Lummi Nation v. Northwest Regional Director, 44 IBIA 47 (2007)

Docket Number:IBIA 05-12-A

Order Dismissing Docket No. IBIA 04-161-A and Order Affirming Docket No. IBIA 05-12-A in Part, Vacating in Part, and Remanding for Further Proceedings Docket Nos. IBIA 04-161-A 05-12-A January 11, 2007

The Lummi Nation (Nation) has filed two appeals from a determination by the Northwest Regional Director (Regional Director), Bureau of Indian Affairs (BIA) that the Nation is liable for timber trespass and damages therefor on several parcels located on the Ben Mainstagin Allotment, No. 59 (Allotment No. 59), located on the Nation's Reservation in the State of Washington. Initially, the Regional Director issued a notice of trespass and an estimate of damages on August 3, 2004, which the Nation appealed. Docket No. IBIA 04-161-A. One month later, on September 9, 2004, the Acting Northwest Regional Director 1/ reiterated the August 3 finding of trespass and finalized BIA's demand for damages, interest and costs in the amount of $289,874.73. The Nation's second appeal is from this latter decision. Docket No. IBIA 05-12-A. The trespass determination was based on the issuance of invalid timber cutting permits by a tribal employee purporting to authorize logging on certain parcels on Allotment No. 59 without BIA approval.

For the reasons stated below, the Interior Board of Indian Appeals (Board) dismisses the appeal from the Regional Director's August 3, 2004 decision as moot. As to the

Appellant,

NORTHWEST REGIONAL DIRECTOR,

1/ In this decision, we will refer to the Regional Director and the Acting Regional Director as "Regional Director."

September 9, 2004 decision, it is affirmed in part, vacated in part, and remanded for further proceedings consistent with this decision. 2/

Factual Background

  1. Summary

    In 2003, timber harvesting occurred on 10 or 11 individually-owned parcels all located on Allotment No. 59 within the exterior boundaries of the Lummi Reservation (Reservation). 3/ Because each of these parcels is trust property, federal regulations require that BIA approve any timber harvests prior to the removal of any timber therefrom. See 25 C.F.R. § 163.26. It is undisputed that the logging operation on these parcels occurred without the knowledge or consent of BIA.

    BIA maintains that through the actions of the Nation's employees, particularly its Forest Manager, the Nation is liable for the timber trespass pursuant to 25 U.S.C. § 3106. The Nation maintains that, as a sovereign Indian nation, it cannot be held liable under section 3106. Additionally, even if tribes can be held liable, the Nation argues that it is not liable for the acts of its Forest Manager, who acted on his own and contrary to the instructions of his supervisors.

    We conclude that tribes are not exempt from liability for timber trespass under section 3106. However, we are unable to conclude, based on the record before us and BIA's conclusory findings, that the Nation is liable for the timber trespasses on Allotment No. 59. We remand this matter to the Regional Director for further consideration. If on remand, the Regional Director again concludes that the Nation is liable, he should clearly explain the specific legal theory of liability and the evidentiary support for finding liability.

    2/ The Nation does not appeal the amount of damages, interest or costs calculated by BIA for the timber trespass. The only issue before this Board is whether the Nation is liable for the timber trespass.

    3/ According to BIA's initial timber trespass report, timber was illegally logged on 10 parcels on Allotment No. 59. See July 14, 2004 Timber Trespass Report (Report) at 1. Sometime thereafter 2014 the record is silent as to the circumstances 2014 the parties began referring to an 11th parcel, parcel 59-AT, as also subject to damages for timber trespass.

  2. Brief History

    In 1990, the Nation entered into a self-governance compact with the Secretary of the Interior pursuant to the Indian Self-Determination and Education Assistance Act (ISDA), Pub. L. No. 93-638, 25 U.S.C. § 450 et seq. Under the compact and relevant to this appeal, the Nation provides forestry programs and services for tribally- and individuallyowned trust lands on the Reservation. 4/ The record does not contain a description of those programs and services.

    In the years preceding the timber harvest at issue in this appeal, the record reflects that there were some difficulties with the Nation's administration of its forestry program, including an unauthorized timber harvest that occurred on the General Harrison allotment. 5/ In April 2001, the Lummi Natural Resources Department (LNRD), an agency of the Nation, hired Allen Tweedie as its Forest Manager. In this position, Tweedie was responsible for preparing and issuing timber harvest permits for trust lands located on the Reservation. Tweedie also drafted the 2002-2012 Lummi Forestry Management Plan (Plan), which was approved by the Lummi Indian Business Council (LIBC) and BIA. The Plan was drafted specifically to redress one of the deficiencies in the Nation's forestry program identified by BIA in 2000 at the time of the timber trespass on the General Harrison allotment. June 1, 2000 Letter from Regional Director to Nation. The Plan provides that timber harvest permit applications must go through "an internal review process to determine whether the permit will be approved, approved with conditions, or denied. Once the timber harvest is approved internally, BIA in Portland has to make the final approval." Plan at 62. 6/

  3. Facts Relating to the Timber Trespasses on Allotment No. 59

    At approximately the same time in May 2004, both the Nation and BIA became aware of a timber harvest occurring on a number of parcels on Allotment No. 59 when a

    4/ The Nation represents that it has been managing the forestry program on its reservation since 1988 "when [it] was a part of the first group of Tribes participating in the selfgovernance pilot project with the Department of [the] Interior." Sept. 17, 2004 Letter from Nation to BIA at 1.

    5/ This trespass was the subject of investigation by the Regional Director. June 1, 2000 Letter from Regional Director to Nation.

    6/ Page 62 was the only page of the Plan submitted to the Board.

    slashburn that apparently was part of the harvest grew into a wildfire. The Nation maintains that Tweedie started the slashburn. June 28, 2004 Letter from Nation to BIA at 2. Prior to the discovery of the wildfire, BIA and the Nation 2014 except for Tweedie, as will be explained 2014 had no knowledge of the timber harvests and it is undisputed that BIA had not approved the harvests. Both the Nation and BIA issued stop work/cease and desist orders to halt the timber cutting and both commenced investigations.

    The Lummi Police Department initiated an investigation to determine whether Tweedie had engaged in criminal activity. 7/ BIA initiated a timber trespass investigation headed by Nick Johnson, a forester for the Puget Sound Agency, BIA (Agency), and Joe LaVerdure, a BIA Regional Forester. Over the course of BIA's investigation, Johnson and LaVerdure met with various Nation officials; investigated and calculated the value of the timber cut and damaged by the fire; interviewed some of the holders of interests on Allotment No. 59 whose parcels were affected by the timber harvest; and gathered various documents related to the affected parcels and the timber harvests. 8/ Because damages for timber trespass on a number of the parcels have been settled by the parties 9/, this decision addresses the results of BIA's investigation and conclusions only with respect to those parcels for which damages remain outstanding: 59-F, 59-I, 59-L, 59-M, 59-R and 59-AT. Below, we summarize the evidence in the record pertaining to each of these six parcels and the timber trespass thereon.

    Parcel 59-F

    On August 19, 2002, the owner of parcel 59-F completed an application for a land use permit, which is part of the record, to clear timber on her parcel. 10/ The land use permit application lists Ray Beck as the contractor who would be harvesting the timber on

    7/ The parties have not informed the Board whether any criminal charges were brought against Tweedie and, if so, their outcome.

    8/ Two trespass reports were submitted, the Report dated July 14, 2004 and a February 25, 2005 Revised Report (Revised Report).

    9/ The Nation has settled the damages with the owners of parcels 59-G, 59-H, 59-J, 59-K and 59-N as well as with some of the owners of parcel 59-L.

    10/ Apparently, tribal law requires landowners to obtain both a timber harvest permit and a land use permit prior to conducting any timber harvest operations on lands within the Reservation.

    parcel 59-F. The land use permit application was approved by the Lummi Planning Department and a conditional land use permit, also in the record, was issued in September 2002. 11/ The permit describes the work on parcel 59-F as "[c]learing & installation of manufactured home."

    On May 8, 2003, the landowner obtained a timber harvest permit from the Nation. The permit is a two-page document. The first page has the Nation's letterhead with the following caption displayed,

    The permit begins by informing the landowner that "[p]ermission is hereby granted * * * to cut and remove timber in accordance with the provisions on the reverse side of this permit." (Emphasis added.) The permit describes the land where the timber harvest will occur, describes the timber to be cut ("mainly firewood material and pulp grade and sawlogs"), and sets out various conditions that must be met. One of the conditions requires "[t]he permittee [to] comply with all other laws and regulation[s] governing the Lummi Reservation within which the permit area is located." The permit is signed by both the landowner, who agrees to comply with the conditions of the permit, and by Tweedie. Tweedie is identified on the permit as the "Lummi Forestry Officer" and his signature appears on a line after the word "APPROVED." This permit, and the ones...

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