[Federal Register: November 12, 2003 (Volume 68, Number 218)]
[Proposed Rules]
[Page 64023-64036]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no03-17]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 161
RIN 1076-AE46
Navajo Partitioned Lands Grazing Permits
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This rulemaking adds a new part to the regulations of the
Bureau of Indian Affairs to govern the grazing of livestock on the
Navajo Partitioned Land (NPL) of the Navajo-Hopi Former Joint Use Area
(FJUA) of the 1882 Executive Order reservation. The purpose of these
regulations is to conserve the rangelands of the NPL in order to
maximize future use of the land for grazing and other purposes.
DATES: Written comments must be submitted no later than February 10,
2004.
ADDRESSES: All comments on the proposed rule must be in writing and
addressed to: Bill Downes, Acting Director, Office of Trust
Responsibilities, Attn.: Agriculture and Range, MS-3061-MIB, Code 210,
1849 C Street, NW., Washington, DC 20240, Telephone (202) 208-6464.
You may submit written comments on the proposed information
collection to the Desk Officer for the Department of the Interior,
Office of Management and Budget, either by telefaxing to (202) 395-6566, or by e-mail to OIRA_DOCKET@omb.eop.gov.
FOR FURTHER INFORMATION CONTACT: Harold Russell, (505) 863-8256, at the
Navajo Regional Office in Gallup, New Mexico.
SUPPLEMENTARY INFORMATION: As a result of the long-standing dispute
between the Hopi Tribe and the Navajo Nation over beneficial ownership
of the reservation created by the Executive Order of December 16, 1882,
Congress passed the Act of July 22, 1958, 72 Stat. 403, which permitted
the Navajo Nation and the Hopi Tribe to sue each other in federal court
to resolve the issue. The Hopi Tribe initiated such a suit on August 1,
1958, in United States District Court for the District of Arizona in
Healing v. Jones, 174 F. Supp. 211 (D. Ariz. 1959), (Healing I). The
merits of the case were heard by a three judge panel of the United
States District Court for the District of Arizona in Healing v. Jones,
210 F. Supp. 125 (D. Ariz. 1962) aff'd 373 U.S. 758 (1963), (Healing
II) after the initial procedural challenges to the suit were dismissed
in Healing I. The district court determined that while the Hopi Tribe
had a right to the exclusive use and occupancy of a portion of the 1882
reservation know as District 6, it shared the remaining lands of the
1882 reservation in common with the Navajo Nation. Disputes between the
two tribes continued over the right to use and occupy the 1882
reservation in spite of the district court's decision in Healing II. In
an attempt to resolve these ongoing problems, Congress enacted the
Navajo-Hopi Settlement Act, 25 U.S.C. 640d-640d-31, which provided for
the partition of the Joint Use Area of the 1882 reservation, excluding
District 6, between the two tribes. The Act was amended by the Navajo-
Hopi Indian Relocation Amendments Acts of 1980, 94 Stat. 929, due to
the dissatisfaction expressed by both tribes with the relocation
process.
The Relocation Act Amendments added subsection (c) to 25 U.S.C.
640d-18. It required the Secretary of the Interior to complete the
livestock reduction program contained in 25
[[Page 64024]]
U.S.C. 640d-18(a) within 18 months of its enactment. The new subsection
also required that all grazing control and range restoration activities
be coordinated and executed with the concurrence of the tribe to which
the land had been partitioned. In 1982, the U.S. District Court for the
District of Arizona determined in Hopi Tribe v. Watt, 530 F. Supp. 1217
(D. Ariz. 1982), that the grazing regulations contained in part 153 of
25 CFR were invalid with respect to the 1882 reservation partitioned to
both the Navajo Nation and the Hopi Tribe. The court reached that
conclusion because the regulations did not provide for the concurrence
of the Navajo Nation or the Hopi Tribe as required by the Relocation
Act Amendments. The district court's ruling was upheld by the Ninth
Circuit Court of Appeals in Hopi Tribe v. Watt, 719 F. 2d 314 (9th Cir.
1983).
As a result of the decision in Hopi Tribe v. Watt, Id., the Bureau
of Indian Affairs sought the concurrence of the Navajo Nation for the
regulations, which are herein published. The concurrence of the Navajo
Nation to these regulations was provided verbally by the Navajo-Hopi
Land Commission and the Navajo Nation Natural Resource Committee which
met jointly on June 26, 2003. Non-substantive, editorial changes have
been made to the proposed regulations, which were approved by the
Navajo Nation.
These regulations are issued to implement the Secretary of the
Interior's responsibilities for the Navajo Partitioned Lands as
mandated by the Navajo-Hopi Settlement Act, as amended by the
Relocation Act Amendments, and the previously cited federal court
decisions. In 1982, part 152 of 25 CFR was re-designated as part 167,
Navajo Grazing Regulations, and part 153 of 25 CFR was re-designated as
part 168, Hopi Partitioned Lands Grazing Regulations. All grazing
permits issued for the joint Use Area under the old 25 CFR part 152,
some of which dated from 1940, were canceled within one year pursuant
to the Order of Compliance issued on October 14, 1972, by the U.S.
District Court of the District of Arizona in Hamilton v. MacDonald,
Civ. 579-PCT. From 1973 through 1978, the Bureau of Indian Affairs did
not issue grazing permits for the Joint Use Area (JUA) during
calculation of the range's carrying capacity and stocking rates.
However, in late 1977 the Joint Use Area Administrative Office of the
Bureau of Indian Affairs at Flagstaff, Arizona, completed its inventory
and began issuing annual grazing permits to the residents of the JUA.
These interim permits were limited to one year by order of the federal
district court. Since the 1982 ruling in Hopi v. Watt, 530 F.2d 1217
(1983), declaring that the pre-1982 regulations were invalid, the
Bureau of Indian Affairs has been subject to the provisions of the
Navajo-Hopi Settlement Act, as amended, which require the development
of new grazing regulations for the Navajo Partitioned Land with the
concurrence of the Navajo Nation. These regulations are the product of
that consultation.
Proposed rulemaking was published in the Federal Register on
November 1, 1995 (60 FR 55506), and invited comments for 60 days ending
January 2, 1996. To allow maximum input from the Navajo and Hopi Tribes
and the public, an extension of the comment period to September 9, 1996
was published in the Federal Register on June 10, 1996 (61 FR 29327). A
total of 74 written comments were received from individuals and
attorneys representing the Navajo Nation, as well as individuals
commenting on their own behalf. The comments were reviewed by the
Navajo-Hopi Land Commission of the Navajo Nation Council NPL
Subcommittee during the week of November 17, 1996. The suggested
responses to the comments were sent to the Navajo Nation Resources
Committee for further review and consideration on September 10, 1998.
Comments and recommendations were adopted and incorporated into a
proposed rule which was never finalized. We have reviewed the comments
and recommendations, and incorporated them in the proposed rule where
appropriate.
This rulemaking also incorporates the requirements of the American
Indian Agricultural Resource Management Act (AIARMA)(107 Stat. 2011, 25
U.S.C. Sec. 3703 et seq.), as amended. The purposes of AIARMA include
carrying out the trust responsibility of the United States and
promoting self-determination of Indian tribes by providing for the
management of Indian agricultural lands and related renewable resources
in a manner consistent with identified tribal goals and priorities for
conservation, multiple use, and sustained yield; by authorizing the
Secretary to take part in the management of Indian agricultural lands
with the participation of the beneficial owners of the land in a manner
consistent with the trust responsibility of the Secretary and the
objectives of the beneficial owners; and by providing for the
development and management of Indian agricultural land. The AIARMA
requires that the Secretary conduct all land management activities on
Indian agricultural lands in accordance with agricultural resource
management plans, integrated resources management plans, and all tribal
laws and ordinances, except where such compliance would be contrary to
the trust responsibility of the United States.
Final regulations governing grazing permits for all Indian lands
were promulgated in 25 CFR part 166 on January 22, 2001, and are found
at 25 CFR part 166. While part 166 applies to all Indian agricultural
lands, part 161 applies only to the Navajo Partitioned Lands. Both
regulations implement the requirements of AIARMA.
Section-by-Section Analysis of the Proposed Rule
Subpart A, ``Definitions, Authority, Purpose and Scope,'' contains
key terms used throughout the proposed regulation. These terms are
consistent with those found in AIARMA. This subpart also describes the
Secretary's authorities under this part.
Subpart B, ``Tribal Policies and Laws Pertaining to Permits,'' is
consistent with AIARMA and makes clear that Navajo Nation laws
generally apply to land under the jurisdiction of the Navajo Nation,
except to the extent that those Navajo Nation laws are inconsistent
with applicable federal law. Further, unless prohibited by federal law,
BIA will recognize and comply with tribal laws regulating activities on
the Navajo Partitioned Lands, including tribal laws relating to land
use, environmental protection, and historic or cultural preservation.
Subpart C, ``General Provisions,'' lists the environmental
compliance and management documents that are required by AIARMA. This
subpart also discusses how carrying capacity and stocking rates are
established.
Subpart D, ``Grazing Permit Requirements,'' describes the general
requirements for obtaining a permit, the provisions contained in a
grazing permit, the restrictions placed on permits, and other permit
requirements.
Subpart E, ``Reissuance of Grazing Permits,'' sets forth
eligibility and priority criteria for reissuance of cancelled grazing
permits. This subpart makes clear that the Navajo Nation may prescribe
eligibility requirement for grazing allocations within 180 days
following the effective date of these regulations. BIA will prescribe
the eligibility requirements after expiration of the 180-day period in
the event that the Navajo Nation does not prescribe eligibility
requirements, or in the event that satisfactory action is not taken by
the Navajo Nation. This subpart also describes how new permits may be
granted after the initial reissuance of permits, and sets forth the
procedures
[[Page 64025]]
for re-issuing permits and allocating permits within each range unit.
Subpart F, ``Modifying A Permit,'' describes how permits may be
transferred, assigned or modified.
Subpart G, ``Permit Violations,'' sets forth the procedures for the
investigation, notification and processing of permit violations. This
section also describes the process by which mediation can be used in
the event of a permit violation.
Subpart H, ``Trespass,'' describes the process for trespass
notification, enforcement, actions and penalties, damages and costs.
This subpart is substantially similar to the general grazing
regulations, 25 CFR, part 166, subpart I, and is consistent with
AIARMA.
Subpart I, ``Concurrence/Appeals/Amendments,'' sets forth the
procedures for the Navajo Nation to provide concurrence to BIA under
this part. This subpart also states that decisions made by BIA under
this part may be appealed, and that decisions made by the Navajo Nation
under this part may be appealed to the appropriate hearing body of the
Navajo Nation.
Procedural Requirements
A. Regulatory Planning and Review (Executive Order 12866)
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Office of Management and Budget (OMB) must determine whether the
regulatory action is ``significant'' and therefore subject to OMB
review and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles in the
Executive Order.
This proposed rule describes how BIA will administer grazing
permits on trust land. Thus, the impact of the rule is confined to the
Federal Government and individual Indian and the Navajo Nation, and
does not impose a compliance burden on the economy generally.
Accordingly, it has been determined that this rule is not a
``significant regulatory action'' under any of the preceding criteria.
B. Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as
amended, whenever an agency is required to publish a notice of rule
making for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (e.g., small
businesses, small organizations, and small government jurisdictions).
Indian tribes are not considered to be small entities for purposes of
the Act and, consequently, no regulatory flexibility analysis has been
done.
This proposed implementation guidance does not have significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of U.S. based enterprises to compete with
foreign-based enterprises because it concerns only the Navajo Nation.
Accordingly, this proposed regulation will not have an economic impact
on a substantial number of small entities, and, therefore, no
regulatory flexibility analysis has been prepared.
C. Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996
Under 5 U.S.C. 804(2), SBREFA, a rule is major if OMB finds that it
results in (1) An annual effect on the economy of $100 million or more;
(2) A major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; or (3) Significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
This proposed rule is not a major rule as defined by Section 804 of
the SBREFA. This rule is uniquely confined to the Federal Government,
individual Indians and the Navajo Nation, thus, it will not result in
the expenditure by State, local and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year. This proposed rule provides regulatory guidance for grazing
permits on trust lands owned by individual Indians and the Navajo
Nation.
D. Unfunded Mandates Reform Act
The proposed implementation guidance would not impose unfunded
mandates as defined by the Unfunded Mandates Reform Act of 1995 (Public
Law 104-4, March 22, 1995, 109 Stat. 48). This proposed rule will not
result in the expenditure by State, local and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year (2 U.S.C. 1532). The impact of this proposed rule is confined
to grazing permits on land held in trust for the Navajo Nation.
Accordingly, this proposed rule will not result in the expenditure of
$100 million or more in any one year.
E. Takings Implication Assessment (Executive Order 12630)
This proposed implementation guidance does not have significant
``takings'' implications. Policies that have taking implications do not
include actions affecting properties that are held in trust by the
United States. The NPL grazing regulations provide specific regulatory
guidance on trust lands.
F. Energy Effects (Executive Order 13211)
On May 18, 2001, the President issued Executive Order 13211 which
speaks to regulations that significantly affect energy supply,
distribution, and use. The Executive Order requires agencies to prepare
Statements of Energy Effects when undertaking certain actions. This
proposed rule is restricted to 25 CFR 161, Navajo Partitioned Lands
Grazing Permits on lands held in trust for individual Indians and
tribes. Mineral development on lands held in trust for individual
Indians and the Navajo Nation are regulated under the Indian Mineral
Development Act. Regulations for mineral development are provided under
a separate part in 25 CFR 211, 212 and 225. This proposed
implementation guidance is not expected to significantly affect energy
supplies, distribution, or use. Therefore, no Statement of Energy
Effects has been prepared.
G. Federalism (Executive Order 12612)
This proposed implementation guidance does not have significant
Federalism effects because it pertains solely to Federal-tribal
relations and will not interfere with the roles, rights, and
responsibilities of States. While this proposed rule will impact tribal
governments, there is no federalism impact on the trust relationship or
balance of power between the United States government and the various
tribal governments affected by this rulemaking. Therefore, in
accordance with Executive Order 13132, it is
[[Page 64026]]
determined that this rule will not have sufficient federalism
implications to warrant the preparation of a federalism assessment.
H. Civil Justice Reform (Executive Order 12988)
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
Civil Justice Reform, 61 FR 4729, February 7, 1996, imposes on
executive agencies the general duty to adhere to the following
requirements:
(1) Eliminate drafting errors and ambiguity; (2) write regulations
to minimize litigation; and (3) provide a clear legal standard for
effective conduct rather than a general standard and promote
simplification and burden reduction. With regard to the review required
by section 3 (a), section (b) of Executive Order 12988 specifically
requires that executives agencies make every reasonable effort to
insure that the regulations: (1) Clearly specifies the preemptive
effect, if any; (2) clearly specifies any effect on existing federal
law or regulation; (3) provides a clear legal standard for affecting
conduct while promoting simplification and burden reduction; (4)
specifies the retroactive affect if any; (5) adequately defines key
terms; and (6) addresses other important issues affecting clarity and
general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires executive
agencies to review regulations in light of the applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet on or more of them. This proposed
implementation guidance does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
the Executive Order 12988.
I. National Environmental Policy Act (NEPA)
This proposed rule is categorically excluded from the preparation
of an environmental assessment or an environmental impact statement
under the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et
seq., because its environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis and the Federal
actions under the proposed rule (i.e., approval or disapproval of
grazing permits on Indian lands) will be subject at the time of the
action itself to the National Environmental Policy Act process, either
collectively or case-by-case. Further, no extraordinary circumstances
exist to require preparation of an environmental assessment or
environmental impact statement.
J. Consultation and Coordination With Indian Tribal Governments
(Executive Order 13175)
Pursuant to Executive Order 13175 of November 6, 2000, Consultation
and Coordination with Indian Tribal Governments, the Department has
determined that because the proposed rule making will uniquely affect
tribal governments it will follow Department and Administrative
protocols in consulting with tribal governments on the rulemaking.
Consequently, tribal governments will be notified through this Federal
Register document and through BIA field offices, of the ramifications
of this rulemaking. This will enable tribal officials and the affected
tribal constituency throughout the Navajo Partitioned Lands to have
meaningful and timely input in the development of the final rule. This
will reinforce good intergovernmental relations with the Navajo Nation
and better inform, educate and advise the Navajo Nation on compliance
requirements of the rulemaking. We consulted with representatives of
the Navajo Nation during the formulation of this proposed regulation.
Representatives from the Navajo-Hopi Land Commission and Navajo Nation
Natural Resource Committee met in consultation several times from
November 2002 to June of 2003 to draft the proposed regulations. The
comments received from these consultations were taken into
consideration in the formulation of the following proposed NPL Grazing
regulations. We have committed to consulting with the Navajo Nation in
the formulation of a final rule for the Navajo Partitioned Lands
Grazing regulations.
K. Paperwork Reduction Act
This regulation requires an information collection from 10 or more
parties, and therefore is subject to review under the Paperwork
Reduction Act of 1995 (Pub. L. 104-13).
The table showing the burden of the information collection is
included below for your information.
Table of Burden for 25 CFR 161
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Salary: Salary:
$5.00 x $18.52 x
Hourly Total total Federal Total total
Number of Number of burden per annual hourly burden per Federal hourly
CFR Section respondents annual response hourly burden = response annual burden =
responses (hours) burden total (hours) burden hours total
hourly Federal
burden cost burden cost
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161.102........................................ 700 700 ........... ........... ........... \1/2\ 350 $6,482
161.206........................................ 700 700 \1/2\ 350 $1,750 \1/4\ 175 3,241
161.301........................................ 700 700 ........... ........... ........... \1/4\ 175 3,241
161.302........................................ 700 700 \1/3\ 233 1,165 \1/4\ 175 3,241
161.304........................................ 700 700 ........... ........... ........... \1/4\ 175 3,241
161.402........................................ 700 700 \1/3\ 233 1,165 1 700 12,964
161.500........................................ 70 70 \1/3\ 23 115 1 70 1,296
161.502........................................ 70 70 ........... ........... ........... \1/4\ 17.5 324
161.604........................................ 35 35 \1/2\ 17.5 87 1 35 648
161.606........................................ 35 35 \1/2\ 17.5 87 1 35 648
161.703........................................ 35 35 \1/2\ 17.5 87 1 35 648
161.704........................................ 35 35 \1/2\ 17.5 88 1 35 648
161.708........................................ 10 10 \1/2\ 5 25 1 10 185
161.717........................................ 10 10 1 10 50 2 20 370
161.800........................................ 700 700 \1/4\ 175 875 \1/4\ 212.5 3,936
161.801........................................ 85 85 \1/2\ 42.5 213 1 85 1,575
161.802........................................ 85 85 1 85 425 \1/2\ 42.5 787
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[[Page 64027]]
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DOI invites comments on the information collection requirements in
the proposed regulation. You may submit comments by telefacsimile at (202) 395-6566 or by e-mail at OIRA_DOCKET@omb.eop.gov. Please also
send a copy of your comments to BIA at the location specified under the
heading ADDRESSES. Note that requests for comments on the rule and the
information collection are separate.
You can receive a copy of BIA's submission to OMB by contacting the
person listed in the FOR FURTHER INFORMATION CONTACT section, or by
requesting the information from BIA Information Collection Clearance
Officer, 1951 Constitution Avenue, NW., Mail Stop 52 SIB, Washington,
DC 20240.
Comments should address: (1) Whether the proposed collection of
information is necessary for the proper performance of the Program,
including the practical utility of the information to BIA; (2) the
accuracy of BIA's burden estimates; (3) ways to enhance the quality,
utility, and clarity of the information collected; and (4) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
Please note that an agency may not sponsor or request, and an
individual need not respond to, a collection of information unless it
has a valid OMB Control Number. This is a new collection. OMB will
assign an OMB Control Number when the collection is approved. OMB must
make a decision concerning the collection of information requirements
in this proposed rule no sooner than 30 days, and no later than 60
days, after it is published in the Federal Register. Therefore, a
comment is best assured of having its maximum effect if OMB receives it
within 30 days of publication. Comments on information collection
requirements do not relate, however, to the deadline for general public
comments on the proposed rule, indicated in the DATES section.
We are collecting this information in order to properly manage the
grazing permits on the Navajo Partitioned Lands in keeping with good
grazing practices. We estimate that the hourly public burden for
providing the information ranges from 15 minutes to 1 hour. We estimate
the cost to the public to be $6,132.00 based on an hourly cost of
$5.00. The requested information is submitted in order to obtain or
retain a benefit, i.e., a grazing permit. We do not require the public
to maintain records except temporarily for those needed to complete
reports. There is no need for confidentiality protections other than
those which would be covered by FOIA/Privacy Act.
Organizations and individuals who submit comments on the
information collection requirements should be aware that BIA keeps such
comments available for public inspection during regular business hours.
If you wish to have your name and address withheld from public
inspection, you must state this prominently at the beginning of any
comments you make. BIA will honor your request to the extent allowable
by law.
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand, including answers to questions such as
the following:
(1) Are the requirements in the rule clearly stated?
(2) Does the rule contain technical language or jargon that
interferes with its clarity?
(3) Does the format of the rule (grouping and order of sections,
use of headings, paragraphing, etc.) aid or reduce its clarity?
(4) Would the rule be easier to understand if it were divided into
more (but shorter) sections? (A ``section'' appears in bold type and is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 161.1 What definitions do I need to know?)
(5) Is the description of the rule in the SUPPLEMENTARY INFORMATION
section of the preamble helpful in understanding the proposed rule?
(6) What else could we do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, Department
of the Interior, Room 7229, 1849 C Street NW., Washington, DC 20240. You may also e-mail the comments to this address: Exsec@ios.doi.gov.
Public Comment Solicitation
If you wish to comment on this proposed rule, you may mail or hand-
deliver your written comments to the person listed in the ADDRESSES
section of this document. Comments may also be telefaxed to the
following number: (202) 219-0006. We cannot accept electronic
submissions at this time. All written comments received by the date
indicated in the DATES section of this document will be carefully
assessed and fully considered before publication of a final rule.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record. We will honor the
request to the extent allowable by law. There also may be circumstances
in which we would withhold from the rulemaking record a respondent's
identity, as allowable by law. If you wish us to withhold your name
and/or address, you must state this prominently at the beginning of
your comment. However, we will not consider anonymous comments. We will
make all submissions from organizations or businesses, and from
individuals identifying themselves as representatives or officials of
organizations or businesses, available for public inspection in their
entirety.
List of Subjects in 25 CFR Part 161
Grazing lands, Indians-lands, Livestock.
Dated: November 6, 2003.
Aurene M. Martin,
Principal Deputy Assistant Secretary--Indian Affairs.
For the reasons stated in the preamble, the Bureau of Indian
Affairs proposes to add part 161 to chapter I of
[[Page 64028]]
title 25 of the Code of Federal Regulations as follows.
PART 161--NAVAJO PARTITIONED LANDS GRAZING PERMITS
Subpart A--Definitions, Authority, Purpose and Scope
Sec.
161.1 What definitions do I need to know?
161.2 What are the Secretary's authorities under this part?
161.3 What is the purpose of this part?
161.4 To what lands does this part apply
161.5 Can BIA waive the application of this part?
161.6 Are there any other restrictions on information given to BIA?
Subpart B--Tribal Policies and Laws Pertaining to Permits
161.100 Do tribal laws apply to grazing permits?
161.101 How will tribal laws be enforced on the Navajo Partitioned
Lands?
161.102 What notifications are required that tribal laws apply to
grazing permits on the Navajo Partitioned Lands?
Subpart C--General Provisions
161.200 Is an Indian agricultural resource management plan required?
161.201 Is environmental compliance required?
161.202 How are range units established?
161.203 Are range management plans required?
161.204 How are carrying capacities and stocking rates established?
161.205 How are range improvements treated?
161.206 What must a permittee do to protect livestock from exposure
to disease?
161.207 What livestock are authorized to graze?
Subpart D--Permit Requirements
161.300 When is a permit needed to authorize grazing use?
161.301 What will a grazing permit contain?
161.302 What restrictions are placed on grazing permits?
161.303 How long is a permit valid?
161.304 Must a permit be recorded?
161.305 When is a decision by BIA regarding a permit effective?
161.306 When are permits effective?
161.307 When may a permittee commence grazing on Navajo Partitioned
Land?
161.308 Must permittee comply with standards of conduct if granted a
permit?
Subpart E--Reissuance of Grazing Permits
161.400 What are the criteria for reissuing grazing permits?
161.401 Will new permits be granted after the initial reissuance of
permits?
161.402 What are the procedures for reissuing permits?
161.403 How are grazing permits allocated within each range unit?
Subpart F--Modifying a Permit
161.500 May permits be transferred, assigned or modified?
161.501 When will a permit modification be effective?
161.502 Will a special land use require permit modification?
Subpart G--Permit Violations
161.600 What permit violations are addressed by this subpart?
161.601 How will BIA monitor permit compliance?
161.602 Will my permit be canceled for non-use?
161.603 Can a permit provide for mediation in the event of a permit
violation or dispute?
161.604 What happens if a permit violation occurs?
161.605 What will a written notice of a permit violation contain?
161.606 What will BIA do if the permitee doesn't cure a violation on
time?
161.607 What appeal bond provisions apply to permit cancellation
decisions?
161.608 When will a permit cancellation be effective?
161.609 Can BIA take emergency action if the rangeland is
threatened?
161.610 What will BIA do if livestock is not removed when a permit
expires or is cancelled?
Subpart H--Trespass
161.700 What is trespass?
161.701 What is BIA's trespass policy?
161.702 Who will enforce this subpart?
Notification
161.703 How are trespassers notified of a trespass determination?
161.704 What can a permittee do if they receive a trespass notice?
161.705 How long will a written trespass notice remain in effect?
Actions
161.706 What actions does BIA take against trespassers?
161.707 When will BIA impound unauthorized livestock or other
property?
161.708 How are trespassers notified of impoundments?
161.709 What happens after unauthorized livestock or other property
are impounded?
161.710 How can impounded livestock or other property be redeemed?
161.711 How will BIA sell impounded livestock or other property?
Penalties, Damages, and Costs
161.712 What are the penalties, damages, and costs payable by
trespassers?
161.713 How will BIA determine the amount of damages to Navajo
Partitioned Lands?
161.714 How will BIA determine the costs associated with enforcement
of the trespass?
161.715 What will BIA do if a trespasser fails to pay penalties,
damages and costs?
161.716 How are the proceeds from trespass distributed?
161.717 What happens if BIA does not collect enough money to satisfy
the penalty?
Subpart I--Concurrence/Appeals/Amendments
161.800 How does the Navajo Nation to provide concurrence to BIA?
161.801 May decisions under this part be appealed?
161.802 How will the Navajo Nation recommend amendments to this
part?
Authority: 25 U.S.C. 2; 5 U.S.C. 301; 25 U.S.C. 640d et seq.
Subpart A--Definitions, Authority, Purpose, and Scope
Sec. 161.1 What definitions do I need to know?
Agricultural Act means the American Indians Agricultural Resource
Management Act (AIARMA) of December 3, 1993 (107 Stat. 2011, 25 U.S.C.
Sec. 3701 et seq.), and amended on November 2, 1994 (108 Stat. 4572).
Agricultural resource management plan means a 10-year plan
developed through the public review process specifying the tribal
management goals and objectives developed for tribal agricultural and
grazing resources. Plans developed and approved under AIARMA will
govern the management and administration of Indian agricultural
resources and Indian agricultural lands by BIA and Indian tribal
governments.
Allocation means the number of animal units authorized in each
grazing permit.
Animal Unit (AU) means one adult cow and her 6-month-old calf or
the equivalent thereof based on comparable forage consumption. Thus as
defined in the following:
(1) One adult sheep or goat is equivalent to one-fifth (0.20) of an
AU;
(2) One adult horse, mule, or burro is equivalent to one and one
quarter (1.25) AU; or
(3) One adult llama is equivalent to three-fifths (0.60) of an AU.
Appeal means a written request for review of an action or the
inaction of an official of the Bureau of Indian Affairs that is claimed
to adversely affect the interested party making the request.
Appeal Bond means a bond posted upon filing of an appeal that
provides a security or guaranty if an appeal creates a delay in
implementing our decision that could cause a significant and measurable
financial loss to another party.
BIA means the Bureau of Indian Affairs within the Department of the
Interior.
Bond means security for the performance of certain permit
obligations, as furnished by the permittee, or a guaranty of such
performance as furnished by a third-party surety.
[[Page 64029]]
Business day means Monday through Friday, excluding federally or
tribally recognized holidays.
Carrying capacity means the number of livestock and/or wildlife,
which may be sustained on a management unit compatible with management
objectives for the unit.
Concurrence means the written agreement of the Navajo Nation with a
policy, action, decision or finding submitted for consideration by BIA.
Conservation practice refers to any management measure taken to
maintain or improve the condition, productivity, sustainability, or
usability of targeted resources.
Customary Use Area refers to an area to which an individual
traditionally confined his or her traditional grazing use and occupancy
and/or an area traditionally inhabited by his or her ancestors.
Day means a calendar day, unless otherwise specified.
Enumeration means the list of persons living on and identified
improvements located within the Former Joint Use Area obtained through
interviews conducted by BIA in 1974 and 1975.
Former Joint Use Area means the area that was divided between the
Navajo Nation and the Hopi Tribe by the Judgment of Partition issued
April 18, 1979, by the United States District Court for the District of
Arizona. This area was established by the United States District Court
for the District of Arizona in Healing v. Jones, 210 F. Supp. 125
(1962), aff'd. 373 U.S. 758 (1963) and is located:
(1) Inside the Executive Order area (Executive Order of December
16, 1882); and
(2) Outside Land Management District 6.
Grazing Committee means the District Grazing Committee established
by the Navajo Nation Council, who is responsible for enforcing and
implementing tribal grazing regulations on the Navajo Partitioned
Lands.
Grazing Permit means a revocable privilege granted in writing and
limited to entering on and utilizing forage by domestic livestock on a
specified range unit. The term as used herein shall include
authorizations issued to enable the crossing or trailing of domestic
livestock within assign range unit.
Historical Land Use: see Customary Use Area.
Improvement means any structure or excavation to facilitate
management of the range for livestock.
Livestock means horses, cattle, sheep, goats, mules, burros,
donkeys, and llamas.
Management Unit is a subdivision of a geographic area where unique
resource conditions, goals, concerns, or opportunities require specific
and separate management planning.
Navajo Nation means all offices/entities/programs under the direct
jurisdiction of the Navajo Nation Government.
Navajo Partitioned Lands (NPL) means that portion of the Former
Joint Use Area awarded to the Navajo Nation under the Judgment of
Partition issued April 18, 1979, by the United States District Court
for the District of Arizona, and now a separate administrative entity
within the Navajo Indian Reservation.
Non-Concurrence means the official written denial of approval by
the Navajo Nation of a policy, action, decision, or finding submitted
for consideration by BIA.
Range management plan is a statement of management objectives for
grazing, farming, or other agriculture management including contract
stipulations defining required uses, operations, and improvements.
Range Unit means a tract of land designated as a separate
management subdivision for the administration of grazing.
Resident means a person who lives on the Navajo Partitioned Lands.
Resources Committee means the oversight committee for the Division
of Natural Resources within the Navajo Nation Government. The Resources
Committee of the Navajo Nation Council to whom authority is delegated
to exercise the powers of the Navajo Nation with regards to the range
development and grazing management of the Navajo Partitioned Lands.
Secretary means the Secretary of the Interior or his or her
designated representative.
Settlement Act means the Navajo Hopi Settlement Act of December 22,
1974 (88 Stat. 1712, 25 U.S.C. Sec. 64d et seq., as amended).
Sheep Unit means an adult ewe with un-weaned lamb. It is also the
basic unit in which forage allocations are expressed.
Sheep Unit Year Long refers to the amount of forage needed to
sustain one sheep unit for one year.
Special land use means all land usage for purposes other than for
grazing withdrawn in accordance with Navajo Nation laws, Federal laws,
and BIA policies and procedures, such as but not limited to: Housing
permits, farm leases, governmental facilities, rights-of-way, schools,
parks, business leases, etc.
Special management area means an area for which a single management
plan is developed and applied in response to special management
objectives such as watershed management, fire hazard areas, or other
similar concerns.
Stocking rate means the maximum number of sheep units, or animal
units authorized to graze on a particular pasture, management unit, or
range unit during a specified period of time.
Trespass means any unauthorized occupancy, grazing, use of, or
action on the Navajo Partitioned Lands.
Sec. 161.2 What are the Secretary's authorities under this part?
(a) Under Section 640d-9(e) of the Settlement Act, lands
partitioned under the Settlement Act are subject to the jurisdiction of
the tribe to whom partitioned. The laws of the tribe apply to the
partitioned lands as in paragraphs (a)(1) and (a)(2) of this section.
(1) Effective October 6, 1980:
(i) All conservation practices on the Navajo Partitioned Lands,
including control and range restoration activities, must be coordinated
and executed with the concurrence of the Navajo Nation; and
(ii) All grazing and range restoration matters on the Navajo
Reservation lands must be administered by BIA, under applicable laws
and regulations.
(2) Effective April 18, 1981, the Navajo Nation has jurisdiction
and authority over any lands partitioned to it and over all persons on
these lands. This jurisdiction and authority apply:
(i) To the same extent as is applicable to those other portions of
the Navajo reservation; and
(ii) Notwithstanding any provision of law to the contrary, except
where there is a conflict with the laws and regulations referred to in
paragraph (a) of this section.
(b) Under the Agricultural Act, the Secretary is authorized to:
(1) Carry out the trust responsibility of the United States and
promote Indian tribal self-determination by providing for management of
Indian agricultural lands and renewable resources consistent with
tribal goals and priorities for conservation, multiple use, and
sustained yield;
(2) Take part in managing Indian agricultural lands, with the
participation of the land's beneficial owners, in a manner consistent
with the Secretary's trust responsibility and with the objectives of
the beneficial owners;
(3) Provide for the development and management of Indian
agricultural lands; and
(4) Improving the expertise and technical abilities of Indian
tribes and their members by increasing the
[[Page 64030]]
educational and training opportunities available to Indian people and
communities in the practical, technical, and professional aspects of
agricultural and land management.
Sec. 161.3 What is the purpose of this part?
The purpose of this part is to describe the goals and objectives of
grazing management on the Navajo Partitioned Lands:
(a) Provide resources to rehabilitate range resources in the
preservation of forage, soil, and water on the Navajo Partitioned
Lands;
(b) Monitor the recovery of those resources where they have
deteriorated;
(c) Protect, conserve, utilize, and maintain the highest productive
potential on the Navajo Partitioned Lands through the application of
sound conservation practices and techniques. These practices and
techniques will be applied to planning, development, inventorying,
classification, and management of agricultural resources;
(d) Increase production and expand the diversity and availability
of agricultural products for subsistence, income, and employment of
Indians, through the development of agricultural resources on the
Navajo Partitioned Lands;
(e) Manage agricultural resources consistent with integrated
resource management plans in order to protect and maintain other values
such as wildlife, fisheries, cultural resources, recreation and to
regulate water runoff and minimize soil erosion;
(f) Enable the Navajo Nation to maximize the potential benefits
available to its members from their lands by providing technical
assistance, training, and education in conservation practices,
management and economics of agribusiness, sources and use of credit and
marketing of agricultural products, and other applicable subject areas;
(g) Develop the Navajo Partitioned Lands to promote self-sustaining
communities; and
(h) Assist the Navajo Nation with permitting the Navajo Partitioned
Lands, consistent with prudent management and conservation practices,
and community goals as expressed in the tribal management plans and
appropriate tribal ordinances.
Sec. 161.4 To what lands does this part apply?
The grazing regulations in this part apply to the Navajo
Partitioned Lands within the boundaries of the Navajo Indian
Reservation held in trust by the United States for the Navajo Nation.
Contiguous areas outside of the Navajo Partitioned Lands may be
included under this part, for management purposes by BIA in
consultation with the affected permittees and other affected land
users, and with the concurrence of the Resources Committee.
Sec. 161.5 Can BIA waive the application of this part?
Yes, if a provision of this part conflicts with the objectives of
the agricultural resource management plan provided for in Sec.
161.200, or with a tribal law, BIA may waive the application of this
part unless the waiver would either:
(a) Constitute a violation of a federal statute or judicial
decision; or
(b) Conflict with BIA's general trust responsibility under federal
law.
Sec. 161.6 Are there any other restrictions on information given to
BIA?
Information that the BIA collects in connection with permits for
NPL in sections 161.102, 161.206, 161.301, 161.302, 161.304, 161.402,
161.500, 161.502, 161.604, 161.606, 161.703, 161.704, 161.708, 161.717,
161.800, 161.801, and 161.802 have been reviewed and approved by the
Office of Management and Budget. The OMB Control Number assigned is
1076-01XX. Please note that a federal agency may not conduct or
sponsor, and you are not required to respond to a collection of
information unless it displays a currently valid OMB control number.
Subpart B--Tribal Policies and Laws Pertaining to Permits
Sec. 161.100 Do tribal laws apply to grazing permits?
Navajo Nation laws generally apply to land under the jurisdiction
of the Navajo Nation, except to the extent that those Navajo Nation
laws are inconsistent with this part or other applicable federal law.
This part may be superseded or modified by Navajo Nation laws with
Secretarial approval, however, so long as:
(a) The Navajo Nation laws are consistent with the enacting Navajo
Nation's governing documents;
(b) The Navajo Nation has notified BIA of the superseding or
modifying effect of the Navajo Nation laws;
(c) The superseding or modifying of the regulation would not
violate a federal statute or judicial decision, or conflict with the
Secretary's general trust responsibility under federal law; and
(d) The superseding or modifying of the regulation applies only to
Navajo Partitioned Lands.
Sec. 161.101 How will tribal laws be enforced on the Navajo
Partitioned Lands?
(a) Unless prohibited by federal law, BIA will recognize and comply
with tribal laws regulating activities on the Navajo Partitioned Lands,
including tribal laws relating to land use, environmental protection,
and historic or cultural preservation.
(b) While the Navajo Nation is primarily responsible for enforcing
tribal laws pertaining to the Navajo Partitioned Lands, BIA will:
(1) Assist in the enforcement of Navajo Nation laws;
(2) Provide notice of Navajo Nation laws to persons or entities
undertaking activities on the Navajo Partitioned Lands; and
(3) Require appropriate federal officials to appear in tribal
forums when requested by the tribe, so long as the appearance would
not:
(i) Be consistent with the restrictions on employee testimony set
forth at 43 CFR part 2, subpart E;
(ii) Constitute a waiver of the sovereign immunity of the United
States; or
(iii) Authorize or result in a review of (BIA) actions by the
tribal court.
(c) Where the provisions in this subpart are inconsistent with a
Navajo Nation law, but the provisions cannot be superseded or modified
by the Navajo Nation laws under Sec. 161.5, BIA may waive the
provisions under part 1 of this title, so long as the new waiver does
not violate a federal statute or judicial decision or conflict with the
Secretary's trust responsibility under federal law.
Sec. 161.102 What notifications are required that tribal laws apply
to grazing permits on the Navajo Partitioned Lands?
(a) The Navajo Nation must provide BIA with an official copy of any
tribal law or tribal policy that relates to this part. The Navajo
Nation must notify BIA of the content and effective dates of tribal
laws.
(b) BIA will then notify affected permittees of the effect of the
Navajo Nation law on their grazing permits. BIA will:
(1) Provide individual written notice; or
(2) Post public notice. This notice will be posted at the tribal
community building, U.S. Post Office, announced on local radio station,
and/or published in the local newspaper nearest to the permitted Navajo
Partitioned Lands where activities are occurring.
[[Page 64031]]
Subpart C--General Provisions
Sec. 161.200 Is an Indian agricultural resource management plan
required?
(a) Yes, Navajo Partitioned Lands must be managed in accordance
with the goals and objectives in the agricultural resource management
plan developed by the Navajo Nation, or by BIA in close consultation
with the Navajo Nation, under the Agricultural Act.
(b) The 10-year agricultural resource management and monitoring
plan must be developed through public meetings and completed within 3
years of the initiation of the planning activity. The plan must be
based on the public meeting records and existing survey documents,
reports, and other research from Federal agencies, tribal community
colleges, and land grant universities. When completed, the plan must:
(1) Determine available agricultural resources;
(2) Identify specific tribal agricultural resource goals and
objectives;
(3) Establish management objectives for the resources;
(4) Define critical values of the tribe and its members and provide
identified resource management objectives; and
(5) Identify actions to be taken to reach established objectives.
(c) Where the provisions in this subpart are inconsistent with the
Navajo Nation's agricultural resource management plan, the Secretary
may waive the provisions under part 1 of this title, so long as the
waiver does not violate a federal statute or judicial decision or
conflict with the Secretary's trust responsibility under federal law.
Sec. 161.201 Is environmental compliance required?
Actions taken by BIA under this part must comply with the National
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., applicable
provisions of the Council on Environmental Quality, 40 CFR part 1500,
and applicable tribal laws and provisions of the Navajo Nation
Environmental Policy Act CAP-47-95, where the tribal laws and
provisions do not violate a federal or judicial decision or conflict
with the Secretary's trust responsibility under federal law.
Sec. 161.202 How are range units established?
(a) BIA, with the concurrence of the Navajo Nation, will establish
range units on the Navajo Partitioned Lands to provide unified areas
for which range management plans can be developed to improve and
maintain soil and forage resources. Physical land features, watersheds,
drainage patterns, vegetation, soil, resident concentration, problem
areas, historical land use patterns, chapter boundaries, special land
uses and comprehensive land use planning will be considered in the
determination of range unit boundaries.
(b) BIA may modify range unit boundaries with the concurrence of
the Navajo Nation. This may include small and/or isolated portions of
Navajo Partitioned Lands contiguous to Navajo tribal lands in order to
develop more efficient land management.
Sec. 161.203 Are range management plans required?
Range management plans are required. BIA will:
(a) Consult with the Navajo Nation in planning conservation
practices, including grazing control and range restoration activities
for the Navajo Partitioned Lands.
(b) Develop range management plans with the concurrence of the
Navajo Nation.
(c) Approve the range management plan, after concurrence with the
Navajo Nation, and the implementation of the plan may begin
immediately. The plan will address, but is not limited to, the
following issues:
(1) Goals for improving vegetative productivity and diversity;
(2) Stocking rates;
(3) Grazing schedules;
(4) Wildlife management;
(5) Needs assessment for range and livestock improvements;
(6) Schedule for operation and maintenance of existing range
improvements and development for cooperative funded projects;
(7) Cooperation in the implementation of range studies;
(8) Control of livestock diseases and parasites;
(9) Fencing or other structures necessary to implement any of the
other provisions in the range management plan;
(10) Special land uses; and
(11) Water development and management.
Sec. 161.204 How are carrying capacities and stocking rates
established?
(a) BIA, with the concurrence of the Navajo Nation, will prescribe,
review and adjust the carrying capacity of each range unit by
determining the number of livestock, and/or wildlife, that can be
grazed on the Navajo Partitioned Lands without inducing damage to
vegetation or related resources on each range unit and the season or
seasons of use to achieve the objectives of the agricultural resource
management plan and range unit management plan.
(b) BIA, with the concurrence of the Navajo Nation, will establish
the stocking rate of each range or management unit. The stocking rate
will be based on forage production, range utilization, the application
of land management practices, and range improvements in place to
achieve uniformity of grazing under sustained yield management
principles on each range or management unit.
(c) BIA will review the carrying capacity of the grazing units on a
continuing basis and, in consultation with the Grazing Committee and
affected permittees, adjust the stocking rate for each range or
management unit as conditions warrant.
(d) Any adjustments in stocking rates will be applied equally to
each permittee within the management unit requiring adjustment.
Sec. 161.205 How are range improvements treated?
(a) Improvements placed on the Navajo Partitioned Lands will be
considered affixed to the land unless specifically exempted in the
permit. No improvement may be constructed or removed from Navajo
Partitioned Lands without the written consent of BIA and the Navajo
Nation.
(b) Before undertaking an improvement, BIA, Navajo Nation and
permittee will negotiate who will complete and maintain improvements.
The improvement agreement will be reflected in the permit.
Sec. 161.206 What must a permittee do to protect livestock from
exposure to disease?
In accordance with applicable law, permittees must:
(a) Vaccinate livestock;
(b) Treat all livestock exposed to or infected with contagious or
infectious diseases; and
(c) Restrict the movement of exposed or infected livestock.
Sec. 161. 207 What livestock are authorized to graze?
The following livestock are authorized to graze on the Navajo
Partitioned Lands: horses, cattle, sheep, goats, mules, burros,
donkeys, and llamas.
Subpart D--Permit Requirements
Sec. 161.300 When is a permit needed to authorize grazing use?
Unless otherwise provided for in this part, any person or legal
entity, including an independent legal entity owned and operated by the
Navajo Nation, must obtain a permit under this part before using Navajo
Partitioned Land for grazing purposes.
[[Page 64032]]
Sec. 161.301 What will a grazing permit contain?
(a) All grazing permits will contain the following provisions:
(1) Name of permit holder;
(2) Range management plan requirements;
(3) Applicable stocking rate;
(4) Range unit number and description of the permitted area;
(5) Animal identification requirements (i.e. brand, microchip,
freeze brand, earmark, tattoo, etc.);
(6) Term of permit (including beginning and ending dates of the
term allowed, as well as an option to renew, or extend);
(7) A provision stating that the permittee agrees that he or she
will not use, cause, or allow to be used any part of the permitted area
for any unlawful conduct or purpose;
(8) A provision stating that the permit authorizes no other
privilege than grazing use;
(9) A provision stating that no person is allowed to hold a grazing
permit in more than one range unit of the Navajo Partitioned Lands,
unless the customary use area extends beyond the range unit boundary;
(10) A provision reserving a right of entry by BIA and the Navajo
Nation for range survey, inventory and inspection or compliance
purposes;
(11) A provision prohibiting the creation of a nuisance, any
illegal activity, and negligent use or waste of resources;
(12) A provision stating how trespass proceeds are to be
distributed;
(13) A provision stating whether mediation will be used in the
event of a permit violation;
(14) A provision stating that the permittee holds harmless the
United States and the Navajo Nation against all liabilities or costs
relating to the use, handling, treatment, removal, storage,
transportation, or disposal of hazardous materials or the release or
discharge of any hazardous material from the permitted premises that
occur during the permit term, regardless of fault; and
(15) A provision stating that the permit cannot be subdivided once
it has been issued.
(b) Grazing permits will contain any other provision that in the
discretion of BIA with the concurrence of the Navajo Nation is
necessary to protect the land and/or resources, may be added to the
permit.
(c) Grazing permits will contain any special land use authorized
under Sec. 161.503 of this part must be included on the permit.
Sec. 161.302 What restrictions are placed on grazing permits?
Only a grazing permit issued under this part authorizes the grazing
of livestock within the Navajo Partitioned Lands. Grazing permits are
subject to the following restrictions:
(a) Grazing permits should not be issued for less than 2 animal
units (10 sheep units) or exceed 70 animal units (350 sheep units).
However, all grazing permits issued before the adoption of this
regulation will be honored and reissued if the permittee meets the
eligibility and priority criteria found in Sec. 400 of this part, and
only if the carrying capacity and stocking rate as determined under
Sec. Sec. 204 and 403 allows.
(b) A grazing permit will be issued in the name of one individual.
(c) Only two horses will be permitted on a grazing permit.
(d) Grazing permits may contain additional conditions authorized by
Federal law or Navajo Nation law.
(e) A state/tribal brand only identifies the owner of the
livestock, but does not authorize the grazing of any livestock within
the Navajo Partitioned Lands.
(f) A permit cannot be subdivided once it has been issued.
Sec. 161.303 How long is a permit valid?
After its initial issuance, each grazing permit is valid for one
year beginning on the following January 1. All permits will be
automatically renewed annually if the permittee is in compliance with
all applicable laws including tallies and permit requirements.
Sec. 161.304 Must a permit be recorded?
A permit must be recorded by BIA following approval under this
subpart.
Sec. 161.305 When is a decision by BIA regarding a permit effective?
BIA approval of a permit will be effective immediately upon
signature, notwithstanding any appeal, which may be filed under part 2
of this title. Copies of the approved permit will be provided to the
permittee and made available to the Navajo Nation upon request.
Sec. 161.306 When are permits effective?
Unless otherwise provided in the permit, a permit will be effective
on the date on which BIA approves the permit.
Sec. 161.307 When may a permittee commence grazing on Navajo
Partitioned Land?
The permittee may graze on Navajo Partitioned Land on the date
specified in the permit as the beginning date of the term, but not
before BIA approves the permit.
Sec. 161.308 Must permittee comply with standards of conduct if
granted a permit?
Permittees must comply with standards of conduct and are expected
to:
(a) Conduct grazing operations in accordance with the principles of
sustained yield management, agricultural resource management planning,
sound conservation practices, and other community goals as expressed in
Navajo Nation laws, agricultural resource management plans, and similar
sources.
(b) Comply with all applicable laws, ordinances, rules, provisions,
and other legal requirements. Permittee must also pay all applicable
penalties that may be assessed for non-compliance.
(c) Fulfill all financial permit obligations owed to the Navajo
Nation and the United States.
(d) Conduct only those activities authorized by the permit.
Subpart E--Reissuance of Grazing Permits
Sec. 161.400 What are the criteria for reissuing grazing permits?
(a) The Navajo Nation may prescribe eligibility requirements for
grazing allocations within 180 days following the effective date of
this part. BIA will prescribe the eligibility requirements after
expiration of the 180-day period if the Navajo Nation does not
prescribe eligibility requirements, or if satisfactory action is not
taken by the Navajo Nation.
(b) With the written concurrence of the Navajo Nation, BIA will
prescribe the following eligibility requirements, where only those
applicants who meet the following criteria are eligible to receive
permits to graze livestock:
(1) Those who had grazing permits on Navajo Partitioned Lands under
25 CFR part 167 (formerly part 152), and whose permits were canceled on
October 14, 1973;
(2) Those who are listed in the 1974 and 1975 Former Joint Use Area
enumeration;
(3) Those who are current residents on Navajo Partitioned Lands;
and
(4) Those who have a customary use area on Navajo Partitioned
Lands.
(c) Permits reissued to applicants under this section may be
granted by BIA based on the following priority criteria:
(1) The first priority will go to individuals currently over the
age of 65; and
(2) The second priority will go to individuals under the age of 65.
(d) Upon the recommendation of the NPL District Grazing Committee
and
[[Page 64033]]
Resource Committee, BIA or Navajo Nation will have authority to waive
one of the eligibility or priority criteria.
Sec. 161.401 Will new permits be granted after the initial reissuance
of permits?
(a) Following the initial reissuance of permits under Sec.
161.400, the Navajo Nation can grant new permits if:
(1) Additional permits become available; and
(2) The carrying capacity and stocking rates as determined under
Sec. Sec. 161.204 and 161.403 allow.
(b) The Navajo Nation must inform BIA if it grants any permits
under paragraph (a) of this section.
Sec. 161.402 What are the procedures for reissuing permits?
BIA, with the concurrence of the Navajo Nation, will reissue
grazing permits only to individuals that meet the eligibility
requirements in Sec. 161.400. Responsibilities for reissuance of
grazing permits are as follows:
(a) BIA will develop a complete list consisting of all former
permittees whose permits were cancelled and the number of animal units
previously authorized in prior grazing permits. This list will be
provided to the Grazing Committee and Resources Committee for their
review. BIA will also provide the Grazing Committee and Resources
Committee with the current carrying capacity and stocking rate for each
range unit within the Navajo Partitioned Lands, as determined under
Sec. 161.204.
(b) Within 90 days of receipt, the Grazing Committee will review
the list developed under Sec. 161.402(a), and make recommendations to
the Resources Committee for the granting of grazing permits according
to the eligibility and priority criteria in Sec. 161.400.
(c) If the Grazing Committee fails to make its recommendation to
the Resources Committee within 90 days after receiving the list of
potential permittees, BIA will submit its recommendations to the
Resources Committee.
(d) The Resources Committee will review and concur with the list of
proposed permit grantees, and then forward a final list to BIA for the
reissuance of grazing permits. If the Resources Committee does not
concur, the procedures outlined in Sec. 161.800 will govern.
(e) The final determination list of eligible permittees will be
published. Permits will not be issued sooner than 90 days following
publication of the final list.
Sec. 161.403 How are grazing permits allocated within each range
unit?
(a) Initial allocation of the number of animal units authorized in
each grazing permit will be determined by considering the number of
animal units previously authorized in prior grazing permits and the
current authorized stocking rate on a given range unit.
(b) Grazing permit allocations may vary from range unit to range
unit depending on the stocking rate of each unit, the range management
plan, and the number of eligible grazing permittees in the unit.
Subpart F--Modifying A Permit
Sec. 161.500 May permits be transferred, assigned or modified?
(a) Grazing permits may be transferred, assigned, or modified only
as provided in this section. Permits may only be transferred or
assigned as a single permit under Navajo Nation procedures and with the
approval of BIA. Permittees must reside within the same range unit as
the original permittee.
(b) Permits may be transferred, assigned, or modified with the
written consent of the permittee, District Grazing Committee and/or
Resource Committee and approved by BIA.
(c) BIA must record each transfer, assignment, or modification that
it approves under a permit.
Sec. 161.501 When will a permit modification be effective?
BIA approval of a transfer, assignment, or modification under a
permit will be effective immediately, notwithstanding any appeal, which
may be filed under part 2 of this title. Copies of approved documents
will be provided to the permittee and made available to the Navajo
Nation upon request.
Sec. 161.502 Will a special land use require permit modification?
Yes, when the Navajo Nation and BIA approve a special land use, the
grazing permit will be modified to reflect the change in available
forage. If a special land use is inconsistent with grazing activities
authorized in the permit, the special land use area will be withdrawn
from the permit, and grazing cannot take place on that part of the
range unit.
Subpart G--Permit Violations
Sec. 161.600 What permit violations are addressed by this subpart?
This subpart addresses violations of permit provisions other than
trespass. Trespass is addressed under subpart H.
Sec. 161.601 How will BIA monitor permit compliance?
Unless the permit provides otherwise, BIA may enter the range unit
at any reasonable time, without prior notice, to protect the interests
of the Navajo Nation and ensure that the permittee is in compliance
with the operating requirements of the permit.
Sec. 161.602 Will my permit be canceled for non-use?
(a) If a grazing permit is not used by the permittee for a 2-year
period, BIA may cancel the permit upon the recommendation of the
Grazing Committee and with the concurrence of the Resources Committee
under Sec. 161.606(c). Non-use consists of, but is not limited to,
absence of livestock on the range unit, and/or abandonment of a
permittee's grazing permit.
(b) Unused grazing permits or portions of grazing permits that are
set aside for range recovery will not be cancelled for non-use.
Sec. 161.603 Can a permit provide for mediation in the event of a
permit violation or dispute?
A permit may provide for permit disputes or violations to be
resolved with the District Grazing Committee through mediation.
(a) The District Grazing Committee will conduct the mediation
before the Resources Committee or BIA invoke any cancellation remedies.
(b) Conducting the mediation may substitute for permit
cancellation. However, BIA retains the authority to cancel the permit
under Sec. 161.606.
(c) The Resources Committee decision will be final, unless it is
appealed to the Navajo Nation Supreme Court on a question of law. BIA
may not be bound by decisions made in these forums, but BIA will defer
to any ongoing proceedings, as appropriate, in deciding whether to
exercise any of the remedies available to BIA under Sec. 161.606.
Sec. 161.604 What happens if a permit violation occurs?
(a) If the Resources Committee notifies BIA that a specific permit
violation has occurred, BIA will initiate an appropriate investigation
within 5 business days of that notification.
(b) Unless otherwise provided under tribal law, when BIA has reason
to believe that a permit violation has occurred, BIA or the authorized
tribal representative will provide written notice to the permittee
within 5 business days.
[[Page 64034]]
Sec. 161.605 What will a written notice of a permit violation
contain?
The written notice of a permit violation will provide the permittee
with 10 days from the receipt of the written notice to:
(a) Cure the permit violation and notify BIA that the violation is
cured;
(b) Explain why BIA should not cancel the permit;
(c) Request in writing additional time to complete corrective
actions. If additional time is granted, BIA may require that certain
actions be taken immediately; or
(d) Request mediation under Sec. 161.603.
Sec. 161.606 What will BIA do if the permitee doesn't cure a
violation on time?
(a) If the permittee does not cure a violation within the required
time period, or if the violation is not referred to District Grazing
Committee for mediation, BIA will consult with the Navajo Nation, as
appropriate, and determine whether:
(1) The permit may be canceled by BIA under paragraph (c) of this
section and Sec. Sec. 161.607 through 161.608;
(2) BIA may invoke any other remedies available to BIA under the
permit;
(3) The Navajo Nation may invoke any remedies available to them
under the permit; or
(4) The permittee may be granted additional time in which to cure
the violation.
(b) If BIA grants a permittee a time extension to cure a violation,
the permittee must proceed diligently to complete the necessary
corrective actions within a reasonable or specified time from the date
on which the extension is granted.
(c) If BIA cancels the permit, BIA will send the permittee and the
District Grazing Committee a written notice of cancellation within 5
business days of the decision. BIA will also provide actual or
constructive notice of the cancellation to the Navajo Nation, as
appropriate. The written notice of cancellation will:
(1) Explain the grounds for cancellation;
(2) Notify the permittee of the amount of any unpaid fees and other
financial obligations due under the permit;
(3) Notify the permittee of its right to appeal under 25 CFR part 2
of this title, as modified by Sec. 161.607, including the amount of
any appeal bond that must be posted with an appeal of the cancellation
decision; and
(4) Order the permittee to cease grazing livestock on the next
anniversary date of the grazing permit or 180 days following the
receipt of the written notice of cancellation, whichever is sooner.
Sec. 161.607 What appeal bond provisions apply to permit cancellation
decisions?
(a) The appeal bond provisions in Sec. 2.5 of part 2 of this title
will not apply to appeals from permit cancellation decision. Instead,
when BIA decides to cancel a permit, BIA may require the permittee to
post an appeal bond with an appeal of the cancellation decision. The
requirement to post an appeal bond will apply in addition to all of the
other requirements in part 2 of this title.
(b) An appeal bond should be set in an amount necessary to protect
the Navajo Nation against financial losses that will likely result from
the delay caused by an appeal. Appeal bond requirements will not be
separately appealable, but may be contested during the appeal of the
permit cancellation decision.
Sec. 161.608 When will a permit cancellation be effective?
A cancellation decision involving a permit will not be effective
for 30 days after the permittee receives a written notice of
cancellation from BIA. The cancellation decision will remain
ineffective if the permittee files an appeal under Sec. 161.607 and
part 2 of this title, unless the decision is made immediately effective
under part 2. While a cancellation decision is ineffective, the
permittee must continue to comply with the other terms of the permit.
If an appeal is not filed in accordance with Sec. 161.607 and part 2
of this title, the cancellation decision will be effective on the 31st
day after the permittee receives the written notice of cancellation
from BIA.
Sec. 161.609 Can BIA take emergency action if the rangeland is
threatened?
Yes, if a permittee or any other party causes or threatens to cause
immediate, significant and irreparable harm to the Navajo Nation land
during the term of a permit, BIA will take appropriate emergency
action. Emergency action may include trespass proceedings under subpart
H, or judicial action seeking immediate cessation of the activity
resulting in or threatening harm. Reasonable efforts will be made to
notify the Navajo Nation, either before or after the emergency action
is taken.
Sec. 161.610 What will BIA do if livestock is not removed when a
permit expires or is cancelled?
If the livestock is not removed after the expiration or
cancellation of a permit, BIA will treat the unauthorized use as a
trespass. BIA may remove the livestock on behalf of the Navajo Nation,
and pursue any additional remedies available under applicable law,
including the assessment of civil penalties and costs under subpart H.
Subpart H--Trespass
Sec. 161.700 What is trespass?
Under this part, trespass is any unauthorized use of, or action on,
Navajo partitioned grazing lands.
Sec. 161.701 What is BIA's trespass policy?
BIA will:
(a) Investigate accidental, willful, and/or incidental trespass on
Navajo Partitioned Lands;
(b) Respond to alleged trespass in a prompt, efficient manner;
(c) Assess trespass penalties for the value of products used or
removed, cost of damage to the Navajo Partitioned Lands, and
enforcement costs incurred as a consequence of the trespass; and
(d) Ensure, to the extent possible, that damage to Navajo
Partitioned Lands resulting from trespass is rehabilitated and
stabilized at the expense of the trespasser.
Sec. 161.702 Who will enforce this subpart?
(a) BIA enforces the provisions, the Navajo Nation adopts the
provisions, and the Navajo Nation will have concurrent jurisdiction to
enforce this subpart. Additionally, if the Navajo Nation so requests,
BIA will defer to tribal prosecution of trespass on Navajo Partitioned
Lands.
(b) Nothing in this subpart will be construed to diminish the
sovereign authority of the Navajo Nation with respect to trespass.
Notification
Sec. 161.703 How are trespassers notified of a trespass
determination?
(a) Unless otherwise provided under tribal law, when BIA has reason
to believe that a trespass on Navajo Partitioned Lands has occurred,
BIA or the authorized tribal representative will provide written notice
within 5 business days to:
(1) The alleged trespasser;
(2) The possessor of trespass property; and
(3) Any known lien holder.
(b) The written notice under paragraph (a) of this section will
include the following:
(1) The basis for the trespass determination;
(2) A legal description of where the trespass occurred;
(3) A verification of ownership of unauthorized property (e.g.,
brands in the State Brand Book for cases of livestock trespass, if
applicable);
[[Page 64035]]
(4) Corrective actions that must be taken;
(5) Time frames for taking the corrective actions;
(6) Potential consequences and penalties for failure to take
corrective action; and
(7) A statement that unauthorized livestock or other property may
not be removed or disposed of unless authorized by BIA under paragraph
(b)(4) of this section.
(c) If BIA determines that the alleged trespasser or possessor of
trespass property is unknown or refuses delivery of the written notice,
a public trespass notice will be posted at the tribal community
building, U.S. Post Office, and published in the local newspaper
nearest to the Indian agricultural lands where the trespass is
occurring.
(d) Trespass notices under this subpart are not subject to appeal
under part 2 of this title.
Sec. 161.704 What can a permittee do if they receive a trespass
notice?
The trespasser will within the time frame specified in the notice:
(a) Comply with the ordered corrective actions; or
(b) Contact BIA in writing to explain why the trespass notice is in
error. The trespasser may contact BIA by telephone but any explanation
of trespass must be provided be in writing. If BIA determines that a
trespass notice was issued in error, the notice will be withdrawn.
Sec. 161.705 How long will a written trespass notice remain in
effect?
A written trespass notice will remain in effect for the same action
identified in that written notice for a period of one year from the
date of receipt of the written notice by the trespasser.
Actions
Sec. 161.706 What actions does BIA take against trespassers?
If the trespasser fails to take the corrective action as specified,
BIA may take one or more of the following actions, as appropriate:
(a) Seize, impound, sell or dispose of unauthorized livestock or
other property involved in the trespass. BIA may keep the property
seized for use as evidence.
(b) Assess penalties, damages, and costs under Sec. 161.712.
Sec. 161.707 When will BIA impound unauthorized livestock or other
property?
BIA will impound unauthorized livestock or other property under the
following conditions:
(a) Where there is imminent danger of severe injury to growing or
harvestable crop or destruction of the range forage.
(b) When the known owner or the owner's representative of the
unauthorized livestock or other property refuses to accept delivery of
a written notice of trespass and the unauthorized livestock or other
property are not removed within the period prescribed in the written
notice.
(c) Any time after 5 days of providing notice of impoundment if the
trespasser failed to correct the trespass.
Sec. 161.708 How are trespassers notified of impoundments?
(a) If the trespass is not corrected in the time specified in the
initial trespass notice, BIA will send written notice of its intent to
impound unauthorized livestock or other property to:
(1) The unauthorized livestock or property owner or representative;
and
(2) Any known lien holder of the unauthorized livestock or other
property.
(b) If BIA determines that the owner of the unauthorized livestock
or other property or the owner's representative is unknown or refuses
delivery of the written notice, a public notice of intent to impound
will be posted at the tribal community building, U.S. Post Office, and
published in the local newspaper nearest to the Indian agricultural
lands where the trespass is occurring.
(c) After BIA has given notice as described in Sec. 161.707,
unauthorized livestock or other property will be impounded without any
further notice.
Sec. 161.709 What happens after unauthorized livestock or other
property are impounded?
Following the impoundment of unauthorized livestock or other
property, BIA will provide notice that the impounded property will be
sold as follows:
(a) BIA will provide written notice of the sale to the owner, the
owner's representative, and any known lien holder. The written notice
must include the procedure by which the impounded property may be
redeemed before the sale.
(b) BIA will provide public notice of sale of impounded property by
posting at the tribal community building, U.S. Post Office, and
publishing in the local newspaper nearest to the Indian agricultural
lands where the trespass is occurring. The public notice will include a
description of the impounded property, and the date, time, and place of
the public sale. The sale date must be at least 5 days after the
publication and posting of notice.
Sec. 161.710 How can impounded livestock or other property be
redeemed?
Impounded livestock or other property may be redeemed by submitting
proof of ownership and paying all penalties, damages, and costs under
Sec. 161.712 and completing all corrective actions identified by BIA
under Sec. 61.704.
Sec. 161.711 How will BIA sell impounded livestock or other property?
(a) Unless the owner or known lien holder of the impounded
livestock or other property redeems the property before the time set by
the sale, by submitting proof of ownership and settling all obligations
under Sec. Sec. 161.704 and 161.712, the property will be sold by
public sale to the highest bidder.
(b) If a satisfactory bid is not received, the livestock or
property may be re-offered for sale, returned to the owner, condemned
and destroyed, or otherwise disposed of.
(c) BIA will give the purchaser a bill of sale or other written
receipt evidencing the sale.
Penalties, Damages, and Costs
Sec. 161.712 What are the penalties, damages, and costs payable by
trespassers?
Trespassers on Navajo Partitioned Lands must pay the following
penalties and costs:
(a) Collection of the value of the products illegally used or
removed plus a penalty of double their values;
(b) Costs associated with any damage to Navajo Partitioned Lands
and/or property;
(c) The costs associated with enforcement of the provisions,
including field examination and survey, damage appraisal, investigation
assistance and reports, witness expenses, demand letters, court costs,
and attorney fees;
(d) Expenses incurred in gathering, impounding, caring for, and
disposal of livestock in cases which necessitate impoundment under
Sec. 161.707; and
(e) All other penalties authorized by law.
Sec. 161.713 How will BIA determine the amount of damages to Navajo
Partitioned Lands?
(a) BIA will determine the damages by considering the costs of
rehabilitation and re-vegetation, loss of future revenue, loss of
profits, loss of productivity, loss of market value, damage to other
resources, and other factors.
(b) BIA will determine the value of forage or crops consumed or
destroyed based upon the average rate received per
[[Page 64036]]
month for comparable property or grazing privileges, or the estimated
commercial value or replacement costs of the products or property.
(c) BIA will determine the value of the products or property
illegally used or removed based upon a valuation of similar products or
property.
Sec. 161.714 How will BIA determine the costs associated with
enforcement of the trespass?
Costs of enforcement may include detection and all actions taken by
us through prosecution and collection of damages. This includes field
examination and survey, damage appraisal, investigation assistance and
report preparation, witness expenses, demand letters, court costs,
attorney fees, and other costs.
Sec. 161.715 What will BIA do if a trespasser fails to pay penalties,
damages and costs?
This section applies if a trespasser fails to pay the assessed
penalties, damages, and costs as directed. Unless otherwise provided by
applicable Navajo Nation law, BIA will:
(a) Refuse to issue the permittee a permit for use, development, or
occupancy of Navajo Partitioned Lands; and
(b) Forward the case for appropriate legal action.
Sec. 161.716 How are the proceeds from trespass distributed?
Unless otherwise provided by Navajo Nation law:
(a) BIA will treat any amounts recovered under Sec. 161.712 as
proceeds from the sale of agricultural property from the Navajo
Partitioned Lands upon which the trespass occurred.
(b) Proceeds recovered under Sec. 161.712 may be distributed to:
(1) Repair damages of the Navajo Partitioned Lands and property; or
(2) Reimburse the affected parties, including the permittee for
loss due to the trespass, as negotiated and provided in the permit.
(c) Reimburse for costs associated with the enforcement.
(d) If any money is left over after the distribution of the
proceeds described in paragraph (b) of this section, BIA will return it
to the trespasser or, where the owner of the impounded property cannot
be identified within 180 days, the net proceeds of the sale will be
deposited into the appropriate Navajo Nation account or transferred to
the Navajo Nation under applicable tribal law.
Sec. 161.717 What happens if BIA does not collect enough money to
satisfy the penalty?
BIA will send written notice to the trespasser demanding immediate
settlement and advising the trespasser that unless settlement is
received within 5 business days from the date of receipt, BIA will
forward the case for appropriate legal action. BIA may send a copy of
the notice to the Navajo Nation, permittee, and any known lien holders.
Subpart I--Concurrence/Appeals/Amendments
Sec. 161.800 How does the Navajo Nation to provide concurrence to
BIA?
(a) Actions taken by BIA under this part require concurrence of the
Navajo Nation under the Settlement Act.
(b) For any action requiring the concurrence of the Resource
Committee, the following procedures will apply:
(1) Unless a longer time is specified in a particular section, or
unless BIA grants an extension of time, the Resources Committee will
have 45 days to review and concur with the proposed action;
(2) If the Resources Committee concurs in writing with all or part
of BIA proposed action, the action or a portion of it may be
immediately implemented;
(3) If the Resources Committee does not concur with all or part of
the proposed action within the time prescribed in paragraph (b)(1) of
this section, BIA will submit to the Resources Committee a written
declaration of non-concurrence. BIA will then notify the Resources
Committee in writing of a formal hearing to be held not sooner than 30
days from the date of the non-concurrence declaration;
(4) The formal hearing on non-concurrence will permit the
submission of written evidence and argument concerning the proposal.
BIA will take minutes of the hearing. Following the hearing, BIA may
amend, alter, or otherwise change the proposed action. If, following a
hearing, BIA alters or amends portions of the proposed plan of action,
BIA will submit the altered or amended portions of the plan to the
Resources Committee for its concurrence; and
(5) If the Resources Committee fails or refuses to give its
concurrence to the proposal, BIA may implement the proposal only after
issuing a written order, based upon findings of fact, that the proposed
action is necessary to protect the land under the Settlement Act and
the Agricultural Act.
Sec. 161.801 May decisions under this part be appealed?
(a) Appeals of BIA decisions issued under this part may be taken in
accordance with procedures set out in part 2 of this title.
(b) All appeals of decisions by the Grazing Committee and Resource
Committee will be forwarded to the appropriate hearing body of the
Navajo Nation.
Sec. 161.802 How will the Navajo Nation recommend amendments to this
part?
The Resources Committee will have final authority on behalf of the
Navajo Nation to approve amendments to the Navajo Partitioned Lands
grazing provisions, upon the recommendation of the Grazing Committee
and the Navajo-Hopi Land Commission, and the concurrence of BIA.
[FR Doc. 03-28320 Filed 11-6-03; 4:32 pm]