[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4288 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 4288

  To establish the Badger-Two Medicine Cultural Heritage Area in the 
               State of Montana, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 22, 2020

  Mr. Tester introduced the following bill; which was read twice and 
       referred to the Committee on Energy and Natural Resources

_______________________________________________________________________

                                 A BILL


 
  To establish the Badger-Two Medicine Cultural Heritage Area in the 
               State of Montana, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Badger-Two Medicine Protection 
Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Cultural heritage area.--The term ``Cultural Heritage 
        Area'' means the Badger-Two Medicine Cultural Heritage Area 
        established by section 5(a).
            (2) Existing use.--The term ``existing use'' means a use 
        that is occurring within the Cultural Heritage Area as of the 
        date of enactment of this Act.
            (3) Management plan.--The term ``management plan'' means 
        the management plan for the Cultural Heritage Area required by 
        section 5(d)(1).
            (4) Map.--The term ``map'' means the map entitled ``Badger-
        Two Medicine Cultural Heritage Area Map'' and dated July 21, 
        2020.
            (5) Native knowledge.--The term ``Native knowledge'' has 
        the meaning given the term in section 219.19 of title 36, Code 
        of Federal Regulations (as in effect on the date of enactment 
        of this Act).
            (6) New use.--
                    (A) In general.--The term ``new use'' means--
                            (i) a use that--
                                    (I) involves a surface disturbance; 
                                and
                                    (II) is not occurring within the 
                                Cultural Heritage Area as of the date 
                                of enactment of this Act; or
                            (ii) an existing use that is being 
                        modified--
                                    (I) to create a surface 
                                disturbance; or
                                    (II) to significantly expand or 
                                alter impacts on the land, water, air, 
                                fish, wildlife, or cultural resources 
                                of the Cultural Heritage Area.
                    (B) Exclusion.--The term ``new use'' does not 
                include a use that is--
                            (i) determined by the Secretary not to, 
                        individually or cumulatively, have a 
                        significant effect on the human environment;
                            (ii) necessary to maintain a road, trail, 
                        structure, or facility within the Cultural 
                        Heritage Area in existence as of the date of 
                        enactment of this Act; or
                            (iii) carried out to comply with the 
                        Endangered Species Act of 1973 (16 U.S.C. 1531 
                        et seq.).
            (7) Secretary.--The term ``Secretary'' means the Secretary 
        of Agriculture.
            (8) State.--The term ``State'' means the State of Montana.
            (9) Tribal business council.--The term ``Tribal Business 
        Council'' means the Blackfeet Tribal Business Council.
            (10) Tribe.--The term ``Tribe'' means the Blackfeet Nation.

SEC. 3. FINDINGS.

    Congress finds that--
            (1) the Badger-Two Medicine is sacred land, a living 
        cultural landscape, a hunting ground, a refuge, a wildlife 
        sanctuary, a place of refuge for wild nature, and an important 
        part of both Tribal and non-Tribal community values;
            (2) the Badger-Two Medicine is a stronghold for wild 
        nature, isolated from and unmarred by development, where 
        natural processes continue to function and relatively uncommon 
        plant and animal communities continue to exist;
            (3) the people of the Tribe have been present in the 
        Badger-Two Medicine area for time immemorial, using the plant, 
        mineral, and animal resources and landforms of that area for 
        sustenance and cultural, medicinal, and ceremonial activities, 
        purposes for which the people of the Tribe continue to use that 
        area today;
            (4) a community of Tribal and non-Tribal people have used 
        the Badger-Two Medicine for multiple generations for hunting, 
        fishing, camping, horsepacking, and wilderness solitude, 
        purposes for which the community continues to use the area 
        today;
            (5) the Badger-Two Medicine contains--
                    (A) several important headwater streams of the 
                Missouri River basin, which provide critical clean 
                water for ecological, agricultural, and domestic 
                purposes; and
                    (B) abundant fish and wildlife, spectacular natural 
                scenery, and outstanding recreational opportunities;
            (6) the Badger-Two Medicine provides important ecological 
        connectivity to Glacier National Park, the Bob Marshall 
        Wilderness Complex, the Blackfeet Indian Reservation, and other 
        public lands;
            (7) through treaties and agreements with the Federal 
        Government, the Tribe retains rights to conduct various 
        activities within the Badger-Two Medicine region; and
            (8) the establishment of the Badger-Two Medicine Cultural 
        Heritage Area is vital to the continuation and revitalization 
        of the Blackfeet culture, while continuing to serve the 
        heritage of the broader public as a place of recreation, 
        traditional use, and sanctuary.

SEC. 4. PURPOSES.

    The purposes of this Act are--
            (1) to protect the cultural, ecological, scenic, and 
        recreational resources of the Badger-Two Medicine area for the 
        benefit, use, and enjoyment of present and future generations;
            (2) to permanently protect the cultural values, attributes, 
        and integrity of the Badger-Two Medicine Traditional Cultural 
        District;
            (3) to protect the ability of the Tribe--
                    (A) to exercise their treaty rights; and
                    (B) to enhance the opportunity for the Blackfeet 
                people to continue to use the Badger-Two Medicine area, 
                as they have since time immemorial;
            (4) to protect the ability of Tribal and non-Tribal people 
        to use the Badger-Two Medicine area for traditional activities, 
        including hunting, fishing, hiking, horsepacking, and camping, 
        as they have for generations;
            (5)(A) to protect and enhance the ecological integrity of 
        the Badger-Two Medicine, including fish and wildlife habitat; 
        and
            (B) to ensure that the Badger-Two Medicine area continues 
        to serve as an ecological corridor connecting adjacent lands;
            (6) to maintain the water quality and free-flowing 
        character of the rivers and streams within the Badger-Two 
        Medicine area; and
            (7) to establish a management framework for the Badger-Two 
        Medicine area that recognizes--
                    (A) the treaty rights of the Tribe; and
                    (B) the historical and contemporary connection of 
                the Tribe with the natural and cultural world of the 
                area.

SEC. 5. BADGER-TWO MEDICINE CULTURAL HERITAGE AREA.

    (a) Establishment.--Subject to valid existing rights, there is 
established the Badger-Two Medicine Cultural Heritage Area in the 
State.
    (b) Area Included.--The Cultural Heritage Area shall consist of 
127,447 acres of Federal land managed by the Forest Service, as 
generally depicted on the map.
    (c) Purposes.--The purposes of the Cultural Heritage Area are--
            (1) to preserve for the benefit and enjoyment of present 
        and future generations the cultural, ecological, scenic, and 
        recreational values of the Cultural Heritage Area; and
            (2) to enable the people of the Tribe to continue to carry 
        out traditional cultural practices in the Cultural Heritage 
        Area.
    (d) Management Plan.--
            (1) In general.--Not later than 3 years after the date of 
        enactment of this Act and in accordance with paragraph (2), the 
        Secretary shall develop, as an amendment to the land and 
        resource management plan for the Helena-Lewis and Clark 
        National Forest, a comprehensive plan for the long-term 
        protection and management of the Cultural Heritage Area.
            (2) Requirements.--In developing the management plan, the 
        Secretary shall--
                    (A) consult with--
                            (i) appropriate State, Tribal, and local 
                        governmental entities;
                            (ii) the Tribe;
                            (iii) the Badger-Two Medicine Advisory 
                        Council established by section 7(a); and
                            (iv) members of the public;
                    (B) at the request of the Tribe, include the Tribe 
                as a cooperating agency in the development of the 
                management plan;
                    (C) incorporate Native knowledge into the 
                management plan to the maximum extent practicable;
                    (D) include public education and interpretation 
                regarding--
                            (i) the cultural significance of the 
                        Badger-Two Medicine region to the Tribe; and
                            (ii) traditional uses and place names 
                        within the region; and
                    (E) provide for recreational opportunities to occur 
                within the Cultural Heritage Area, including hiking, 
                fishing, hunting, horseback riding, and camping.
            (3) Incorporation of existing plan.--In developing the 
        management plan, to the extent consistent with this section, 
        the Secretary may incorporate any provision of the land and 
        resource management plan for the Helena-Lewis and Clark 
        National Forest.
    (e) Management.--
            (1) In general.--The Secretary shall manage the Cultural 
        Heritage Area--
                    (A) in a manner that conserves, protects, and 
                enhances the resources of the Cultural Heritage Area; 
                and
                    (B) in accordance with--
                            (i) the laws (including regulations) and 
                        rules applicable to the National Forest System;
                            (ii) this Act; and
                            (iii) any other applicable laws (including 
                        regulations).
            (2) Uses.--The Secretary shall only allow such uses of the 
        Cultural Heritage Area that the Secretary determines, in 
        consultation with the Tribe, would further the purposes 
        described in subsection (c).
    (f) Prohibitions.--Subject to valid existing rights, the following 
activities shall be prohibited on National Forest System land within 
the Cultural Heritage Area:
            (1) Construction of new or temporary roads, except 
        temporary roads necessary to protect public health and safety.
            (2) The use of motorized or mechanized vehicles, except--
                    (A) for administrative purposes authorized in 
                relation to an existing permit, agreement, or lease; or
                    (B) to respond to an emergency.
            (3) Commercial timber harvest.
            (4) Construction of permanent structures, except as 
        necessary to meet minimum requirements for the administration 
        of the Cultural Heritage Area (including pursuant to special 
        use permits and leases).
    (g) Vegetation Management.--Nothing in this section prevents the 
Secretary from conducting noncommercial vegetation management projects 
within the Cultural Heritage Area--
            (1) subject to--
                    (A) such reasonable regulations, policies, and 
                practices as the Secretary determines to be 
                appropriate; and
                    (B) all applicable laws (including regulations); 
                and
            (2) in a manner consistent with the purposes described in 
        subsection (c).
    (h) Grazing.--The Secretary shall permit grazing within the 
Cultural Heritage Area, if established on the date of enactment of this 
Act--
            (1) subject to--
                    (A) such reasonable regulations, policies, and 
                practices as the Secretary determines appropriate; and
                    (B) all applicable laws; and
            (2) in a manner consistent with the purposes described in 
        subsection (c).
    (i) Wildfire.--Wildfire suppression within the Cultural Heritage 
Area shall be conducted--
            (1) in a manner consistent with the purposes described in 
        subsection (c); and
            (2) using such means as the Secretary determines to be 
        appropriate.
    (j) Native American Cultural and Religious Uses.--
            (1) In general.--Nothing in this section diminishes any 
        rights of the Tribe regarding access to the Cultural Heritage 
        Area for Tribal activities, including spiritual, cultural, and 
        traditional food-gathering activities.
            (2) Native american uses and interests.--
                    (A) Access and use.--In accordance with applicable 
                law, the Secretary shall ensure access to the Cultural 
                Heritage Area by members of the Tribe for traditional 
                cultural purposes.
                    (B) Temporary closure.--
                            (i) In general.--In carrying out 
                        subparagraph (A), the Secretary, on request of 
                        the Tribe, may temporarily close to the general 
                        public use of one or more specific portions of 
                        the Cultural Heritage Area for the purpose of 
                        protecting the privacy of traditional cultural 
                        activities in the Cultural Heritage Area by 
                        members of the Tribe.
                            (ii) Limited effect.--A closure under 
                        clause (i) shall be made--
                                    (I) to affect the smallest 
                                practicable area; and
                                    (II) for the minimum period of time 
                                necessary for the purpose described in 
                                that clause.
                    (C) Purpose of access.--Access described in 
                subparagraph (A) shall be consistent with the purpose 
                and intent of Public Law 95-341 (42 U.S.C. 1996) 
                (commonly known as the ``American Indian Religious 
                Freedom Act'') and other applicable laws.
    (k) Adjacent Management.--
            (1) In general.--The designation of the Cultural Heritage 
        Area shall not create a protective perimeter or buffer zone 
        around the Cultural Heritage Area.
            (2) Effect.--The fact that activities or uses can be seen 
        or heard from areas within the Cultural Heritage Area shall not 
        preclude the conduct of the activities or uses outside the 
        boundary of the Cultural Heritage Area.
    (l) Law Enforcement.--The Secretary, in coordination with the 
Tribe, shall ensure adequate law enforcement presence to maintain the 
integrity of the Cultural Heritage Area.
    (m) Cooperative Agreements.--The Secretary may enter into 
cooperative agreements with the Tribe to further the protection, 
management, or public interpretation of the Cultural Heritage Area.
    (n) Water Resource Facilities.--
            (1) Definitions.--In this subsection:
                    (A) Reservation.--The term ``Reservation'' means 
                the Blackfeet Indian Reservation located in the State.
                    (B) Water resource facility.--The term ``water 
                resource facility'' means a dam, irrigation or pumping 
                facility, reservoir, water conservation works, 
                aqueduct, canal, ditch, pipeline, well, hydropower 
                project, transmission or other ancillary facility of a 
                hydropower project, and other water diversion, storage, 
                or carriage structure.
            (2) Prohibition on new water resource facilities.--After 
        the date of enactment of this Act, the President or any other 
        officer, employee, or agent of the United States shall not 
        fund, assist, authorize, or issue a license or permit for the 
        development of any new water resource facility within the 
        Cultural Heritage Area.
            (3) Effect.--Nothing in this subsection prevents--
                    (A) the development, maintenance, or operation of 
                any water resource facility located on--
                            (i) the Reservation;
                            (ii) Federal land outside the Cultural 
                        Heritage Area; or
                            (iii) non-Federal land; or
                    (B) the maintenance or repair of any water resource 
                facility within the Cultural Heritage Area in existence 
                on the date of enactment of this Act.
    (o) Map and Legal Description.--
            (1) In general.--As soon as practicable after the date of 
        enactment of this Act, the Secretary shall submit a map and a 
        legal description of the Cultural Heritage Area to--
                    (A) the Committee on Energy and Natural Resources 
                of the Senate; and
                    (B) the Committee on Natural Resources of the House 
                of Representatives.
            (2) Force of law.--The map and legal description submitted 
        under paragraph (1) shall have the same force and effect as if 
        included in this section, except that the Secretary may correct 
        typographical errors in the map and legal description.
            (3) Public availability.--The map and legal description 
        submitted under paragraph (1) shall be on file and available 
        for public inspection in the appropriate offices of the Forest 
        Service.

SEC. 6. TRIBAL COORDINATION.

    (a) Consultation.--
            (1) In general.--The Secretary shall consult with the Tribe 
        not less than twice each year, unless otherwise mutually 
        agreed, regarding--
                    (A) the protection, preservation, and management of 
                the Cultural Heritage Area;
                    (B) proposed new uses;
                    (C) whether management is compatible with the 
                values and attributes of the Badger-Two Medicine 
                Traditional Cultural District; and
                    (D) management actions within the Cultural Heritage 
                Area necessary--
                            (i) to fulfill the purposes of this Act;
                            (ii) to ensure management decisions reflect 
                        Native knowledge; and
                            (iii) to protect the off-reservation rights 
                        of the Tribe.
            (2) Process for consultation.--
                    (A) Existing regulations.--The Secretary shall 
                carry out consultation under this section in accordance 
                with this Act and chapter 1560 of the Forest Service 
                Manual (or successor regulations).
                    (B) Schedule.--As soon as practicable after the 
                date of enactment of this Act, the Secretary shall 
                establish, in consultation with the Tribal Business 
                Council, a schedule for consultation.
                    (C) Initiation.--To initiate consultation, the 
                Secretary shall request, in writing, to consult with 
                the Tribal Business Council.
                    (D) In-person consultation.--The Secretary shall 
                carry out consultations, in person, with the Tribal 
                Business Council.
                    (E) Summary.--Within 30 days after the completion 
                of each consultation, the Secretary shall send a 
                written summary of the consultation to the Tribal 
                Business Council.
                    (F) Reopening consultation.--If the Tribal Business 
                Council disagrees with the summary of consultation, the 
                Tribal Business Council may, within 30 days, request to 
                reopen the consultation.
            (3) Tribal management proposals.--The Secretary shall--
                    (A) consider proposals for management actions 
                within the Cultural Heritage Area submitted by the 
                Tribe; and
                    (B) respond to the Tribe, in writing, within 90 
                days if a management action proposed by the Tribe is 
                rejected.
    (b) New Uses.--
            (1) In general.--
                    (A) Request for consent after consultation.--
                            (i) Denial of consent.--If the Tribe denies 
                        consent for a new use within the Cultural 
                        Heritage Area within 30 days after completion 
                        of the consultation process under subsection 
                        (a), the Secretary shall not proceed with the 
                        new use.
                            (ii) Granting of consent.--If the Tribe 
                        consents to a new use within the Cultural 
                        Heritage Area in writing or fails to respond 
                        within 30 days after completion of the 
                        consultation process under subsection (a), the 
                        Secretary may proceed with the notice and 
                        comment process and the environmental analysis 
                        with respect to the new use.
                    (B) Final request for consent.--
                            (i) Request.--Before the Secretary signs a 
                        record of decision or decision notice for a 
                        proposed new use within the Cultural Heritage 
                        Area, the Secretary shall again request the 
                        consent of the Tribe.
                            (ii) Denial of consent.--If the Tribe 
                        denies consent for a new use within 30 days 
                        after receipt of the proposed record of 
                        decision or decision notice under clause (i), 
                        the new use shall not be authorized.
            (2) Public involvement.--With respect to a proposed new use 
        within the Cultural Heritage Area, the public shall be provided 
        notice of--
                    (A) the purpose and need for the proposed new use;
                    (B) the role of the Tribe in the decisionmaking 
                process; and
                    (C) the position of the Tribe on the proposal.
    (c) Emergencies and Emergency Closure Orders.--
            (1) Authority.--The Secretary shall retain the authority of 
        the Secretary to manage emergency situations within the 
        Cultural Heritage Area--
                    (A) to provide for public safety; and
                    (B) by issuing emergency closure orders in the 
                Cultural Heritage Area subject to applicable law.
            (2) Notice.--The Secretary shall notify the Tribe regarding 
        emergencies, public safety issues, and emergency closure orders 
        that apply to the Cultural Heritage Area as soon as 
        practicable.

SEC. 7. BADGER-TWO MEDICINE ADVISORY COUNCIL.

    (a) Establishment.--Not later than 180 days after the date of 
enactment of this Act, the Secretary shall establish an advisory 
council, to be known as the ``Badger-Two Medicine Advisory Council'' 
(referred to in this section as the ``Council'').
    (b) Duties.--The Council shall advise the Secretary with respect to 
the preparation and implementation of the management plan.
    (c) Applicable Law.--The Council shall be subject to the Federal 
Advisory Committee Act (5 U.S.C. App.).
    (d) Members.--The Council shall include 9 members, to be appointed 
by the Secretary, with backgrounds that reflect--
            (1) the purposes for which the Cultural Heritage Area was 
        established; and
            (2) the interests of the stakeholders that are affected by 
        the planning and management of the Cultural Heritage Area.
    (e) Representation.--
            (1) In general.--The Secretary shall ensure that the 
        membership of the Council is fairly balanced in terms of the 
        points of view represented and the functions to be performed by 
        the Council.
            (2) Tribal representation.--The Council shall include a 
        representative of the Tribe, who shall be recommended to the 
        Secretary by the Tribal Business Council.
    (f) Duration.--The Council shall terminate on the date that is 1 
year after the date on which the management plan is adopted by the 
Secretary.

SEC. 8. SELF-DETERMINATION CONTRACTS.

    (a) In General.--The Secretary may contract with the Tribe to 
perform administrative or management functions within the Cultural 
Heritage Area through contracts entered into under the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5301 et seq.).
    (b) Requirements.--With respect to any contract carried out under 
subsection (a)--
            (1) the Secretary shall carry out all functions delegated 
        to the Secretary of the Interior under the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 5301 et 
        seq.); and
            (2) the contract or project shall be entered into under, 
        and in accordance with, section 403(b)(2) of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 
        5363(b)(2)).
    (c) Effect on Environmental and Other Requirements.--
            (1) In general.--Nothing in this section alters or abridges 
        the application of--
                    (A) the National Environmental Policy Act of 1969 
                (42 U.S.C. 4321 et seq.); or
                    (B) any other Federal environmental law (including 
                regulations).
            (2) Environmental analyses.--Nothing in this section allows 
        the Secretary or the Tribe to waive completion of any necessary 
        environmental analysis under applicable Federal law.
            (3) Retention of nepa responsibilities.--The Secretary 
        shall make any decision required to be made under the National 
        Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or 
        other applicable Federal law (including regulations) with 
        respect to any activity to be carried out on Federal land under 
        this section.
            (4) Applicability of the administrative procedure act.--
        Nothing in this section alters or abridges the application of 
        subchapter II of chapter 5 or chapter 7 of title 5, United 
        States Code, with respect to this section.

SEC. 9. LEGAL EFFECT.

    (a) Fish and Wildlife.--Nothing in this Act affects the 
jurisdiction or responsibilities of the State with respect to fish and 
wildlife.
    (b) Public Access.--Except as otherwise provided in this Act, 
nothing in this Act affects public access to the Cultural Heritage 
Area.
    (c) Water Rights.--
            (1) In general.--Nothing in this Act--
                    (A) constitutes an express or implied reservation 
                by the United States of water or water rights for any 
                purpose; or
                    (B) modifies or otherwise affects any water rights 
                existing on the date of enactment of this Act, 
                including any water rights held by the United States.
            (2) State water law.--The Secretary shall follow the 
        procedural and substantive requirements of the applicable State 
        and Federal law to obtain and hold any water rights not in 
        existence on the date of enactment of this Act with respect to 
        the Cultural Heritage Area.
    (d) Treaty Rights; Tribal Land.--
            (1) Treaty rights.--Nothing in this Act alters, modifies, 
        enlarges, diminishes, or abrogates the treaty rights of any 
        Indian Tribe, including the off-reservation reserved rights 
        secured by the Treaty with the Blackfoot Indians on October 17, 
        1855, and the Agreement with the Indians of the Blackfeet 
        Indian Reservation on September 26, 1895.
            (2) Tribal land.--Nothing in this Act affects any land or 
        interest in land held in trust by the Secretary of the Interior 
        for the Tribe or individual members of the Tribe.
    (e) No Effect on Jurisdiction.--Nothing in this Act limits or 
otherwise affects the civil or criminal regulatory jurisdiction, 
including law enforcement, for issues under the jurisdiction of the 
Tribe.
    (f) Existing Structures.--The maintenance of structures within the 
Cultural Heritage Area in existence as of the date of enactment of this 
Act may be permitted to continue--
            (1) in accordance with--
                    (A) this Act; and
                    (B) applicable law;
            (2) in a manner consistent with the purposes described in 
        section 5(c); and
            (3) subject to such reasonable regulations, policies, and 
        practices as the Secretary considers necessary.

SEC. 10. NONDISCLOSURE OF CULTURAL SITES.

    (a) In General.--The Secretary shall not disclose to the public 
information regarding the nature and location of cultural sites where 
the Secretary determines, in consultation with the Tribe, that the 
disclosure may--
            (1) risk harm to cultural resources of the site;
            (2) cause a significant invasion of privacy; or
            (3) impede the use of the site for traditional cultural 
        activities by the Tribe or members of the Tribe.
    (b) Effect.--Information withheld from the public under subsection 
(a) shall not be considered to be a Federal record for purposes of 
section 552 of title 5, United States Code (commonly known as the 
``Freedom of Information Act'').
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