Native American Consultation in Resource Development on Federal Lands

• Publication year: 2002
• Pages: 113

31 Colo.Law. 113 Colorado Lawyer 2002.

2002, January, Pg. 113. Native American Consultation in Resource Development on Federal Lands

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113

Vol. 31, No. 1, Pg. 113

The Colorado Lawyer
January 2002
Vol. 31, No. 1 [Page 113]

Specialty Law Columns
Natural Resource and Environmental Notes
Native American Consultation in Resource Development on Federal Lands
by Connie Rogers

Natural resource companies must comply with myriad laws regulations, and procedures regarding Native American interests on federal lands. This article discusses how complex cultural differences can make this compliance process time-consuming, frustrating and expensive for all involved

This month's article was written by Connie Rogers Denver, an associate at Holme, Roberts &

Owen llp - (303) 861-7000.

Mining companies and others developing natural resources on federal lands must increasingly address the effects of such development on Native Americans and North American Indian tribes. Numerous federal statutes and regulations require federal agencies to consider the effects of projects on public lands on Native American culture and religion. These laws compel federal agencies to consult with tribes, and to investigate and consider their concerns before undertaking projects on federal lands.

The difficulty in achieving a consensus on the use of public lands is exacerbated by fundamental differences in the way much of Native America and the predominant culture view the world. At the risk of being overly simplistic,1 the European-derived dominant culture emphasizes defined property rights and separation of the secular from the religious. Native Americans, on the other hand, generally make no distinction between the sacred and the secular. They tend to hold a radically different view of private and collective property rights, which emphasizes place-based religions. Moreover, for both protective and religious reasons, Native Americans usually have a profound need for secrecy about their beliefs and sacred sites.

Even with resource-friendly tribes, cultural differences may create challenges in reaching agreements on the use of federal lands. Furthermore, where tribes are interested in blocking development projects on public lands, various federal statutes provide effective vehicles for extended debate and delay. This article focuses on requirements for "consultation," outlining this rather amorphous process and identifying concerns and pitfalls for both resource companies and tribes.

Two Solicitors' Opinions: The Imperial Project

Glamis Gold Ltd.'s Imperial Project in the California Desert Conservation Area, a proposed open pit gold mine, provides a glimpse of uncertainty and delay in the review of cultural issues under various federal requirements. The proposed mine is located near the Quechan Tribe's reservation. It is in undisturbed ground surrounded by desert tortoise habitat, and a wilderness area. The area has been extensively mined.

Glamis filed a proposed plan of operations with the Bureau of Land Management ("BLM") for an open pit gold mine in Imperial County, California in 1994. Two draft environmental impact statements ("EIS") that generally favored approval of the Glamis plan were released in 1996 and 1997. In 1999, the BLM received comments from the Advisory Council on Historic Preservation ("Advisory Council"), which recommended that the BLM "take whatever legal means necessary to deny the proposal for the project" because of alleged degradation of "the sacred and historic values" of the area.2

After receiving the Advisory Council's recommendations, the BLM requested an opinion from the Solicitor of the U.S. Department of the Interior ("Solicitor"). Based on justification from that Solicitor's opinion3 ("1999 Opinion") and new BLM regulations issued in November 2000 that regulate hardrock mining on federal lands4 ("3809 Regulations"), on January 19, 2001, Secretary of the Interior Bruce Babbitt denied the Glamis plan of operations on the grounds that the plan would result in "undue impairment" to the public lands.

The 1999 Opinion laid the groundwork for both the new 3809 Regulations and the Imperial Project denial by revising (and some say expanding) the definition of "unnecessary or undue degradation" to include activities that would result in "substantial irreparable harm" to significant scientific, cultural or environmental resource values."5 [Emphasis added.] This interpretation gave the BLM authority to deny a mining plan of operations on federal lands based on its effects on Native American religious practices, cultural activities, and values.6

On October 23, 2001, the new Solicitor took the almost unprecedented action of rescinding the 1999 Opinion, effectively saying that it was contrary to law.7 The next week, the Department of the Interior again issued revised 3809 Regulations, which removed the "substantial irreparable harm" standard.8 In addition, on November 23, 2001, Secretary of the Interior Gale Norton vacated the Record of Decision, allowing permitting to begin once again on the Imperial Project.9

The Imperial Project is an extreme example of protracted cultural conflict over the use of public lands. Additionally, the 1999 Opinion and 3809 Regulations only apply to hardrock mining. However, most of the federal laws and regulations at issue in the Imperial Project permitting review also apply to other activities on federal lands, especially natural resource development. A review of federal land regulations may help to emphasize the complexity of the cultural conflict issue.

Federal Land Laws

Requirements for consideration of or consultations regarding cultural resources and Native American concerns about federal actions on federal lands appear in ten different federal statutes and two executive orders, as well as in numerous agency regulations, memoranda, guidelines, bulletins, manuals, handbooks, and interagency programmatic agreements. The status of the subject lands, identity of interested tribes, and identity of agencies with jurisdiction over the subject lands dictate which statutes, regulations, and agency guidelines come into play. By far, the most important governing statute is the National Historic Preservation Act ("NHPA").10 Most pertinent to development issues is Section 106 of NHPA ("Section 106"), which sets forth the consultation requirements for historic and "traditional cultural properties" ("TCPs").

Almost all of the federal statutes that regulate federal lands address cultural or historic resources. In addition to NHPA, these include the Federal Land Policy and Management Act ("FLPMA");11 National Forest Management Act ("NFMA");12 Surface Mining Control and Reclamation Act ("SMCRA");13 Mineral Leasing Act of 1920;14 General Mining Law of 1872;15 National Environmental Policy Act of 1969 ("NEPA");16 American Indian Religious Freedom Act ("AIRFA");17 Native American Graves Protection and Repatriation Act ("NAGPRA");18 and Archeological Resources Protection Act ("ARPA").19 In addition, executive orders on sacred sites20 and Native American government-to-government consultation21 are used to frame the relationship between tribes and federal agencies concerning the evaluation of Native American cultural concerns on federal lands.

Executive Order on Indian
Sacred Sites

The Executive Order on Indian Sacred Sites ("Sacred Site Order") requires that in managing federal lands, a federal agency must: (1)accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners (2)avoid adversely affecting the physical integrity of sacred sites; and (3)maintain the confidentiality of such sites. However, sacred sites may be protected only as "permitted by law," to the "extent...