Quinault Indian Nation v. Portland Area Director, 33 IBIA 6 (1998)

• Court: Interior Board of Indian Appeals

Appeal from the disapproval of a portion of a proposed expenditure plan for forest management deductions.

Affirmed.

1. Indians: Timber Resources: Generally

   The definition of "forest land management activities" in the

   National Indian Forest Resources Management Act, 25 U.S.C. § 3103(4) (1994), does not explicitly include "construction of office buildings." Neither does such an expenditure fall into one of the other "classes" of uses for forest management deductions authorized by the statute.

2. Indians: Timber Resources: Generally

   At the very least, the Secretary of the Interior or his authorized representative has the authority to disapprove in whole or in part a tribe's proposed plan for the expenditure of forest management deductions, if the proposed expenditures are not authorized under the National Indian Forest Resources Management Act, 25 U.S.C. §§ 3101-3120 (1994).

3. Administrative Authority: Generally--Bureau of Indian Affairs: Generally--Indians: Generally--Statutory Construction: Administrative Construction

   In order to correct prior error, an official of the Bureau of Indian Affairs may change an administrative interpretation of a statute as long as the reason for the change is clearly set forth to show that the departure from the prior administrative position is not arbitrary or capricious.

   IBIA 98-84-A

   APPEARANCES: LynDee Wells, Esq., Seattle, Washington, for Appellant; Michael E. Drais, Esq., Office of the Regional Solicitor, U.S. Department of the Interior, Portland, Oregon, for the Area Director.

   OPINION BY CHIEF ADMINISTRATIVE JUDGE LYNN

   Appellant Quinault Indian Nation seeks review of a March 2, 1998, decision issued by the Portland Area Director, Bureau of Indian Affairs (Area Director; BIA). The Area Director denied that portion of Appellant's proposed Fiscal Year 1998 (FY98) Forest Management Deduction Expenditure Plan (Plan) which proposed to use an estimated $900,000 to cover the construction costs of that part of a Tribal Natural Resources building which would house Appellant's forestry personnel. For the reasons discussed below, the Board of Indian Appeals (Board) affirms the Area Director's decision.

   Expedited Consideration

   Appellant requested expedited consideration of this appeal. In its Statement of Reasons, Appellant indicated that two problems might result from the fact that work had been halted on that portion of the building which it had proposed to finance under its FY98 Plan. First, Appellant stated that new employees scheduled to begin work on October 1, 1998, might have to be housed in its existing, but inadequate, space. Second, Appellant asserted that it might be subject to delay penalties imposed by its contractor.

   The Area Director concurred in the request for expedited consideration, but for the reason that "[t]he legal issues pending this Board's decision are matters of first impression with immediate, nationwide consequences as to the expenditure of forest management deductions." June 2, 1998, Letter Transmitting Area Director's Answer Brief.

   Expedited consideration is granted.

   Background

   Since 1920, "forest management deductions" (FMD) have been authorized by 25 U.S.C. § 413 (1994), 1/ which provides:

   The Secretary of the Interior is hereby authorized, in his discretion, and under such rules and regulations as he may prescribe, to collect reasonable fees to cover the cost of any and all work performed for Indian tribes or for individual Indians, to be paid by vendees, lessees, or assignees, or deducted from the proceeds of sale, leases, or other sources of revenue: Provided, That the amounts

   _________________________________ 1/ Unless otherwise indicated, all further citations to the United States Code are to the 1994 edition.

   IBIA 98-84-A

   so collected shall be covered into the Treasury as miscellaneous receipts, except when the expenses of the work are paid from Indian tribal funds, in which event they shall be credited to such funds.

   The National Indian Forest Resources Management Act (NIFRMA), Pub.L. No. 101-630, 104 Stat. 4532, 25 U.S.C. §§ 3101-3120, was enacted in 1990. 25 U.S.C. § 3105(a) continues to authorize the withholding of FMD. In 25 U.S.C. § 3105(c), Congress specified how FMD funds were to be expended:

   The full amount of any deduction collected by the Secretary shall be expended according to an approved expenditure plan, approved by the Secretary and the appropriate Indian tribe, for the performance of forest land management activities on the reservation from which such deductions are collected and shall be made available to the tribe, upon its request, by contract or agreement for the performance of such activities.

   25 U.S.C. § 3103(4) provides:

   "forest land management activities" means all activities performed in the management of Indian forest lands, including--(A) all aspects of program administration and executive direction such as-- (i) development and maintenance of policy and operational procedures, program oversight, and evaluation,

   (ii) securing of legal assistance and handling of legal matters,

   (iii) budget, finance, and personnel management, and

   (iv) development and maintenance of necessary data bases and program reports;

   (B) all aspects of the development, preparation and revision of forest inventory and management plans, including aerial photography, mapping, field management inventories and re-inventories, inventory analysis, growth studies, allowable annual cut calculations, environmental assessment, and forest history, consistent with and reflective of tribal integrated resource management plans;

   (C) forest land development, including forestation, thinning, tree improvement activities, and the use of silvicultural treatments to restore or increase growth and yield to the full productive capacity of the forest environment;

   IBIA 98-84-A

   (D) protection against losses from wildfire, including acquisition and maintenance of fire fighting equipment and fire detection systems, construction of firebreaks, hazard reduction, prescribed burning, and the development of cooperative wildfire management agreements;

   (E) protection against insects and disease, including-- (i) all aspects of detection and evaluation,

   (ii) preparation of project proposals containing project description, environmental assessments and statements, and cost-benefit analyses necessary to secure funding,

   (iii) field suppression operations, and

   (iv) reporting;

   (F) assessment of damage caused by forest trespass, infestation or fire, including field examination and survey, damage appraisal, investigation assistance, and report, demand letter, and testimony preparation;

   (G) all aspects of the preparation, administration, and supervision of timber sale contracts, paid and free use permits, and other Indian forest product harvest sale documents including-- (i) cruising, product marking, silvicultural prescription, appraisal and harvest supervision,

   (ii) forest product marketing assistance, including evaluation of marketing and development opportunities related to Indian forest products and consultation and advice to tribes, tribal and Indian enterprises on maximization of return on forest products,

   (iii) archeological, historical, environmental and other land management reviews, clearances, and analyses,

   (iv) advertising, executing, and supervising contracts,

   (v) marking and scaling of timber, and

   (vi) collecting, recording and distributing receipts from sales;

   (H) provision of financial assistance for the education of Indians enrolled in accredited programs of postsecondary and postgraduate forestry and forestry-33 IBIA 9

   IBIA 98-84-A

   related fields of study, including the provision of scholarships, internships, relocation assistance, and other forms of assistance to cover educational expenses;

   (I) participation in the development and implementation of tribal integrated resource management plans, including activities to coordinate current and future multiple uses of Indian forest lands;

   (J) improvement and maintenance of extended season primary and secondary Indian forest land road systems; and

   (K) research activities to improve the basis for determining appropriate management measures to apply to Indian forest lands. [2/]

   Although evidence of this fact is not included in the materials before the Board, Appellant has apparently been receiving FMD funds. According to Appellant, as of October 1, 1997, its FMD account had a balance of over $4.2 million, of which at least $2.7 million was derived from sales of timber from lands held in trust for it. Presumably, the remaining $1.5 million was derived from sales of timber from allotted lands.

   In accordance with 25 U.S.C. § 3105(c), on November 5, 1997, Appellant submitted its proposed FY98 Plan to the Superintendent, Olympic Peninsula Agency, BIA (Superintendent). The Plan called for expending $2,023,200 for a variety of activities. Section II, B of the Plan, which addressed Natural Resources Management, included the following proposed expenditure for Forestland Management:

   During FY98 a new Natural Resources Office Facility is being constructed adjacent to [Appellant's] Administrative Office Building. This facility will house all existing Natural Resources (QDNR) Staff as well as staff that will be hired upon compacting the remaining BIA Forestry and Realty Programs. Presently, the QDNR staff is occupying three modular buildings. These buildings are inadequately heated by portable heaters; the buildings have leaky roofs in a region where rainfall is 70 to 90 inches per year; and there is only limited space for present staffing and no space for the addition of 20-25 new staff positions for the remaining BIA Forestry and Realty Programs. As a majority of this complex will support Forestland Management Staff, partial funding of its

   _________________________________ 2/ Regulations implementing the NIFRMA were published at 60 Fed. Reg. 52260 (Oct. 5, 1995), and are found in 25 C.F.R. Part 163. The statutory definition of...