harvesting of forest products from Indian forest lands. 25 C.F.R. § 163.26(a). The regulations contain authority for "free-use harvesting" of forest products for personal use, subject to the consent of the relevant Indian owners and the Secretary. 25 C.F.R. § 163.27. NIFRMA expressly addressed the "threat to Indian forest lands arising from trespass and unauthorized harvesting of Indian forest land resources." 25 U.S.C. § 3101. The statute required the Secretary to "establish civil penalties for the commission of forest trespass." 25 U.S.C. § 3106. Section 3103 defines "trespass" as "the act of illegally removing forest products from, or illegally damaging forest products on, forest lands." 25 U.S.C. § 3103(8). The NIFRMA regulations define "trespass" as the removal or damage of forest products "except when [the act is] authorized by law and applicable federal or tribal regulations." 25 C.F.R. § 163.1. "Forest products" are defined as marketable products extracted from Indian forests, such as: Timber; timber products, including lumber, lath, crating, ties, bolts, logs, pulpwood, fuelwood, posts, poles, and split products; bark; Christmas trees, stays, branches, firewood, berries, mosses, pinyon nuts, roots, acorns, syrups, wild rice, mushrooms, and herbs; other marketable material; and gravel which is extracted from, and utilized on, Indian forest land. 25 C.F.R. § 163.1. Section 163.29 of the regulations establishes that "[t]respassers will be liable for civil penalties and damages to the enforcement agency and the beneficial Indian owners, and will be subject to prosecution for acts of trespass." Penalties include, inter alia, treble damages "based on the highest stumpage value obtainable from the raw materials involved," rehabilitation and restoration costs, enforcement costs, and interest. 25 C.F.R. § 163.29(a)(3)(i)-(iv). NIFRMA authorizes the Secretary to enter into contracts, cooperative agreements, and grants with tribes, pursuant to Pub. L. No. 93-638, the Indian Self-Determination Act, 25 U.S.C. §§ 450f - 450n, for the accomplishment of "forest land management activities on Indian forest land." 25 U.S.C. § 3104(a). "Forest land management activities" include

"Indian forest land" is defined as "Indian land, including commercial, non-commercial, productive and non-productive timberland and woodland, that are considered chiefly valuable for the production of forest products . . . ." 25 C.F.R. § 163.1.

"assessment of damage caused by forest trespass . . . including field examination and survey, damage appraisal, investigation assistance, and report, demand letter, and testimony preparation . . . ." 25 U.S.C. § 3103(4)(F). The statute and regulations authorize tribes to exercise "concurrent civil jurisdiction" to enforce NIFRMA and implementing regulations, in which case the Department shall, "at the request of the tribe, defer to tribal prosecutions of forest trespass cases." 25 U.S.C. § 3106(c). To obtain concurrent jurisdiction to pursue trespass action, a Tribe must, inter alia, adopt and enforce rules promulgated by the Secretary to enforce trespass. Id.; 25 C.F.R. § 163.29(j). II. The MITW Contract For Implementation of NIFRMA. BIA and the Tribe entered into a Forest Management Contract to, among other things, "set out the responsibilities of the BIA and MITW" to implement management of tribal forest lands. Statement of Work, MITW Forest Management Contract (MITW Contract), at 1.3 The MITW Contract expressly addresses the responsibilities of BIA and the Tribe for trespass. The Secretary's responsibilities include prevention of trespass, "the writing of trespass reports," and the "fixing and collection of trespass damages." Id. at 7. The Secretary committed to maintain and supervise a "Trust Forester position at MITW," whose role includes ensuring that trespass reports are written and submitted timely, and that proper procedures are followed in a trespass case. Id. The Tribe committed, among other things, to investigate trespasses "and prepare and submit trespass report[s] to the BIA for collection." Id. at 11. It could submit a resolution for concurrent jurisdiction over trespass cases "when desired," and proceed in such case either in Tribal court or defer to the BIA for prosecution. Id. BIA committed to review trespass reports and make damage collections. There appears to be no dispute that the Tribe did not seek or receive approval for concurrent jurisdiction over NIFRMA trespass cases. Therefore, its obligation with respect to trespass includes investigation of trespass, preparation of reports, and submission of such reports to BIA. BIA's obligation includes the same, and also prosecution of trespass cases. In addition, the MITW Contract addressed "free use" of timber. The Tribe committed to develop a free use permit policy, and issue and administer free use timber cutting permits for tribal lands. MITW Contract at 8. BIA was to review and approve the Tribe's free use policy. Id. at 12. In 1997, the Tribe enacted a Tribal Ordinance governing free use permits issued by the Tribe. Tribal Ordinance 81-08 sections 4 and 5.3

Section 4.01 specifies that any tribal member is eligible to apply for a permit to remove timber for fuelwood or other purposes, whether for personal or commercial use. Section 5.01 states that the Tribe "shall issue a numbered permit to salvage or cut timber in an amount not to exceed 25 cords of fuelwood per year for personal use from dead and down timber." (Emphasis in original). The record includes copies of tribal free use permits and thus it appears that BIA approved the Tribe's free use policy and permits. 25 C.F.R. § 163.27. III. Events Leading to the Trespass Investigation and Decision. This case involves an alleged trespass on February 8, 2000, by Appellant Louis Washinawatok, also known as Needge White. On that date, at approximately 3:00 p.m., Menominee Tribal Conservation Warden Donald L. Waukechon discovered nine logs of dead wood that he suspected were illegally cut and removed from the surrounding forest in the area of South Line Road on the Reservation. Menominee Tribal Warden's Report, Statement of Donald L. Waukechon 1285, Feb. 25, 2000 (2000 Waukechon Report).4 He identified the wood as nine harvested white pine logs. Id. The South Line Road is near Appellant's residence. Id. Waukechon contacted Menominee Tribal Conservation Warden Walter Cox and Menominee Tribal Enterprises (MTE) Assistant Forester Michael Richter to assist in the investigation.5 Waukechon showed Cox and Richter the logs. Id. They followed drag marks to where the logs apparently were cut. Id. The three officers investigated the area to assess it for damages to the surrounding forest but "Mike [Richter] was satisfied that no damage was done." Id. The three investigators encountered Scott White, Appellant's son, who stated that the logs might be his father's. Id. Waukechon noted that ribbons marked other trees in the area. Id. On February 25, 2000, Waukechon issued a tribal Uniform Civil Citation citing Appellant with cutting, removing, and transporting timber in violation of Tribal Ordinance 81-08 section 7.01.6 This section addresses "violations" of the ordinance and states: "Whoever unlawfully cuts, removes, transports, carries away, conceals, or converts to personal use any timber unlawfully cut, or any dead and fallen timber upon any land subject4

to the jurisdiction of the Tribe, which is managed by MTE, shall be fined not more than $1,000 or imprisoned not more than 180 days, or both." Id.7 The citation required Washinawatok to appear in Tribal Court on March 20, 2000, and established a "deposit" of $250 and court costs of $20. Apparently, the Tribal Court set the hearing date in error; for this reason it dismissed the citation without...

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