[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]


    EXAMINING IMPACTS OF FEDERAL NATURAL RESOURCES LAWS GONE ASTRAY

=======================================================================

                            OVERSIGHT HEARING

                               BEOFRE THE
                               
              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                                 OF THE

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        Wednesday, May 24, 2017

                               __________

                            Serial No. 115-7

                               __________

       Printed for the use of the Committee on Natural Resources
       
       
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                     COMMITTEE ON NATURAL RESOURCES

                        ROB BISHOP, UT, Chairman
            RAUL M. GRIJALVA, AZ, Ranking Democratic Member

Don Young, AK                        Grace F. Napolitano, CA
  Chairman Emeritus                  Madeleine Z. Bordallo, GU
Louie Gohmert, TX                    Jim Costa, CA
  Vice Chairman                      Gregorio Kilili Camacho Sablan, 
Doug Lamborn, CO                         CNMI
Robert J. Wittman, VA                Niki Tsongas, MA
Tom McClintock, CA                   Jared Huffman, CA
Stevan Pearce, NM                      Vice Ranking Member
Glenn Thompson, PA                   Alan S. Lowenthal, CA
Paul A. Gosar, AZ                    Donald S. Beyer, Jr., VA
Raul R. Labrador, ID                 Norma J. Torres, CA
Scott R. Tipton, CO                  Ruben Gallego, AZ
Doug LaMalfa, CA                     Colleen Hanabusa, HI
Jeff Denham, CA                      Nanette Diaz Barragan, CA
Paul Cook, CA                        Darren Soto, FL
Bruce Westerman, AR                  Jimmy Panetta, CA
Garret Graves, LA                    A. Donald McEachin, VA
Jody B. Hice, GA                     Anthony G. Brown, MD
Aumua Amata Coleman Radewagen, AS    Wm. Lacy Clay, MO
Darin LaHood, IL
Daniel Webster, FL
David Rouzer, NC
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR

                       Jason Knox, Chief of Staff
                      Lisa Pittman, Chief Counsel
                David Watkins, Democratic Staff Director
                                 ------                                

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                     RAUL R. LABRADOR, ID, Chairman
           A. DONALD McEACHIN, VA, Ranking Democratic Member

Louie Gohmert, TX                    Ruben Gallego, AZ
Aumua Amata Coleman Radewagen, AS    Jared Huffman, CA
Jack Bergman, MI                     Darren Soto, FL
Mike Johnson, LA                     Wm. Lacy Clay, MO
  Vice Chairman                      Raul M. Grijalva, AZ, ex officio
Jenniffer Gonzalez-Colon, PR
Rob Bishop, UT, ex officio
                                
                               ---------
                               
                               
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, May 24, 2017..........................     1

Statement of Members:

    Labrador, Hon. Raul R., a Representative in Congress from the 
      State of Idaho.............................................     1
        Prepared statement of....................................     3

    McEachin, Hon. A. Donald, a Representative in Congress from 
      the Commonwealth of Virginia...............................     4
        Prepared statement of....................................     5

Statement of Witnesses:

    Cook, Hon. David, Owner, DC Cattle Company, LLC, Globe, 
      Arizona....................................................    15
        Prepared statement of....................................    16
        Questions submitted for the record.......................    18
        Supplemental testimony submitted for the record..........    20

    Dillon, Hon. Diane, County Supervisor, Napa County, 
      California.................................................     6
        Prepared statement of....................................     8
        Questions submitted for the record.......................    14

    Maloy, Celeste, Deputy Attorney, Washington County, Utah.....    26
        Prepared statement of....................................    27
        Questions submitted for the record.......................    29

    Pinto, Kendra, Counselor Chapter House Member, Nageezi, New 
      Mexico.....................................................    21
        Prepared statement of....................................    23

Additional Materials Submitted for the Record:

    Bureau of Land Management, May 11, 2017 Letter from current 
      and former members of the Western, Central, and Eastern 
      Montana Resource Advisory Councils to the Department of the 
      Interior Secretary Ryan Zinke..............................    36

    Federal Land Policy and Management Act of 1976, Section 201..    43

    List of documents submitted for the record retained in the 
      Committee's official files.................................    45

    Wessell, Ty, County Commissioner, District 4, Leelanau 
      County, Michigan, June 1, 2017 Letter to Rep. Bergman......    44
                                     


 
  OVERSIGHT HEARING ON EXAMINING IMPACTS OF FEDERAL NATURAL RESOURCES 
                            LAWS GONE ASTRAY

                              ----------                              


                        Wednesday, May 24, 2017

                     U.S. House of Representatives

              Subcommittee on Oversight and Investigations

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 9:03 a.m., in 
room 1324, Longworth House Office Building, Hon. Raul Labrador 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Labrador, Gohmert, Johnson, 
Bishop; McEachin, Gallego, and Soto.
    Mr. Labrador. The Subcommittee on Oversight and 
Investigations will come to order. The Subcommittee is meeting 
today to hear testimony on examining the impacts of Federal 
natural resources laws gone astray.
    Under Committee Rule 4(f), any oral opening statements at a 
hearing are limited to the Chairman, the Ranking Minority 
Member, the Vice Chair, and the Vice Ranking Member. Therefore, 
I ask unanimous consent that all other Members' opening 
statements be made part of the hearing record, if they are 
submitted to the Subcommittee Clerk by 5:00 p.m.
    Hearing no objections, so ordered.
    I will now recognize myself for 5 minutes for an opening 
statement.

  STATEMENT OF THE HON. RAUL R. LABRADOR, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IDAHO

    Mr. Labrador. Today, we will examine the implementation of 
three Federal natural resource laws: the Indian Reorganization 
Act, known as IRA; the Wilderness Act; and the Federal Land 
Policy and Management Act, also referred to as FLPMA.
    The Constitution grants responsibility to the legislative 
branch to enact our Nation's laws, and charges the executive 
branch with carrying them out in accordance with congressional 
intent. However, as we will hear today, that is not often the 
case in how things work out.
    For too long, Federal agencies have been permitted to 
disregard congressional intent, and implement the laws Congress 
passes, sometimes ignoring the law's original purpose. This 
affront to the separation of powers must be stopped, and we 
must look to curbing abuse by the executive branch and 
reasserting power over the unelected bureaucracy. And that is 
why we are holding this hearing today.
    While our focus this morning is on the implementation 
specifically of the IRA, the Wilderness Act, and FLPMA, today's 
hearing could have examined the wayward implementation of any 
number of different statutes within the Committee's 
jurisdiction. This Subcommittee will continue to identify and 
bring to light other similar bureaucratic abuses.
    Ensuring the proper application of the laws Congress passes 
should be a lot more simple than it has been in the past. 
However, as we will hear today, that is not how Federal 
agencies operate.
    Take for instance the manner in which the Department of the 
Interior implements the IRA. In 2009, the U.S. Supreme Court 
ruled that the IRA limits Interior's ability to accept land 
into trust on behalf of Native American tribes to only those 
tribes that were under Federal jurisdiction when it was enacted 
in 1934. This is clearly stated in the law itself.
    Yet, apparently, Interior has considered the Supreme 
Court's mandate to be a mere advisory opinion, because in 2014, 
its solicitor issued a memo that effectively allows Interior to 
define the meaning of ``under Federal jurisdiction'' however it 
pleases.
    During the previous administration, Interior informed this 
Committee that it did not maintain a list of tribes that were 
under Federal jurisdiction when it was enacted, and that it did 
not intend to prepare one either. To date, this Committee has 
not been able to identify, nor has Interior been able to 
provide, a single instance where a land-into-trust application 
has been denied on account of the tribe's not being under 
Federal jurisdiction in 1934.
    This morning, we will also hear how Federal land management 
agencies routinely fail to take into account the perspective of 
local communities that will be most significantly affected by 
their decisions. Instead, Interior has allowed land management 
decisions to be influenced by DC bureaucrats and out-of-touch 
litigation brought by environmental advocacy groups.
    This Subcommittee heard these concerns time and time again 
during the previous administration, and it is my hope that the 
Federal land management agencies will now refocus their 
implementation of the laws, such as the Wilderness Act and 
FLPMA, as they were intended.
    FLPMA's mandate for our public lands to be managed on the 
basis of ``multiple use and sustained yield'' may seem like a 
term of art to many, but those who have lived and relied upon 
the land for generations know that this principle is critical. 
It is critical not only to their income, their way of life, and 
their communities, but also to our Nation, ensuring that we 
will all benefit from a stable food supply, energy supply, and 
economic security.
    However, the over-regulation of administratively designated 
wilderness study areas, areas of critical environmental 
concern, and decades-long withdrawals of mineral leases 
undermine the notion of multiple use, impacting all of us 
throughout our Nation.
    I would like to thank our witnesses for being here today to 
lend their perspectives as we delve into the impacts of these 
expanded laws, and I look forward to hearing your testimony.

    [The prepared statement of Mr. Labrador follows:]
Prepared Statement of the Hon. Raul R. Labrador, Chairman, Subcommittee 
                    on Oversight and Investigations
    Today we will examine the implementation of three Federal natural 
resources laws--the Indian Reorganization Act, known as the IRA, the 
Wilderness Act, and the Federal Land Policy and Management Act, also 
referred to as FLPMA.
    The Constitution grants responsibility to the legislative branch to 
enact our Nation's laws, and charges the executive branch with carrying 
them out, in accordance with congressional intent. However, as we will 
hear today, that's not often the case in how things work out. For too 
long, Federal agencies have been permitted to disregard congressional 
intent, and implement the laws Congress passes sometimes ignoring the 
law's original purpose. This affront to the separation of powers must 
be stopped, and we must look to curbing abuse by the executive branch 
and reasserting power over the unelected bureaucracy. And, that's why 
we are holding this hearing today.
    While our focus this morning is on the implementation specifically 
of the IRA, the Wilderness Act, and FLPMA, today's hearing could have 
examined the wayward implementation of any number of statutes within 
the Committee's jurisdiction. This Subcommittee will continue to 
identify and bring to light other similar bureaucratic abuses.
    Ensuring the proper application of the laws Congress passes should 
be more simple.
    However, as we will hear today, that's not how Federal agencies 
operate. Take for instance the manner in which the Department of the 
Interior implements the IRA. In 2009, the U.S. Supreme Court ruled that 
the IRA limits Interior's ability to accept land into trust on behalf 
of Native American tribes to only those tribes that were under Federal 
jurisdiction when the IRA was enacted in 1934. This is clearly stated 
in the law itself. Yet, apparently Interior has considered the Supreme 
Court's mandate to be a mere advisory opinion, because in 2014 its 
solicitor issued a memo that effectively allows Interior to define the 
meaning of ``under Federal jurisdiction'' however it pleases.
    During the previous administration, Interior informed this 
Committee that it did not maintain a list of tribes that were under 
Federal jurisdiction when the IRA was enacted, and that it didn't 
intend to prepare one either. To date, this Committee has not been able 
to identify, nor has Interior been able to provide, a single instance 
where a land-into-trust application has been denied on account of the 
tribe's not being under Federal jurisdiction in 1934.
    This morning we also will hear how Federal land management agencies 
routinely fail to take into account the perspective of local 
communities that will be most significantly affected by their 
decisions. Instead, Interior has allowed land management decisions to 
be influenced by DC bureaucrats and out-of-touch litigation brought by 
environmental advocacy groups. This Subcommittee heard these concerns 
time and again during the previous administration, and it is my hope 
that the Federal land management agencies will now refocus their 
implementation of the laws such as the Wilderness Act and FLPMA as they 
were intended.
    FLPMA's mandate for our public lands to be managed on the basis of 
``multiple use and sustained yield'' may seem like a term of art to 
many, but those who have lived and relied upon the land for generations 
know that this principle is critical. It's critical not only to their 
income, their way of life, and their communities, but also to our 
Nation--ensuring that we all benefit from a stable food supply, energy 
supply, and economic security. However, the over-regulation of 
administratively designated wilderness study areas, areas of critical 
environmental concern, and decades-long withdrawals of mineral leases 
undermine the notion of multiple use, impacting all of us throughout 
our Nation.
    I would like to thank our witnesses for being here today to lend 
their perspectives as we delve into the impacts of these expanded laws, 
and I look forward to hearing your testimony. I now recognize the 
Ranking Member of the Subcommittee, Mr. McEachin of Virginia, for 5 
minutes.

                                 ______
                                 

    Mr. Labrador. I now recognize the Ranking Member of the 
Subcommittee, Mr. McEachin of Virginia, for 5 minutes.

 STATEMENT OF THE HON. A. DONALD McEACHIN, A REPRESENTATIVE IN 
           CONGRESS FROM THE COMMONWEALTH OF VIRGINIA

    Mr. McEachin. Thank you, Mr. Chairman, and thank you to 
each of our witnesses for making the time to be here today. I 
would like to give a special thanks to the Minority witness, 
Kendra Pinto, for having made herself available on such short 
notice.
    Ms. Pinto is a powerful advocate and voice for her 
community, the Counselor Chapter, Navajo Nation in New Mexico. 
Her home is also known as the San Juan Basin, which she shares 
with tens of thousands of oil and gas wells.
    A 2016 report by the Center for American Progress found 
that, ``out of the 15 regions with the most methane pollution 
from oil and gas production, New Mexico's San Juan Basin ranked 
third in overall emissions at 5.2 million metric tons, and 
number one in per-well emissions at 227 metric tons per well.''
    Methane is far from the only airborne contaminant from 
these fracking operations. Ms. Pinto found levels of hydrogen 
sulfide between a school and a well that are dangerous, 
especially to children. A peer-reviewed summary of health 
concerns with fracking emissions discussed other chemicals of 
concern. It said, ``Nitrogen oxides can irritate the 
respiratory system, while particulate matter can exacerbate 
pre-existing respiratory and cardiovascular problems, cause 
respiratory health effects, and damage lung tissue. Acute 
exposure to benzene can cause drowsiness, headaches, and eye, 
skin, and respiratory tract infections, and chronic exposure 
can cause blood disorders, including aplastic anemia, as well 
as reproductive effects. Benzene is also a known human 
carcinogen causing leukemia.''
    Health effects of these emissions from these fracking wells 
are not restricted to chemical exposures. A major explosion and 
fire last year at a fracking site in Nageezi, New Mexico, near 
where Ms. Pinto lives, burned for 5 days. Some residents 
reported respiratory and other health problems. It killed pets 
and livestock in the area, and forced the evacuation of 
residents. Some refuse to return because they are scared.
    This community could benefit from stronger protections for 
residents, their health, the air they breathe, the water they 
drink, and the land they farm. The BLM's methane rule aims to 
provide some relief, but my friends on the other side of the 
aisle have something different in mind.
    They first tried to permanently repeal the protective 
methane rule and anything resembling it by using the 
Congressional Review Act. They failed, because it is a popular 
rule among both parties. Polls show overwhelming support for 
the rule, with 80 percent of voters in western states 
supporting requirements for companies to capture and sell 
methane, instead of merely burning it into the air.
    Secretary Zinke has vowed to try to repeal it in any way 
possible, but because it is so popular, he and his colleagues 
in Congress have tried to create the appearance of support for 
their own unpopular positions by shutting out locals and 
amplifying voices from the oil and gas industry. The Secretary 
has suspended the Resource Advisory Councils, the mechanism the 
Department uses to collect input of all political stripes from 
local communities.
    The Secretary talked about the methane rule with more than 
a dozen CEOs and others from the Domestic Energy Producers 
Alliance, including Continental Resource's Harold Hamm. He 
failed to meet with a single environmental group, most of which 
are local- or state-based, during his first 2 months. The 
Secretary is setting himself up to get the answer he wants when 
he requests input on the repeal of the crucial public health 
protections like the methane rule and the fracking rule.
    My colleagues on this Subcommittee are following suit. The 
Chairman and Vice Chairman sent letters on May 9, 2017 to 
nearly 50 trade associations and companies soliciting feedback. 
None were sent to citizen environmental groups or the public 
health community. Environmental justice is defined as the fair 
treatment and meaningful involvement of all people, regardless 
of race, color, national origin, or income, with respect to the 
development, implementation, and enforcement of environmental 
laws, regulations, and policies.
    Ms. Pinto has brought us textbook environmental injustice. 
She and her community deserve better. As a co-founder of the 
United for Climate Environmental Justice Task Force here in 
Congress, I plan to fight until they get it.
    Thank you, Mr. Chairman. I yield back.

    [The prepared statement of Mr. McEachin follows:]
  Prepared Statement of the Hon. A. Donald McEachin, Ranking Member, 
              Subcommittee on Oversight and Investigations
    Thank you, Mr. Chairman. And thank you to each of our witnesses for 
making the time to be here today. I would like to give a special thanks 
to the Minority witness, Kendra Pinto, for making herself available on 
short notice.
    Ms. Pinto is a powerful advocate and voice for her community--the 
Counselor Chapter, Navajo Nation in New Mexico. Her home is also known 
as the San Juan Basin, which she shares with tens of thousands of oil 
and gas wells.
    A 2016 report by the Center for American Progress found that, ``out 
of the 15 regions with the most methane pollution from oil and gas 
production, New Mexico's San Juan Basin ranked third in overall 
emissions at 5.2 million metric tons and number one in per-well 
emissions at 227 metric tons per well.''
    Methane is far from the only airborne contaminant from these 
fracking operations. Ms. Pinto found levels of hydrogen sulfide between 
a school and a well that are dangerous, especially to kids. A peer-
reviewed summary of health concerns with fracking emissions discussed 
other chemicals of concern. It said: ``Nitrogen oxides can irritate the 
respiratory system, while particulate matter can exacerbate pre-
existing respiratory and cardiovascular problems, cause respiratory 
health effects, and damage lung tissue. Acute exposure to benzene can 
cause drowsiness, headaches, and eye, skin, and respiratory tract 
infections and chronic exposure can cause blood disorders, including 
aplastic anemia, as well as reproductive effects. Benzene is also a 
known human carcinogen, causing leukemia.''
    Health effects of fugitive emissions from these fracking wells are 
not restricted to chemical exposures. A major explosion and fire last 
year at a fracking site in Nageezi, New Mexico, near where Ms. Pinto 
lives, burned for 5 days. Some residents reported respiratory and other 
health problems. It killed pets and livestock in the area and forced 
the evacuation of residents. Some refuse to return because they are 
scared.
    This community could benefit from stronger protections for 
residents, their health, the air they breathe, the water they drink, 
and the land they farm. The BLM's methane rule aims to provide some 
relief. But my friends on the other side of the aisle have something 
different in mind.
    They first tried to permanently repeal the protective methane rule 
and anything resembling it by using the Congressional Review Act. They 
failed because it is a popular rule among both parties, even where you 
would not expect. Polls show overwhelming support for the rule, with 80 
percent of voters in western states supporting requirements for 
companies to capture and sell methane instead of merely burning it into 
the air.
    Secretary Zinke has vowed to try to repeal it anyway. But because 
it is so popular he and his colleagues in Congress have tried to create 
the appearance of support for their own unpopular position by shutting 
out locals and amplifying voices from the oil and gas industry. 
Secretary Zinke suspended the Resource Advisory Councils, the mechanism 
the Department uses to collect input of all political stripes from 
locals around the country.
    Then, while Secretary Zinke talked about the methane rule with more 
than a dozen CEOs and others from the Domestic Energy Producers 
Alliance, including Continental Resource's Harold Hamm, he failed to 
meet with a single environmental group, most of which are local- or 
state-based, during his first 2 months in office. The Secretary is 
setting himself up to get the answer he wants when he requests input on 
the repeal of crucial public health protections like the methane rule 
and the fracking rule.
    My colleagues on this Subcommittee are following suit. The Chairman 
and Vice Chairman sent letters on May 9, 2017 to nearly 50 trade 
associations and companies soliciting feedback on ``burdensome 
government regulations or processes under the Subcommittee's 
jurisdiction.'' None were sent to citizen environmental groups or the 
public health community.
    Environmental justice is defined as the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income, with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.
    Ms. Pinto has brought us textbook environmental injustice. She and 
her community deserve better. As a co-founder of the United for Climate 
and Environmental Justice Task Force here in Congress, I plan to fight 
until they get it.
    Thank you and I yield back.

                                 ______
                                 

    Mr. Labrador. Thank you. I will now introduce today's 
witnesses. Diane Dillon is the District 3 Supervisor in Napa 
County, California. David Cook is the owner of the DC Cattle 
Company in Globe, Arizona, and also represents Arizona's 8th 
Legislative District in the Arizona House of Representatives. 
Kendra Pinto is a Twin Pines resident and Counselor Chapter 
House Member of the Navajo Nation in Nageezi, Arizona. Did I 
say that right?
    Ms. Pinto. New Mexico.
    Mr. Labrador. Oh, sorry, New Mexico. I apologize.
    Celeste Maloy is a deputy attorney for the Washington 
County Attorney's Office in St. George, Utah.
    Let me remind the witnesses that under our Committee Rules, 
oral statements must be limited to 5 minutes, but your entire 
written statement will appear in the hearing record.
    In regards to testimony and questions, our microphones are 
not automatic, so you will need to press the talk button before 
speaking into the microphone. When you begin, the lights on the 
witness table will turn green. When you have 1 minute 
remaining, the yellow light will come on. Your time will have 
expired when the red light comes on, and I will ask you to 
please conclude your statement.
    I will also allow the entire panel to testify before 
questioning the witnesses.
    The Chair now recognizes Supervisor Dillon for her 
testimony.

  STATEMENT OF THE HON. DIANE DILLON, COUNTY SUPERVISOR, NAPA 
                       COUNTY, CALIFORNIA

    Ms. Dillon. Thank you very much, Chairman Labrador, Ranking 
Member McEachin, and members of the Subcommittee, as well as 
Congressman Bishop, for the opportunity to testify today on 
this important issue. I am Diane Dillon. I serve on the Napa 
County Board of Supervisors.
    Napa is located north of San Francisco. It is fundamentally 
an agricultural county known for its exceptional wineries. But 
you might not be aware that it is a relatively unpopulated 
county, with about 140,000 residents.
    The subject of this hearing is extremely important to all 
California counties today.
    Napa has been deeply concerned with how the Department 
implements the fee-to-trust process, and we have worked in a 
number of capacities to seek reform. Our views regarding the 
process are informed not only by how it has affected us, but 
many of the counties across California. I have been deeply 
involved with CSAC, the California State Association of 
Counties, and counties in other states, including New York, 
Oregon, Minnesota, and Washington.
    The impacts are profound. In California, we have 25 percent 
of all the Nation's tribes: 109 federally recognized tribes, 
and there are 78 tribal groups seeking recognition. We have 
nearly 100 separate reservations or rancherias in the state.
    The county supervisors and commissioners we have met with 
across the Nation all believe what is desperately needed is a 
fair Federal process with clear standards that will enable 
tribes and counties to work together as partners, and not as 
adversaries. What we have now is the opposite.
    Congress enacted Section 5 of the Indian Reorganization 
Act, the fee-to-trust authority, 83 years ago. And 83 years 
ago, we were looking at different problems, or Congress was 
looking at different problems. It was in the midst of the Great 
Depression. Extreme poverty existed on most Indian 
reservations, and it was exacerbated by Federal policies 
transferring tribal lands to individual Indians to promote 
assimilation, known as the allotment process.
    So, the purposes for which Section 5 was implemented and 
adopted bear no resemblance to the conditions we have today. 
And that disconnect is what is responsible for the tremendous 
conflict, controversy, and litigation we see all around the 
Nation.
    The Department has expanded its use of Section 5 beyond 
what was intended. It was not intended to be indiscriminately 
and extensively used, especially as it has been in the last 20 
years.
    Section 5 was inherently limited by an annual appropriation 
limitation of $2 million a year. Many, if not most, Indians 
were living in extreme poverty and poor health and living 
conditions. There was simply no expectation that significant 
amounts of land would ever be acquired in trust, because the 
Indians that Congress was intending to assist in 1934 were 
economically unable to acquire land, and that is not the 
situation we have today with many trust acquisitions.
    Today, we have tribes that have developed robust economies, 
and investors pay many millions to help other tribal groups get 
acknowledged and obtain trust land. The result has been a 
steadily increasing amount of conflict and litigation.
    What we also didn't have in 1934 was a system of land use 
planning like we have today. In 1934, zoning was still in its 
infancy--it existed mostly among the cities.
    And today, every city and county in California and most 
other states is required to adopt something called--in 
California we call it a general plan. It is a plan we spend 
millions of dollars for. It is supposed to govern our land use 
for 10 to 20 years. And the Department seemingly gives that no 
weight at all when it takes the trust land acquisition process 
into consideration. It does not consider our general plan and 
our land use.
    People invest in their homes and in their businesses based 
on our general plans, based on the land use plan that the local 
government has. And the fee-to-trust acquisition process does 
not look at that, because it was started under Section 5, and 
Section 5 did not envision that.
    We would like to see meaningful notice and transparency and 
meaningful consultation in the process, consistency with local 
land-use laws, consideration of changes in use to land. We have 
had situations where land was taken into trust for a medical 
clinic and, 6 years later, a 29-lane outdoor commercial gun 
range is proposed on that very same land.
    We need enforceable mitigation, and we need the opportunity 
for repeal of land acquisition decisions before they are final.
    Thank you very much, again, for the opportunity to testify 
today.
    [The prepared statement of Ms. Dillon follows:]
 Prepared Statement of the Hon. Diane Dillon, Supervisor, Napa County, 
                               California
    Thank you Chairman Raul Labrador, Ranking Member A. Donald 
McEachin, and members of the Subcommittee for the opportunity to 
testify today on this important issue. My name is Diane Dillon, and I 
serve on the Napa County Board of Supervisors. The Board of Supervisors 
is both the legislative and the executive authority in Napa County. In 
its executive role, the Board of Supervisors sets priorities for the 
County. We approve budgets; supervise the official conduct of County 
officers and employees; control all County property; and appropriate 
and spend money on public safety, human service, health, and other 
programs that meet the needs of County residents. In its legislative 
role, our Board's most important function is to make determinations 
consistent with our County's comprehensive land use plan.
    The subject of this hearing is an extremely important one, not just 
to Napa County, but to counties across the state of California. In my 
role as County Supervisor, I have worked extensively with the 
California State Association of Counties (CSAC), which represents 
county governments before the California Legislature, administrative 
agencies, and the Federal Government. I am serving in my second year as 
Chair of the County and Tribal Government Relations Subcommittee of the 
National Association of Counties (NACO).
    While I am here on behalf of Napa County only, my views regarding 
the problems the current fee-to-trust process creates and how that 
process should be implemented have been informed by Napa County's 
experiences and those of other counties in California and across the 
United States. By working with CSAC to develop legislation and policies 
intended to reduce the controversy and intergovernmental conflict the 
Federal fee-to-trust process has caused, I have heard from counties 
across the Nation about when the fee-to-trust process has worked and 
when it has not. What we all believe is that what is desperately needed 
is a fair Federal process with clear standards that will enable tribes 
and counties to work together as partners--and not as adversaries, 
which has unfortunately been increasingly the case.
    Today's hearing, entitled ``Examining Impacts of Federal Natural 
Resources Laws Gone Astray,'' is a sound way of considering the fee-to-
trust process set forth in Section 5 of the Indian Reorganization Act 
of 1934 (``IRA''), 25 U.S.C. Sec. 5108. Congress enacted the IRA over 
83 years ago to address a different problem than we have today. The 
Department of the Interior (``Department'') has used Section 5 for 
purposes other than those Congress was addressing in 1934, and despite 
the vastly different legal, social, political, and economic conditions 
we have today. The crux of the problem fundamentally is that Section 5 
is outdated. The Subcommittee should consider: (1) how the Department's 
use of Section 5 has expanded since 1934 and whether that use is 
consistent with Congress's primary purposes in enacting the IRA in 
1934; and (2) whether Section 5, in its current form, can be reconciled 
with state and local legal frameworks governing land use development 
and the modern economy. I would like to address both of those issues 
and propose some changes for consideration.
A. The Department's gradual expansion of its fee-to-trust authority has 
        undermined intergovernmental relationships
    There can be little doubt that the Department has gradually 
expanded its trust authority beyond what Congress envisioned in 1934. 
The most obvious evidence of that gradual expansion is the Supreme 
Court's 2009 decision in Carcieri v. Salazar.\1\ That case involved a 
challenge by the state of Rhode Island to the Department's authority to 
acquire land in trust pursuant to Section 5 of the IRA for the 
Narragansett Indian Tribe, an eastern tribe that had been placed under 
formal guardianship by the Colony of Rhode Island and eventually the 
state. Under Section 5, the Department may acquire trust lands ``for 
the purpose of providing land for Indians.'' Congress defined 
``Indian'' in Section 19 as:
---------------------------------------------------------------------------
    \1\ 555 U.S. 379 (2009).

  1.  all persons of Indian descent who are members of any recognized 
---------------------------------------------------------------------------
            Indian tribe now under Federal jurisdiction;

  2.  all persons who are descendants of such members who were, on June 
            1, 1934, residing within the present boundaries of any 
            Indian reservation; and

  3.  all other persons of one-half or more Indian blood.

    The Department argued that the word ``now'' in the first definition 
meant at the time the Department acquired land in trust. The state 
argued that ``now'' meant 1934, the year Congress enacted the IRA. The 
Court agreed with the latter and held that the authority of the 
Secretary of the Interior (``Secretary'') to acquire land in trust is 
unambiguously limited ``to those tribes that were under the Federal 
jurisdiction of the United States when the IRA was enacted in 1934.''
    It does not appear, however, that the Department has accorded the 
temporal restrictions the Court addressed in Carcieri with much weight. 
Tribes, states, and local governments, for their part, sought 
legislation to address the decision. Many tribes, for example, urged 
Congress to pass narrowly tailored legislation to reverse the Court's 
decision, with no other limitations. Napa County, along with CSAC and 
counties from other states, supported broader changes to the IRA to 
help address myriad conflicts the fee-to-trust process was generating.
    But rather than meaningfully engage in that process, the Department 
instead worked for over a year on a new legal interpretation of the 
decades-old statute, with input from tribes seeking trust lands. 
Claiming that Section 19 is ambiguous, the Department announced its new 
theory in a 2010 decision to acquire land in trust for the Cowlitz 
Tribe--a tribe that was not acknowledged until 2002, nor under Federal 
jurisdiction in 1934 in any meaningful sense. In fact, the 2000 
acknowledgment decision for the Cowlitz Tribe explicitly states the 
tribe was not a ``reservation tribe under Federal jurisdiction or under 
direct Federal supervision.'' The limitations in Section 19 of the IRA 
must be meaningless if, relying on ``ambiguity,'' the Department can 
conclude in 2000 that the tribe was not a ``reservation tribe under 
Federal jurisdiction or under direct Federal supervision,'' but reach 
the opposite conclusion in 2010.
    In another case, the Department acquired land for the Mashpee 
Tribe, which has a history virtually identical to the Narragansett 
Tribe in Carcieri. The Mashpee Tribe, like the Narragansett Tribe, was 
a tribe that was first under the guardianship and supervision of the 
colony of Massachusetts and later under the jurisdiction of the 
Commonwealth. The Department never acknowledged any responsibility for 
the Mashpee Tribe, at least prior to acknowledging it in 2007. Rather 
than rely on the first part of the definition of ``Indian'' used in the 
Narragansett and Cowlitz cases, the Department used the second part of 
the definition in Section 19 to contrive a way to take land into trust. 
A Federal district court has since rejected the Department's decision, 
but the land remains in trust and the Department is now evaluating 
whether the tribe can qualify for trust land under the first part of 
the definition, despite the Supreme Court's straightforward conclusion 
in Carcieri.\2\ There have been a number of other challenges based on 
the Carcieri decision in California and other states.
---------------------------------------------------------------------------
    \2\ See Littlefield v. U.S. Department of Interior, 199 F.Supp.3d 
391, 2016 WL 4098749 (D. Mass. July 28, 2016).
---------------------------------------------------------------------------
    Coming on the heels of the Carcieri decision, the Department's 
response in the Cowlitz situation was deeply troubling. The Supreme 
Court held in Carcieri that there are temporal limits on the 
Department's trust authority, and the Department responded by 
developing an interpretation of Section 19 that reads those limits out 
of existence.
    Members of the Carcieri Court also expressed concerns regarding the 
trust power itself, and the Department responded by establishing a goal 
for itself of acquiring as much land in trust as possible.\3\ In fact, 
between 2010 and 2016, the Department acquired almost 500,000 acres of 
land in trust.\4\
---------------------------------------------------------------------------
    \3\ The decision to acquire land in trust, however, is--as Chief 
Justice Roberts has noted-- an ``extraordinary assertion of power'' 
where the Secretary ``gets to take land and give it a whole different 
jurisdictional status apart from state law.'' Chief Justice Roberts 
asked, ``Wouldn't you normally regard these types of definitions in a 
restrictive way to limit that power? ''
    \4\ https: / / www.doi.gov / pressreleases / obama-administration-
exceeds-ambitious-goal-restore-500000-acres-tribal-homelands.
---------------------------------------------------------------------------
    When there is such doubt and confusion regarding the scope of the 
Department's power, it is appropriate to take a step back to consider 
the history of the statute, whether the purposes for which the statute 
is being used today are consistent with congressional intent, and 
whether the manner in which such decisions are being made is 
appropriate, given changed conditions since 1934. Yet the Department 
took the opposite approach, with the result of further alienating 
communities that believe it is not merely indifferent to, but actually 
dismissive of, their concerns about the impacts of trust acquisition.
B. The trust authority in Section 5 was not designed for use in the 
        modern economy
    The problems to which Congress was responding in 1934 are not the 
same problems that tribes and communities face today. When Congress 
enacted the IRA, its primary purposes were to (1) stop the allotment of 
tribal land (the government program of individualizing and privatizing 
Indian lands) and (2) promote principles of tribal self-determination 
and self-governance by giving tribes greater authority to manage their 
lands and resources.\5\ The goal of protecting tribal land is obvious 
from many of the provisions of the Act, which prohibit further 
allotment of tribal land, extend periods of restricted fee, restore 
surplus reservation lands to tribes, provide for the consolidation of 
lands within reservations, and authorize the acquisition of land in 
trust.
---------------------------------------------------------------------------
    \5\ See County of Yakima v. Confederated Tribes & Bands of Yakima 
Indian Nation, 502 U.S. 251, 255 (1992).
---------------------------------------------------------------------------
    The fact that Congress wanted to protect tribal land, however, does 
not mean that Congress intended for the trust authority to be used as 
indiscriminately and extensively as it has been used. It is not even 
reasonable to assume that Congress was anticipating that the Department 
would extensively use the fee-to-trust power to acquire trust lands 
purchased by tribes on the open market. When Congress passed the IRA in 
1934, it was in the midst of the Great Depression. The impetus behind 
the IRA was the Meriam Report, which detailed the extreme poverty, 
health, and living conditions of most Indians and included statistics 
showing that 71 percent of Indians reported a total income of less than 
$200 per year.\6\ The IRA was only part of the effort to address the 
conditions on reservation; special programs under the Civilian 
Conservation Corps and the Works Progress Administration were also 
implemented.\7\
---------------------------------------------------------------------------
    \6\ https://www.indian.senate.gov/sites/default/files/upload/files/
Frederick-Hoxie-testimony.pdf (discussing history of IRA).
    \7\ Id. at 8.
---------------------------------------------------------------------------
    Congress protected tribal lands through a variety of mechanisms, 
but in authorizing the acquisition of additional lands, it appropriated 
funds for that purpose. It did so almost certainly because, absent 
Federal funds, there was no way for impoverished Indians to acquire 
lands. Thus, Section 5 generally authorizes the Secretary, ``in his 
discretion, to acquire, through purchase, relinquishment, gift, 
exchange, or assignment, any interest in lands,'' but it also limits 
the moneys available for that purpose. Section 5 states, ``For the 
acquisition of such lands, interests in lands, water rights, and 
surface rights, and for expenses incident to such acquisition, there is 
authorized to be appropriated, out of any funds in the Treasury not 
otherwise appropriated, a sum not to exceed $2,000,000 in any one 
fiscal year.'' The Department's ability to acquire land in trust was 
understood to be inherently limited.
    Circumstances--tribal and otherwise--have obviously changed since 
the Great Depression. Over the past 83 years, many tribes have 
developed robust economies from natural resource development and other 
economic projects. Tribal gaming, in particular, has changed the 
economic fortunes for many tribes, and created an opportunity to 
acquire more trust land in economically attractive locations, resulting 
in conflict and litigation. When Congress enacted Section 5, it did not 
envision the economic power of many tribes today and it did not do so 
against the backdrop of tribal gaming. This is no longer a system 
limited to a $2,000,000 annual appropriation; it is a system where 
investors will pay tens to hundreds of millions of dollars to help a 
tribal group get acknowledged and/or obtain trust land, if in the 
``right'' location.\8\ And yet we still have impoverished tribes; the 
implementation of a 1934 solution has created two financial classes of 
tribes.
---------------------------------------------------------------------------
    \8\ In 2016, for example, it was reported that Genting Malaysia Bhd 
had already invested about $250 million in promissory notes issued by 
the Mashpee Wampanoag Tribal Gaming Authority for gaming development 
and the fee-to-trust process. https: / / news.worldcasinodirectory.com 
/ genting-announces-first-investment-management-deal-with-mashpee-
first-light-casino-in-massachuetts-25108.
---------------------------------------------------------------------------
    Not only have economic circumstances changed since 1934, the 
regulatory framework in which states and local governments operate has 
changed. Most cities in the United States lacked zoning laws at the 
turn of the century. In 1916, New York City was the first city in the 
Nation to adopt a comprehensive zoning ordinance. By the 1920s, 
hundreds of local governments adopted local zoning. Most Indian 
reservations, however, were located significant distances from urban 
areas.
    Between the 1920s and 1960s, California cities controlled land use 
primarily through zoning regulation. In 1972, however, the state of 
California mandated comprehensive long-term planning and required local 
controls to be consistent with the plan. Cities were required to 
develop a general plan that addressed land use, traffic, housing, open 
space, and public facilities. In addition, California passed the 
California Environmental Quality Act in 1970, which requires local 
agencies to follow certain procedures in developing general plans, as 
well as when considering specific projects. People buy homes, 
businesses make investments, and counties develop infrastructure based 
in reliance on those comprehensive land use plans. And to the extent 
that those plans change, the affected community can play a role in 
those decisions through democratic and legal avenues.
    In 1968, Napa County established the Nation's first agricultural 
preserve. The legislation, which originally protected 26,000 acres of 
valley floor, controls minimum parcel sizes (currently 40 acres) and 
allows agriculture and homes as primary uses. ``The crafters of the 
legislation had the foresight to recognize that we needed not to 
prevent development but monitor it to make sure we were protecting the 
natural landscape and utilizing the environment in a way that was 
beneficial to residents, farmers, and developers alike.'' \9\ In 1990, 
as further protection against urban growth in a world-renowned 
agricultural area, Napa County residents by initiative voted to mandate 
voters' approval for certain land use decisions within agricultural 
areas of the County.\10\ There was simply nothing comparable to these 
sorts of efforts in 1934 and no sense that Section 5 would or could be 
used to upend democratically enacted protections, such as Napa's 
agricultural preserve.
---------------------------------------------------------------------------
    \9\ http://wordpress.napahistory.org/wordpress/napa-valley-
agricultural-preserve-2/.
    \10\ The California Supreme Court upheld the ability of a voter 
initiative to override the local legislative land use process in Devita 
vs. County of Napa (1995) 9 Cal.4th 763.
---------------------------------------------------------------------------
    It is the ability (and willingness) of the United States to over-
ride these local land use processes by exercising the fee-to-trust 
authority that generates more conflict and litigation than any other 
issue. Congress did not address local land use when it enacted Section 
5 because local zoning was rudimentary in 1934; Congress could not have 
been envisioning a day when tribes could purchase lands in urban areas 
or agricultural preserves such as Napa's. Nor did it consider the 
possibility that the Department would use Section 5 to completely strip 
state and local governments of their authority over local land use, 
with little to no regard for state and local concerns.
    Although the Department has implemented regulations requiring it to 
consider the views of affected states and local governments, trust 
applications are virtually never denied on the basis that states and 
local governments oppose them. While the amount of litigation related 
to trust decisions demonstrates that the Department has not implemented 
Section 5 with any serious regard for local impacts, there are also 
studies to confirm this view. In 2013, Kelsey J. Waples reviewed all 
111 fee-to-trust decisions by the Pacific Region BIA Office between 
2001 and 2011.\11\ He found that BIA granted 100 percent of the 
proposed acquisition requests and in no case did any of the factors BIA 
is required to consider under its regulations weigh against approval of 
an application.
---------------------------------------------------------------------------
    \11\ Kelsey J. Waples, Extreme Rubber Stamping: The Fee-to-Trust 
Process of the Indian Reorganization Act of 1934, 40 Pepperdine Law 
Review 250 (2013).
---------------------------------------------------------------------------
    The litigation and conflict these decisions have generated have not 
led the Department to reconsider how it implements its fee-to-trust 
authority and whether changes are in order to prevent such conflicts 
from occurring. To the contrary, the Department has revised its 
regulations to make it harder for affected parties to challenge a 
decision or to have any remedy available if they succeed. The 
Department has also eliminated its policy of staying the transfer of 
title into trust upon a final decision, effectively stacking the deck 
against the affected community that might challenge a Federal decision. 
These are not changes that reflect a Federal agency concerned about 
objective decision making or minimizing conflicts. These are policies 
that appear to reflect an agency with contempt for communities 
adversely affected by its decisions. And it is time for change.
C. Congress should develop a new process for acquiring lands in trust
    The process for acquiring land in trust has created significant 
controversy, serious conflicts between tribes and states, counties and 
local governments--including decades of litigation--and broad distrust 
of the fairness of the system. Congress should consider whether the 
Department should have a role in acquiring land in trust at all or 
whether trust decisions should be handled through legislation. It 
should also consider the purposes for which lands will be used, the 
impacts of the proposed uses (and any subsequent change of use) to 
surrounding communities, and different standards that might be applied 
to such decisions. These broader questions are important and ought to 
be fully considered before moving forward.
    If Congress determines that the Department should continue to play 
a role in the trust acquisition process, it should impose a number of 
requirements. Those include:
1. Notice and Transparency
    The Department should be required to publish notice of an 
application for land in trust on its website, as well as a copy of all 
application materials, maps, legal descriptions, and related documents. 
Under the current regulations, it is very difficult for affected 
parties (local and state governments, and the public) to determine the 
nature of the tribal proposal, evaluate the impacts, and provide 
meaningful comments.
    Notice should be provided to and comment sought from not just the 
jurisdictional governments, but those governments from the communities 
that are likely to be impacted by the proposed activities. The impacts 
of trust decisions, particularly for gaming purposes, do not end at 
city or county borders. They can be felt across entire regions. The 
public services provided by neighboring states, counties, and cities 
may be impacted and those impacts must be considered. Neighboring 
tribes, including those with ancestral ties to the region, can be 
affected; 25 miles is usually an inadequate measure for outreach.
    The Department must do better and more to ascertain the impacts of 
its decision making.
2. Consistency with the General Plan, Local Land Use, and other 
        Applicable Laws
    The Department should not be permitted to acquire land in trust for 
a tribe if the proposed use is inconsistent with local land use. If 
local government is supportive of an inconsistent project, amendments 
to the local land use law should be required to ensure that the state 
and local processes enacted to give citizens a voice in the process are 
not silenced. Tribes are able to seek land on the open market, which 
includes the ability to purchase lands in areas where a proposed use 
will be compatible with existing law. They are also able to seek 
amendments that will enable a project to be consistent with local land 
use law. The Federal law should be structured in a manner that 
minimizes community conflict, and the Department should not be 
permitted to upend state and local long-term planning through the trust 
process.
    This change alone will go far in reducing the community conflict we 
see across the Nation.
3. Streamlined Process
    The Department should make intergovernmental agreements a priority. 
One way to do that is to develop an expedited fee-to-trust process for 
projects where the applicant tribe has negotiated an agreement with the 
jurisdictional governments addressing a variety of issues, including 
environmental, socio-economic, and other impacts. Again, the goal is to 
encourage tribes to partner with the affected community, to avoid an 
adversarial situation.
    A process that encourages cooperation and communication provides a 
basis to expedite decisions and reduce costs and frustration for all 
involved.
4. Meaningful Consultation
    Under the current regulations, the Department limits the parties 
from which it seeks information and does not conduct meaningful 
outreach. The Department should be statutorily required to consult with 
states, counties, and local governments and to consider comments 
provided by private parties. Under the current regulations, the 
Department does not invite comment by third parties even though they 
may experience major negative impacts, although it will accept and 
review such comments. Although the Department accepts comments from any 
party, it does not necessarily give those comments any weight; the law 
instead should mandate meaningful opportunity for consultation with 
local governments to address the impacts of the project.
5. Limits on Acquisition
    Congress should carefully consider whether there should be limits 
on the amount of land that can be acquired in trust for a particular 
tribe by defining ``need'' for land. The current approach does not 
provide guidance as to what constitutes legitimate tribal need for a 
trust land acquisition. To the contrary, the Department generally 
considers ``need'' for land to be satisfied by the fact that a tribe 
has purchased it. There are no standards other than the stipulation 
that the land is necessary to facilitate tribal self-determination, 
economic development or Indian housing. There are numerous examples of 
the Department taking land into trust for economically and 
governmentally self-sufficient tribes with large land bases.
    It is incongruous, at best, for the Department to use a Great 
Depression statute intended to help alleviate the conditions of Indians 
living under Federal jurisdiction to benefit wealthy, economically 
sophisticated tribes. The Shakopee Mdewakanton Tribe is reported to pay 
its members over $1 million per year in gaming per capita payments, yet 
the Department still acquires land in trust on their behalf.\12\ The 
Seminole Tribe is reported to worth billions.\13\ Other cases seem to 
defy common sense. In 2002, the St. Augustine Tribe opened a casino in 
Coachella, California, despite the tribe consisting of only one adult 
member.\14\ The last member of the tribe died in 1986, but that 
member's granddaughter, who was raised by another grandmother, moved 
back to the reservation with her three children after learning of her 
heritage.
---------------------------------------------------------------------------
    \12\ https: / / www.casino.org / news / lavish-living-for-the-
richest-tribe-owning-indian-casinos-in-america.
    \13\ http: / / www.publicgaming.com / index.php / racinocasino- / 
21380-how-the-seminole-tribe-of-florida-went-from-being-a-band-of-
outcasts-living-in-the-everglades-to-the-multibillionaire-owners-of-an-
iconic-global-brand.
    \14\ https://indiancountrymedianetwork.com/news/eight-member-
augustine-tribe-opens-casino/.
---------------------------------------------------------------------------
    Congress should also consider whether to apply different standards 
for ``need'' depending on whether an application is for off-reservation 
land. Under the Department's current interpretation of its authority, 
every time the Department acquires land in trust, state and local laws 
are generally eliminated and tribal law applies. As the amount of trust 
land increases, the jurisdictional and legal complexity becomes 
untenable. In particular, people may not be aware of which laws apply 
where; tribes are not required to publish their laws or judicial 
decisions. This problem is exacerbated when non-contiguous lands are 
acquired in trust.
6. Changes in Use of Land
    Congress should consider how and when tribes may change the 
purposes for which trust lands will be used. There have been a number 
of cases where tribes have changed the proposed use for trust land 
after the land was taken into trust. As an example, a California tribe 
sought and obtained approval for a medical facility on newly acquired 
trust land near two elementary schools, a church, residences, and a 
major state highway. The tribe later built the medical facility on 
another parcel of trust land that had been placed in trust years 
before. The tribe then decided to build a 29-lane outdoor commercial 
gun range on the land taken into trust by the Department for the 
medical facility.\15\ The public outcry was dramatic. Although the 
tribe ultimately reduced the scope of its project, it can increase it 
at any time.
---------------------------------------------------------------------------
    \15\ See http://www.gunrangeinfo.com/archived-site/; http://
www.startribune.com/prior-lake-city-council-opposes-shakopee-tribe-s-
land-plans/363092071/.
---------------------------------------------------------------------------
    Indeed, in 1934, Congress did not understand tribal sovereign 
immunity in the manner it is understood today. The notion that tribes 
enjoyed sovereign immunity was inchoate in 1934. Since then, however, 
the Supreme Court has held that tribes enjoyed sovereign immunity for 
off-reservation commercial conduct until 1998.\16\
---------------------------------------------------------------------------
    \16\ See Kiowa Tribe of Oklahoma v. Manufacturing Technologies, 
Inc., 523 U.S. 751 (1998).
---------------------------------------------------------------------------
    Given these problems, it is important that Congress address this 
issue in legislation.
    Approved applications should require specific representations of 
intended uses, and changes to those uses should not be permitted 
without further reviews, including environmental impacts, and 
application of relevant procedures and limitations. Such further review 
should have the same notice, comment, and consultation as the initial 
application. The law also should be changed to explicitly authorize 
restrictions and conditions to be placed on land going into trust that 
furthers the interests of both affected tribes and other affected 
governments.
7. Enforceable Mitigation
    In many environmental impact statements and records of decision, 
the Department has concluded that a trust application will not 
adversely impact the community because the impacts can be mitigated. It 
does not, however, require there to actually be enforceable mitigation. 
Other agencies condition permits on compliance with mitigation 
requirements. The Department does not.
    To the extent that a decision relies on a finding that impacts can 
be mitigated, the Department should be required to identify an 
enforceable intergovernmental agreement that provides the mitigation 
cited or require, as a condition of acquisition, that the applicant 
waive its immunity to allow the affected community to enforce the 
mitigation.
8. Appeals of Land Acquisition Decisions
    In November 2013, the Department finalized a rule eliminating the 
Department's own ``self-stay'' policy, which had required the Secretary 
to publish notice of a final trust decision 30 days before actually 
transferring title.\17\ The waiting period was intended to ensure that 
interested parties had the opportunity to seek judicial review before 
the Secretary acquired title to the land. The new policy now directs 
the Secretary or other BIA official to ``immediately acquire the land 
in trust'' after a decision becomes final. The Department justified the 
new rule by stating that the Department could remove land from trust, 
if a decision was deemed arbitrary and capricious.
---------------------------------------------------------------------------
    \17\ 25 CFR Part 151, BIA-2013-0005, RIN 1076-AF15.
---------------------------------------------------------------------------
    The rule, however, has been abused. The Department has cut off 
state rights by transferring land into trust and has refused reasonable 
requests that it either stay the effect of a final decision or provide 
even a day of notice to allow a potentially affected party to seek an 
emergency injunction. The Department has transferred title to lands 
before decisions were final, ignoring requests that the illegal 
transfer be undone, and it has resisted removing land from trust after 
a Federal court has held a trust decision to be arbitrary and 
capricious. The Department has not lived up to its commitment to remove 
land from trust when it has violated the law and it should not be 
permitted to take title prior to judicial review.
    The Department has also encouraged tribes to begin development 
immediately upon acceptance of land into trust. If the beneficiary of 
the trust decision does not intervene in a judicial proceeding, the 
aggrieved party cannot seek emergency relief because of tribal 
sovereign immunity. Thus, development can be completed before the 
aggrieved party has been able to have their claims heard.
                               conclusion
    I appreciate the opportunity to testify on the Department's fee-to-
trust authority. The legal, political, and economic landscape bears 
little resemblance to what existed in 1934, and it is inappropriate, at 
least, for the Department to implement Section 5 as if nothing has 
changed over the last 83 years. It is long past time for Congress to 
tackle this controversial issue.

                                 ______
                                 

  Questions Submitted for the Record by Rep. Johnson to Diane Dillon, 
                  Supervisor, Napa County, California
    Question 1. In your written testimony you mentioned that through 
regulations, the Department of the Interior has actually made it harder 
for affected parties to challenge a fee-to-trust decision, could you 
expand upon that?

    Answer. Through the regulatory process, the Department of the 
Interior (Department) has made it harder for affected parties to 
challenge a fee-to-trust decision as follows:

        After the Patchak decision in 2012, the Department abandoned 
        its self-stay policy. Immediately after the record of decision 
        is made in a fee-to-trust decision, the land is immediately 
        transferred to the tribe, which could start construction 
        activities right away. This change of regulatory process causes 
        more hardship for interested parties.
    Question 2. I have heard that local governments have actually had 
to resort to filing Freedom of Information Act requests just to find 
out if a land-to-trust application has been filed with the Department 
of the Interior for lands in their jurisdiction. Have you also heard of 
local governments being forced to pursue this course of action, and if 
so, what Federal policy is responsible for this?

    Answer. Local governments have had to resort to filing Freedom of 
Information Act requests follows:

    The initial notice that a local government will receive is a letter 
announcing the intent of a tribe to take land into trust and a 
description of the property. The affected governments are then provided 
the opportunity to send back information on taxes and law enforcement 
jurisdiction. However, local governments (and even the state of 
California) must send a request to the Bureau of Indian Affairs (BIA) 
for a copy of the Fee to Trust Application. While the BIA provides 
copies of the Scoping Hearing comments, the Draft EIS, and the FEIS to 
interested parties, it does not provide the fee to trust application. 
The Application provides important additional information.

    Question 3. At the hearing's conclusion, Ranking Member McEachin 
stated the following in regards to the Supreme Court's decision in 
Carcieri v. Salazar, ``. . . I would ask for unanimous consent to 
introduce into the record the decision known as Carcieri, which allowed 
the Interior Department to recognize tribes that were not officially 
recognized in 1934.'' Is Ranking Member McEachin's representation of 
the Court's holding correct, and if not, why not?

    Answer. I did not understand Ranking Member McEachin's request, so 
decline to respond to this question.


                                 ______
                                 

    Mr. Labrador. Thank you very much.
    The Chair now recognizes Representative Cook for his 
testimony.

  STATEMENT OF THE HON. DAVID COOK, OWNER, DC CATTLE COMPANY, 
                      LLC, GLOBE, ARIZONA

    Mr. Cook. Thank you, Chairman Labrador, Ranking Member 
McEachin and also Representative Bishop and other members of 
the Committee for being able to testify before you today. My 
name is David Cook; I am a rancher from Globe, Arizona, and 
serve the people of Legislative District Number 8 at the 
Arizona House of Representatives. My wife, Diana, and I own and 
operate DC Cattle Company.
    Gila County, where we live, is 97 percent public and 
Federal land. Like most ranches in the West, we rely on our 
Federal grazing allotments.
    Laws like the Federal Land Policy and Management Act, 
FLPMA, have a large impact on our communities and businesses. 
FLPMA governs nearly all of our interactions with the Federal 
land agencies, and often serves to limit our voice as the 
primary impacted stakeholder. Failure of responsible management 
often leads to dire consequences of our lands and rural 
economies. I do not believe it was the intent of Congress to 
disenfranchise communities like mine when laws like FLPMA and 
the Wilderness Act were originally enacted, but that is 
certainly where we have ended up today.
    Under FLPMA, the Secretary has the ability to issue 10-year 
grazing permits. Personally, our permit has been in review by 
the Tonto National Forest for over 15 years, leaving my 
business and family in a perpetual state of uncertainty. This 
burden has prevented us from making necessary improvements to 
the land--benefits that could not be realized by my family, as 
well as my community.
    If not for the relief provided by portions of the Grazing 
Improvement Act passed by this body in 2014, our ranch and many 
others would be pushed to the breaking point of uncertainty.
    The original intent of FLPMA was to provide direction for 
the management of our public lands which would emphasize and 
protect the mandate for multiple use and sustained yield. 
Unfortunately, the delegation of authority from Congress to the 
land management agencies and their unchecked authority over 
land use planning has resulted in abuse by administrators and 
by radical environmental groups through relentless, offensive 
litigation.
    One example was the so-called Salt River Six, which was 
comprised of six Forest Service allotments along the Salt River 
that needed permit renewals. The Forest Service consulted with 
several other Federal agencies during a 4-year process, but 
would not consult with Gila County about potential impacts. 
After more than 4 years, the Forest Service scrapped the 
project. The situation remains unresolved, and the six separate 
ranching operations remain in limbo. The economic impacts of 
this uncertainty are devastating to rural economies, while 
millions of tax dollars were wasted.
    When wilderness areas are designated, it limits the use of 
all natural resources within that area, which further reduces 
the economic potential. In Gila County, our local ranchers have 
been trying to prevent the closure of a 10-mile segment of 
Forest Road 203. This roadway provides the only motorized 
access to several privately owned and occupied homesteads.
    While the Forest Service acknowledges the severe impacts 
that proposed closure would create, they say they are unable to 
stop the closure from taking place because the road is within 
the wilderness area. They say they must comply with the 
Wilderness Act and close the road since they just discovered it 
after 50 years.
    Wilderness designations have severely limited the ability 
to properly maintain and enhance the ranching improvements. In 
the Superstition Wilderness Area, the Rafter Cross Ranch was in 
the process of constructing a fence just 20 feet off the road 
next to the wilderness area. They planned to use an air 
compressor and a post driver, but they were denied to use that 
because it was mechanical, so the Forest Service made it much 
more expensive and harder for them to do their work.
    In conclusion, overly burdensome regulations continue to be 
detrimental to the management and health of our public lands. 
It is imperative that Congress act to remove the layers of red 
tape that continue to bind ranchers and rural communities.
    Thank you for this opportunity, and I look forward to 
working with you to find a solution to this problem. I am happy 
to answer any questions at any time.

    [The prepared statement of Mr. Cook follows:]
 Prepared Statement of the Hon. David Cook, on behalf of Public Lands 
Council, National Cattlemen's Beef Association, Arizona Cattle Growers 
                              Association
    Chairman Labrador, Ranking Member McEachin, members of the 
Committee; thank you for the invitation to testify before your 
Committee today.
    My name is David Cook I am a rancher from Globe, Arizona and serve 
the people of Legislative District 8 in the Arizona House of 
Representatives. My wife Diana and I own and operate DC Cattle Company 
along with our two children, and we are partners in several other 
ranches in Gila County. Gila County covers approximately 4,800 square 
miles and contains less than 5 percent private deeded land. Over 55 
percent is county is managed by the Tonto National Forest, with the 
remainder made up of two Indian reservations at 37 percent and the 
Bureau of Land Management at 7.5 percent. All of the ranches we operate 
must utilize a Federal grazing permit with the Tonto National forest to 
remain economically viable.
    I provide these facts to give you an idea of why Federal laws like 
the Federal Land Policy and Management Act (FLPMA) and the Wilderness 
Act have such a large impact on our community. The first, FLPMA, 
governs nearly all of our interactions with the Federal land use 
planning process and often serves to limit our voice as a primary 
impacted stakeholder. Further, special land designations on lands that 
are already federally owned and subject to management decisions by the 
Federal Government, like Wilderness designations, only create more 
burdens for Federal agencies and typically serve to erode true multiple 
use in favor of a ``hands off'' approach. This failure of responsible 
management often leads to dire consequences for our region--
economically, ecologically, and culturally.
    Gila County is rural Arizona, and more specifically, is 
representative of the rural West, where local government and economic 
drivers like ranching often have their voices and input diminished in 
Federal planning processes. I do not believe it was the intent of 
Congress to disenfranchise communities like mine when laws like FLPMA 
and the Wilderness Act were originally enacted, but that is certainly 
where we have ended up. The burden of compliance with these processes--
not to mention the struggle to have our voice as a stakeholder heard 
and respected--has become the dominate consumer of time and resources 
for anyone or any entity interacting with federally managed lands. 
These Federal lands stifle the ability to have taxable income which 
hurts our economy and our schools. So while I am going to give 
specifics about my ranching operations I must stress that the decisions 
made here in DC are hindering my community from moving forward and 
force us to plead with the Federal Government for money for schools, 
infrastructure, and other basic needs we could provide ourselves if our 
local lands were productive and vibrant.
    Under FLPMA, the Secretary has the ability to issue 10-year grazing 
permits if agency personnel finds it satisfactory and appropriate for 
said lands. Livestock grazing has been around for centuries and over 
that time ranching families have invested a great deal of time and 
financial resources to become more efficient and productive while 
enhancing the landscapes they live and work on. At the same time the 
U.S. Forest Service (USFS) and Bureau of Land Management (BLM) have 
failed to recognize these achievements as we have seen a steady decline 
in animal units on public lands since the inception of polices like the 
Federal Lands Policy and Management Act. Personally, our permit has 
been in review by the Tonto National Forest and awaiting a standard 
renewal for over 15 years. This is evidence of a broken system that 
leaves my business and family in a perpetual state of uncertainty. 
Additionally, this burden has prevented me from making necessary 
improvements and investments in these lands to become more efficient 
and have the opportunity to create a more lucrative business--benefits 
that could be realized by my family, as well as the community and our 
Federal Government landlords.
    As already mentioned, for 15 years I have been held hostage by the 
Federal process to renew a permit for over 1,129 head of cattle, and I 
am only one of the thousands of permittees across the West that face 
similar issues. If not for the relief provided by portions of the 
Grazing Improvement Act passed as part of the FY 2015 NDAA, which 
provides for continuous operation of our permit while we wait in limbo 
hoping for an eventual renewal, our ranch and many others would be 
pushed to the breaking point by uncertainty. I can assure you that the 
hold up on our renewal is not due to lack of time or resources. Other 
permits have moved through the process and while USFS still has made 
time to monitor where I have placed my salt blocks for the cattle and 
issue notices of violation for feeding hay inside a corral, they cannot 
find the time to complete the necessary work to renew my permit.
    The original intent of this legislation was to provide direction 
for the management of our public lands which would emphasize and 
protect the mandate for multiple use and sustained yield. Unfortunately 
and unintentionally, the delegation of authority from Congress to the 
land management agencies and the unchecked authority over land use 
planning that has resulted has been abused by administrators and 
capitalized on by radical environmental groups through relentless 
offensive litigation. This has led to further restrictions on public 
lands, specifically for permitted activities, thereby eroding the 
intent of multiple use. Furthermore, the intent to cooperate and 
consult with local governments has not been properly used and has 
instead served to de-prioritize crucial local government input and 
consideration in the planning process.
    One example was the so-called ``Salt River Six,'' which was 
comprised of six forest service allotments along the Salt River that 
needed permit renewals. USFS consulted with several other Federal 
agencies during a 4-year process but would not consult with Gila County 
about potential impacts to their general plan. After more than 4 years 
of meetings, time, and resources USFS scrapped the project and started 
asking permittees to disregard any of the previous years. At present, 
the situation remains unresolved and six separate ranching operations 
remain in limbo about the future of their business and no certainty 
that they will continue to operate. The economic impacts of this 
uncertainty on a rural economy are devastating.
    When wilderness areas are designated, it limits the use of all 
natural resources within that area, which further reduces the economic 
potential of rural areas and counties. Industries such as cattle 
grazing see a significant reduction in their ability to maintain the 
infrastructure in which they need to operate their ranching businesses.
    In Gila County, our local ranchers have been trying to work with 
the U.S. Forest Service (USFS) to prevent the closure of a 10-mile 
segment of Forest Road 203. This roadway provides the only motorized 
access to several privately owned and occupied homesteads. It is also a 
public roadway used by law enforcement, hunters, hikers, as well as 
livestock grazing permittees and families who reside in the surrounding 
Young and Globe communities. The closure of any stretch of this road 
would be devastating. While the Forest Service acknowledges the severe 
impacts that the proposed closure would create for this area, they are 
unable to stop the closure from taking place. Unfortunately, it has 
been discovered that the previously designated Sierra Ancha Wilderness 
Area encompasses the 10-mile stretch of Forest Road 203 and they are 
legally required to decommission the road to comply with the Wilderness 
Act.
    Wilderness designations have severely limited the ability to 
properly maintain and enhance any ranch improvements despite the 
original intentions of the legislation to not interfere with these 
activities. In the Superstition wilderness area, the Rafter Cross Ranch 
was in the process of constructing a pasture division fence on the 
boundary of the wilderness adjacent to a USFS road. The plan was to use 
an air driven T-post driver and have the air compressor unit on the 
road 20 feet from the wilderness. Because this was a mechanical tool, 
the USFS would not allow its use. This decision cost the ranch money in 
labor and additional time to construct the fence. These types of 
decisions continue to make it more difficult to operate in or near 
wilderness designations. There are several allotments in the Tonto 
National Forest that are vacant because the hardships, additional cost, 
and regulation of a wilderness area cause the land to be unusable by a 
productive use.
    In conclusion, overly burdensome regulations continue to be 
detrimental to the management and health of our public lands. It is 
imperative that Congress act to remove the layers of red tape that 
continue to bind ranchers and the rural communities they live in. The 
planning and management of our Federal lands for multiple use and 
sustained yield should be a collaborative one--with local communities 
and stakeholders like Federal grazing permittees playing a key role, 
rather than simply being subject to the whims of an overwhelmed 
bureaucracy. Additionally, as an elected Representative to the Arizona 
State Legislature, I can attest that these burdensome laws extend far 
beyond the local businesses and communities I'm representing here 
today. In fact they impact everything we do in a state like Arizona, 
from industry, to tourism, to simply bringing necessary services like 
electricity to our rural citizens.
    Thank you for this opportunity, and I look forward to working with 
you to find a solution to this problem.

                                 ______
                                 

  Questions Submitted for the Record by Rep. Labrador to David Cook, 
                     Owner, DC Cattle Company, LLC
    Question 1a. In your testimony you highlighted that a 10-mile 
segment of Forest Road 203 in Gila County was slated to be closed in 
order to comply with the Wilderness Act. Could you elaborate more on 
this?

    Answer. The Tonto National Forest (TNF), that comprises 
approximately 55 percent of Gila County, is in the process of Travel 
Management Planning--an activity implementing a land management plan 
and subject to the objection process described in 36 CFR 218 Subparts A 
and B. The TNF website states, ``The key to making these decisions, and 
ensuring they are sustainable over the long term, will be working 
together at the local level.'' However, I find that this is not the 
case for FS road 203 or our own permit. It is my understanding that 
there are at least three current roads that are going to be closed 
because of the travel management plan in relationship to the Wilderness 
Act: FS 203 road mentioned here, and I have just learned about the road 
(FS 487) going to Aztec peak, which hosts a FS fire lookout tower and 
loops within a wilderness area, would be closed along with an Arizona 
Public Service power transmission line maintenance road that is used 
for the transmission line for the same reason. I am currently trying to 
get that road number from the agency.

    Here is what we requested be added to our FS permit concerning 
travel management in 2015 and we have not received any written 
response, to date:
Travel Management Guidelines and/or restrictions
    Under USDA regulation (36 CFR Part 212--Travel Management), the 
Tonto National Forest will be developing and implementing the Forest's 
Travel Management Plan (TMP) within the near future. The TMP and 
subsequent implementation decision will prohibit the general public 
from use of motor vehicles for cross-country travel, as well as on 
roads closed to motor vehicle use. Under the terms and conditions of 
your term grazing permit you are authorized to conduct livestock 
grazing activities on National Forest lands within the TNF as 
authorized within your term grazing permit. Motor vehicle use that is 
specifically needed, authorized, and/or directly related to the terms 
and conditions of your grazing permit are exempted from the 
prohibitions applied to the general public. This includes motor vehicle 
use in order to conduct the following types of activities associated 
with your term grazing permit:

     Normal vehicular use needed to maintain all range 
            improvements assigned under your term permit as your 
            responsibility for maintenance.

     Normal vehicular use as needed to properly check on and 
            care for your livestock authorized under your term grazing 
            permit.

     Normal vehicular use as needed to check on forage, water, 
            and general range conditions within your permitted grazing 
            allotment.

     Any other vehicular use needed to properly care for your 
            livestock and/or to redeem your responsibilities under the 
            term and conditions of your term grazing permit.

    All motor vehicular use in conjunction with carrying out permitted 
grazing activities shall be conducted in a responsible manner so as to 
not cause and/or accelerate resource damage and/or cause degradation to 
the soil or vegetation related resources. Special caution must be taken 
so that vehicular use occurs only when soils are sufficiently dry and/
or frozen so as to avoid resource degradation or any long-lasting 
negative impacts.

--Quoted from Chapter 10 Regional Office

    We think this is the type of action that the agency should take to 
help producers who are engaged in business on FS lands, not to ask them 
each time needed to come to a Federal office during Federal hours and 
days and plead and beg for permission each time something that is 
already permitted needs to be done.

    Question 1b. How would the private landowners who rely upon the 
road be impacted? What would happen if an emergency would occur and the 
road was inaccessible? Has the Forest Service taken these concerns into 
account?

    Answer. One of the ranching families would only have one access in 
or out of their property when conditions permit. This year, they were 
stuck for 2 months without any ingress or egress from their property 
because FS 203 is now blocked and the water made the only other way 
impossible to cross. The county government used to blade FS road 203 
once a year but it is my understanding that the FS stopped funding the 
county for such work and was going to do it themselves. It is my 
understanding that they have never maintained the road since. The 
closure of the road makes it a 12-hour horseback ride to that end of 
the ranch and the corrals, making improvements and repair impossible 
along with the transportation of cattle. If there was an emergency of 
the medical nature, life would easily be lost because of the lack of 
availability to medical services.

    Question 2. The poverty and unemployment rates in Gila County are 
significantly higher than the national average, with 21.3 percent of 
residents living in poverty in 2015. Given that 96 percent of the land 
in Gila County is federally owned, to what extent are burdensome 
Federal regulations and land-use restrictions to blame for these 
economic statistics?

    Answer. I believe the burdensome Federal regulations are largely to 
blame. For instance, our rural area and its economic wealth is derived 
from natural resource jobs such as timber, grazing and minerals. Timber 
has all been eliminated, and grazing has greatly been reduced and/or 
eliminated in several areas because Federal regulations such as these 
we have discussed have made it financially impossible to operate under 
such restrictive conditions. That leaves mineral leases which are 
constantly under attack from further Federal regulations such as air 
quality standards or Federal lands are needed to expand the existing 
mineral extractions. The cost of millions of dollars to get through the 
required regulations such as Environmental Impact Statements, land 
acquisitions, etc. drive these companies to other countries where these 
regulations and requirements do not exist.
    This equates to less financial opportunity for jobs and continued 
education for rural citizens of my county and state. Many of our small 
towns are land-locked by Federal lands and have no chance of expansion 
for business or housing for our communities to grow, thus keeping our 
rural areas in a state of depression as the Federal Government has a 
strangle hold on them.

                                 ______
                                 

            SUPPLEMENTAL TESTIMONY SUBMITTED FOR THE RECORD

                          DC Cattle Company, L.L.C.
                                             Globe, Arizona

                                                       June 5, 2017

Hon. Raul Labrador, Chairman,
House Subcommittee on Oversight and Investigations,
Committee on Natural Resources,
Washington, DC 20513.

Re: Additional information for the record

    Dear Chairman Labrador:

    In my testimony, with limited time and with respect for you and the 
committee, I provided detail that was fitting under the circumstances 
that was and is true and correct. The FS (United States Forest Service) 
took action and there was a redrawn line and pastures were 
``exchanged,'' lines redrawn and improvements installed making the 
allotment better suited for management. Also, at a later date, the two 
allotments were combined by a single owner which created greater 
flexibility and opportunity (Coolidge-Parker Allotments).
    One-third of the ranch that we have not been able to use is an 
additional permit that we partially own and have been unable to use in 
its entirety since it was purchased. For years, we were told by the 
agency (FS) that there was a court agreement that did not allow us to. 
We continued to request to graze those pastures and were denied in 
writing by the FS on each occasion (one-third of the grazing 
allotment). Years later the FS gave us the documents surrounding the 
agreement. The document did not prohibit grazing but that if grazing 
took place then the FS would monitor. Soon thereafter, the FS modified 
the permit taking those pastures out of our permit telling us that they 
would be addressed in NEPA. Which has been going on for 9 years now and 
we calculated that over $1,000,000.00 (one million) has been lost in 
gross revenue at this time and that number continues to grow. This is 
just another example how limited but productive lands in rural places 
like Gila County are being snatched from producing jobs and income by 
agencies like the Forest Service. Their first fallback is to take the 
land out of production until, at some unknown date and time, it may be 
returned instead of keeping it in production until they find time to 
complete their needed paperwork.
    I would like to point out that when using a slang term ``midnight 
agreement'' to reference a court proceeding and not an official docket 
name or number, that it was easily identified to which one I was 
speaking. Once again, my understanding is that overnight, without the 
meeting of all the parties listed in the claim, the FS met and made an 
agreement by themselves that proved to be harmful to permittees for the 
betterment of not the land or definitely any species or people living 
in these areas, but for themselves.
    One of the items that needs to be corrected and has gone astray is 
the people's ability to defend themselves against government actions 
and reports. The FS has now changed their internal policy that now does 
not allow permittees the ability to appeal their Annual Operating 
Instructions issued by the FS. America is based off a system that 
allows ``due process'' and through the rulemaking process the FS took 
that from permittees. So here, where salt blocks are again debated, I 
will explain as to show the simplicity, but yet the ability, of one 
rogue staff member within the FS and what they are able to accomplish 
with the Federal FS shield protecting them.
    A range staff from Wyoming came to Arizona with no real-time 
experience in the Southwest grazing system of year round grazing and 
found a salt block that a deer hunter had placed by a spring and their 
hunting stand. Since we, the ranchers, were the only ``permitted'' 
activity, it was the FS's responsibility to write me a letter 
concerning the violation and how it was our responsibility because we 
had the grazing permit. Another well-documented example is that my wife 
and children went to a corral and fed two flakes of hay to two cows and 
a baby calf we were holding in a corral to be moved. For the next 45 
minutes, they picked up trash left by weekenders and recreationists 
while two forest service employees sat in a pick up 100 yards away 
watching them. Not once did they approach them to help or ask what was 
going on. We later got a letter for our file for ``feeding on the 
forest.'' I would like to point out that, if we were recreationists 
with horses pleasure riding and were feeding our horses, that would 
have been ok. One last example: I received a letter for our file that 
we had painted a cabin that is one of 13 on FS lands that we use with 
our permit on the mountain because we failed to paint it an approved FS 
government color (we had done maintenance on it over the summer). After 
receiving the letter, I took pictures and paint swatches into the 
office and met with FS officials. It was then I learned after showing 
pictures of the color of the other cabins, the color we had used to be 
similar, it was then that I learned that in fact there were 
``approved'' colors to be in compliance with. However, the letter 
remains in our file and, like normal, no apology or rule appeal avenue 
to have the letter removed. All examples of how the FS operates outside 
of what I believe are Congress' intent.
    The FS has not coordinating with Gila County government. On 8/24/
2011 during a FS meeting, our county supervisor stated (because the 
agency would not allow us to review the document) ``the coordination 
process it allows us that opportunity to review that material'' and the 
forest official replied, ``We don't have coordination status with 
counties.'' Since that meeting, the FS has scrapped years' worth of 
work and just started over. Meanwhile, we are in limbo and have wasted 
hundreds of man hours going to meetings and reviewing documents that 
now has been for naught.
    Lastly I have spent hundreds of thousands of dollars and cost 
shared with the Federal Government to improve the land and enhance 
conservations. Once the projects were completed and inspected, the FS, 
no matter that they had paid nothing, claim to own the property and 
improvements once completed. The Bureau of Land Management rule making 
says that the agency would own 50 percent and the permittee would own 
50 percent. I wish that was the case on FS allotments as well.
    Once again, thank you for providing me with the opportunity to 
appear as a witness and I hope this supplement to my testimony proves 
valuable to the Subcommittee.

            Best Regards,

                                                 David Cook

                                 ______
                                 

    Mr. Labrador. Thank you.
    The Chair now recognizes Ms. Pinto for her testimony.

  STATEMENT OF KENDRA PINTO, COUNSELOR CHAPTER HOUSE MEMBER, 
                      NAGEEZI, NEW MEXICO

    Ms. Pinto. [Speaking native language.] Thank you, Mr. 
Chairman and Ranking Member, for the opportunity to testify 
before you today. My name is Kendra Pinto, and I am from Twin 
Pines, located in the Eastern Agency of the Navajo Nation in 
northern New Mexico. I live near Chaco Canyon in the San Juan 
Basin, often called the ``American Cradle of Civilization,'' 
where the Anasazi flourished between 900 A.D. and 1300 A.D.
    The laws of the Navajo Nation and the United States of 
America should protect people, our lands, and our health. I am 
here today to tell you how important Federal regulations are to 
my community.
    I was born in Shiprock, New Mexico, and raised in Twin 
Pines. I have always known New Mexico as my home, so it is 
appropriate that I share with you how I feel about the land. 
Growing up, there was no such thing as boundaries. We were free 
to roam the valleys and mountains, so long as we did not cause 
harm. The scenery is breathtaking and vast. On particular peaks 
in the area, I can spot Colorado, Utah, and Arizona, all in one 
quick sweep.
    My family did not just come upon Chaco, nor are we new to 
the land. My grandma was born less than half-a-mile away from 
where she currently resides. She is 92 years old.
    The oil and gas extraction in my community has caused a 
host of problems, from air pollution to truck traffic damaging 
our roads. The light pollution is increasing near and around 
Chaco Cultural National Historic Park with each well site that 
is created.
    In July of 2016, there was a massive explosion in a nearby 
community. The WPX well site fire in Nageezi, New Mexico, 
forced the evacuation of 55 residents. Some have yet to return. 
Thirty-six storage units holding oil and fracking fluid caught 
fire and exploded. The closest home sits less than 350 feet 
away. I can still hear those explosions, each sounding like a 
pop as the fire grew and became visible over the mountains. A 
young boy near the explosion site continues to be traumatized 
by the experience today.
    As is clear from the air testing we have done, and the 
latest scientific data clearly shows, oil and gas air pollution 
impacts people's health. Results from the air monitoring near 
Lybrook Elementary School revealed something rather alarming: 
elevated hydrogen sulfide levels at 7.6 micrograms per cubic 
meter. Hydrogen sulfide is commonly emitted by natural gas 
wells. Long-term exposure is associated with incidents of 
respiratory infections, irritation of the eyes and nose, 
coughing, breathlessness, nausea, headache, and mental 
symptoms, including depression.
    Federal standards like the BLM methane waste rule can 
lessen these harms and help protect our air and health. By 
capturing methane, oil and gas companies can also capture other 
air pollutants, reducing the amount of toxic volatile organic 
compounds that currently vent, flare, or leak into our air.
    This rule has a side benefit of preserving the resource 
operator's wish to sell to market, while protecting royalty 
revenues owed to taxpayers. Without a rule to curb methane 
emissions on public lands, we allow the industry to burn our 
money and our health away.
    I hope the explosion that devastated my community and the 
air pollution that is currently harming us illustrate why we 
must protect our sacred lands, water, and air resources. 
American and Navajo law must reinforce this support, not 
undermine it.
    Accordingly, Congress and the BLM should strengthen Federal 
protections like the BLM's fracking and methane rules. There is 
nothing wrong with demanding clean air and clean water. 
Everyone here needs those two things.
    Thank you for your time.

    [The prepared statement of Ms. Pinto follows:]
  Prepared Statement of Kendra Pinto, Counselor Chapter House Member, 
                             Navajo Nation
    Mr. Chairman and Ranking Member, thank you for the opportunity to 
testify before you.
    My name is Kendra Pinto, and I'm from Counselor Chapter, Navajo 
Nation, in northern New Mexico. I live near Chaco Canyon, in the San 
Juan Basin, often called the American Cradle of Civilization, where the 
Anasazi flourished between 900 A.D. and 1300 A.D.
    The hub of the Chacoan society is a series of well-designed 
villages housing some 6,000 people who navigated the countryside using 
perfectly straight roadways etched into the landscape. The descendants 
of the Chaco culture are some of the modern Southwest tribal nations. 
The Chaco ruins are sacred to the Navajo, Hopi and Pueblo peoples.
    Today, the Greater Chaco Canyon area spans over 30,000 square miles 
and remains a sacred source of our cultural heritage. The laws of the 
Navajo Nation and the United States of America should offer protections 
for my people and our lands, not take them away.
                 federal protections for greater chaco
    President Theodore Roosevelt first designated 20,629 acres of Chaco 
Canyon as a National Monument in 1907. Chaco's boundaries were later 
expanded in the 1920s.
    During the 1950s and 1960s, energy and mineral development in the 
San Juan Basin lead to additional archeological discoveries. In 
response, Congress in 1980 added an additional 33 sites totaling 
approximately 8,800 acres.
    These ``Chaco Culture Archeological Protection Sites'' are managed 
primarily by the Navajo Nation, Bureau of Land Management (BLM), and 
the Bureau of Indian Affairs (BIA). Today, the National Park Service 
(NPS) manages the core area of Chacoan ruins--known as Chaco Culture 
National Historic Park (Chaco NHP).
    Chaco NHP is also a UNESCO World Heritage Site.
               how oil and gas has impacted my community
    I was born in Shiprock, NM and raised in Twin Pines, NM. I have 
always known New Mexico as my home so it is appropriate that I share 
with you how I see this land. Growing up there was no such thing as 
boundaries. We were free to roam the valleys and mountains so long as 
we did not cause harm. This is what I find difficult to talk about in 
an audience such as this. Not all in this room will feel with their 
heart the moments I share with you. The moments rooted so deep in 
feelings there are no words. The love for the land must be felt. It is 
not only my story that should compel you; it can be heard in areas 
throughout the country from others who know the importance of life.
    I have a tendency to take long hikes. During these hikes there is 
no time clock to worry about. It is just nature and me. The scenery is 
breathtaking and vast. On particular peaks in the area I can spot 
Colorado, Utah, and Arizona all in one quick sweep. Where else can you 
do that in one glance? The placement of my family in the Chaco region 
is no mistake and we are not new to the land. Living on and with the 
land is also something we have not just discovered. There are numerous 
plants used for medicinal properties by our people and are currently 
being torn down to make way for steel barrels and a vast network of 
pipes. The effects of the activity taking place right now in my 
community is not only causing physical damage to the land but it is 
also causing mental strain to the people.
    I have spoken with Elders who tell me of how plants used to grow 
here and there but now don't grow at all. The plants they speak of grow 
wildly among the landscape and cannot simply be replaced by going to a 
convenience store. Among the wildly growing plants of our area are also 
beds of gardens. There is a collective concern within our small 
communities and it is food and water. Our closest grocery store is 
nearly an hour away. Those who do not have running water must haul 
their water from either of two water stations made available to 
residents. Grocery trips must be planned for the month ahead. This is 
one of the many reasons gardens have begun to find themselves 
multiplying. But it also must fight like us--fight the gases that 
settle on its skin and fight to breathe.
    My grandmother was born less than half a mile away from where she 
currently resides. She is now 92 years old. I listen to her stories and 
try to imagine what life was like in the 1920s and 1930s. I've often 
asked my Grandma of the past. She tells me stories of her younger days; 
seeing her first automobile when she was 11, hearing of JFK's 
assassination on the radio while weaving at the local chapter house. I 
always look at my grandmother in amazement. Her stories are here. Here 
in this valley next to a World Heritage Site, so hidden that the homes 
of people in the Chaco area were not marked on the BLM State map until 
for the first time in 2015.
    In July of 2016, there was a massive explosion in a nearby 
community. The WPX well site fire in Nageezi, NM started just after 10 
p.m. and forced the evacuation of 55 residents. Thirty-six storage 
units, holding oil and fracking fluid, caught fire and exploded. I can 
still hear those explosions, each sounding like a pop as the fire grew 
and became visible over the mountain. I was not on site for the initial 
explosion so I cannot imagine what it was like. The families who live 
in the area do not have that luxury. As the fire grew and continued to 
burn that night, residents were parked along Highway 550 watching the 
fire because they did not have a place to go. There was no public 
evacuation or emergency plan. How can this be when well sites are 
located next to houses, one in particular less than 350 ft. away from 
the explosion site. The family living closest to the explosion have not 
returned. The house sits empty. I do not know of any plans of their 
return, should they decide to move back in. One of the young children 
located near the explosion site still has moments of stress when he 
hears loud, banging noises. How does this not count as a negative 
impact of fracking? How is this not being talked about more, of locals 
risking their lives by simply being near a pipeline or well site? 
Locals who have been here for decades, some even before oil pumps were 
tragically peppered in the Greater Chaco region.
    I hear stories of relatives buried within the lands. Unmarked 
graves scattered throughout the region but somehow unimportant to 
outside industries who are there for one purpose only. How are the 
Indigenous people of this land, Our Land, still being treated with 
little or no respect and made to look like stereotypical, savage 
``Indians'' when all we talk of is for fair and just treatment of 
Mother Earth, The Earth which provides for us. We have begun to lose 
sight of who we are. We believe we are immortal. We believe there will 
be no repercussions to our actions. We believe we live in a world 
hosting unlimited resources and extraction is the best possible way to 
improve life. That's not sustainability, it is dependability.
    The area where I live is commonly known as ``The Checkerboard 
Area'' because placed on a map, the land is fragmented between Federal, 
state, private, allotment, and tribal trust lands. It is because of 
this checkerboard issue that well sites can be relatively close to 
houses. There are no visible boundaries among this checkerboard area. 
There is no distinct border to separate BLM public land and allotment 
lands. But you would not know this if you're not from the area. Looking 
at a map does not show you the people who have lived there for 
generations. Looking at a map falsely projects the idea that a fence 
surrounds the different sections of land.
                     air pollution in my community
    The air monitoring I have done showed something rather alarming. At 
the well site located across the highway from Lybrook Elementary School 
showed elevated levels of hydrogen sulfide. Disturbingly close to 
children yet continues to operate as if nothing is wrong.
    Hydrogen sulfide was detected in the sample collected along Highway 
550 at mile marker 100 north of the Lybrook School at a level of 7.6  
g/m3.
    Hydrogen sulfide is commonly emitted by natural gas wells because 
raw natural gas is commonly contaminated by hydrogen sulfide.
    Hydrogen sulfide is a gas that possesses a potently offensive odor 
of rotten eggs. Long-term exposure to hydrogen sulfide is associated 
with an elevated incidence of respiratory infections, irritation of the 
eye and nose, cough, breathlessness, nausea, headache, and mental 
symptoms, including depression. The California OEHHA has established a 
chronic reference exposure level for hydrogen sulfide of 10  g/m3 (for 
preventing effects on the respiratory system) and an acute reference 
exposure level for hydrogen sulfide of 42  g/m3 (for preventing 
headache, nausea, and physiological responses to odors). The U.S. EPA 
reference concentration for hydrogen sulfide is 2  g/m3 (for preventing 
nasal lesions of the olfactory mucosa).
    The level of hydrogen sulfide detected in the sample collected 
north of the Lybrook School exceeds the U.S. EPA reference 
concentration for hydrogen sulfide, but is below the California OEHHA 
has established a chronic reference exposure level for hydrogen 
sulfide. If hydrogen sulfide levels of 7.6  g/m3 north of Lybrook 
school generally prevail, then these levels may pose some risk to human 
health.
                         blm methane waste rule
    As is clear from the air testing we've done, and the latest 
scientific data, that oil and gas air pollution impacts people's 
health. The toxic gasses from oil wells and processing facilities waft 
about the air we breathe. Much of this pollution is invisible, but we 
know from optical gas imaging cameras that help us see the pollution 
firsthand that it is there.
    Federal standards like the BLM methane waste rule can lessen the 
harm to people living with oil and gas facilities in their communities. 
Nationally, there are more than 750,000 summertime asthma attacks in 
children under the age of 18 due to ozone smog resulting from oil and 
gas pollution, including over 12,000 in New Mexico.
    Each summer, there are more than 2,000 asthma-related emergency 
room visits and over 600 respiratory related hospital admissions 
nationally due to ozone smog resulting from oil and gas pollution. 
Children miss 500,000 days of school nationally each year due to ozone 
smog resulting from oil and gas pollution.
    The BLM's methane waste reduction rule protects our air and health. 
By capturing methane, oil and gas companies also capture other air 
pollutants, reducing the amount of toxic volatile organic compounds 
that currently vent, flare, or leak into our air.
    These types of Federal protections not only protect our health, 
they also preserve the resource operators wish to sell to market and 
protects royalty revenues that are owed to taxpayers.
    Without a rule to curb methane emissions on public lands, we allow 
the industry to burn our money--and our health--away.
                     blm hydraulic fracturing rule
    Regulation matters because water is life. The BLM's hydraulic 
fracturing rule protects our dwindling water resources and reduces the 
chances of groundwater contamination. The rule improves standards for 
well casings, mechanical integrity, waste disposal, and chemical 
disclosure.
    Importantly, it creates a minimum standard, a basic level of 
protection for our tribal lands, the water flowing through them, and 
the people and wildlife who drink it. Rolling back this rule leaves my 
community more vulnerable.
federal land policy management act (flpma) blm resource management plan
    The Federal Land Policy Management Act (FLPMA) requires the 
Government to manage our lands ``in a manner that will protect the 
quality of scientific, scenic, historical, ecological, environmental, 
air and atmospheric, water resource, and archeological values.''
    Yet, BLM's current Resource Management Plan (RMP) for my region 
predates the arrival of hydraulic fracturing to the San Juan Basin by 
about 5 years. Nevertheless, BLM has extensively leased lands for oil 
and gas drilling around the Chaco NHP, and operators have hydraulically 
fractured hundreds of new wells.
    An updated RMP should balance energy development with other uses of 
our lands. The RMP should respect tribal wishes and preserve dozens of 
our Chaco Great House ruins including our vast network of ancient 
sacred roads.
                               conclusion
    I hope the explosions that devastated my community illustrate why 
we must protect our sacred lands, water, and air resources. American 
and Navajo law must reinforce this support, not undermine it. 
Accordingly, Congress and the BLM should strengthen Federal protections 
like the BLM's fracking and methane rules.
    There is nothing wrong with demanding clean air and clean water. 
Everyone here needs those two things. It should not be the deciding 
factor on how a human will treat another human
    Thank you for your time.

                                 ______
                                 

    Mr. Labrador. Thank you.
    The Chair now recognizes Ms. Maloy for her testimony.

STATEMENT OF CELESTE MALOY, DEPUTY ATTORNEY, WASHINGTON COUNTY, 
                              UTAH

    Ms. Maloy. Chairman Labrador, Ranking Member McEachin, 
Chairman Bishop, and members of the Subcommittee, thank you for 
inviting me to testify today. My name is Celeste Maloy; I am a 
deputy county attorney for Washington County, Utah. My primary 
focus in the county attorney's office is public lands law and 
policy.
    I regularly interact with Federal agencies on the 
challenges that face a rapidly growing county, where half of 
our land is managed by the Department of the Interior, and only 
16 percent is privately owned. My experience in interacting 
with land management agencies, particularly the BLM, is that 
administrative processes overshadow the agency mission given by 
Congress.
    We routinely see Federal agency employees treat their 
manuals and handbooks as if they are the ultimate law. When 
those manuals don't align with directly relevant statutory 
guidance, the manuals still prevail. I will focus on this 
problem with the Wilderness Act and FLPMA.
    First, the Wilderness Act. The Omnibus Public Lands 
Management Act of 2009 contains a section we refer to as the 
Washington County Lands Bill. It was the result of years of 
stakeholder negotiation and compromise. One of the county's 
motivations for participating was to settle the wilderness 
question. As a result of Wilderness Act inventories, Utah is 
full of wilderness study areas, or WSAs, that are managed for 
non-impairment of wilderness characteristics, but have never 
been declared wilderness by Congress.
    For the county, the lands bill was a way to end that 
uncertainty. In exchange for roughly a quarter of a million 
acres of declared wilderness within the county, we got an end 
to the endless inventory process, and a congressional release 
of WSAs. We were surprised and upset when the new resource 
management plans (RMPs) still required wilderness inventory. 
Our local BLM office insisted that they were following their 
manuals.
    I did some research, and I was even more surprised to find 
that BLM's wilderness manual does say that when Congress 
releases land from wilderness study, the BLM will take into 
serious consideration the congressional action. When Congress 
speaks, agencies should act, not consider.
    Now I will address FLPMA. In the same Washington County 
Lands bill, Congress clearly instructed the Secretary of the 
Interior to consider alternatives for a planned roadway that 
the county and local municipalities have known for years would 
be necessary to meet future transportation needs. That road was 
a major part of the balancing quid pro quo that led us to 
support the bill.
    After the bill was enacted, however, the BLM's draft RMP 
eliminated the possibility of any road with an exclusion area, 
which prohibits new rights-of-way. Knowing that the travel 
management plan could not contradict the RMP, the county went 
to BLM to correct the error. Local BLM employees told us that 
Congress screwed up in writing the bill. The statute says to 
consider route alternatives in the travel management plan, but 
that isn't how BLM considers new routes, and they couldn't 
allow a road in that area.
    Even with directly relevant statutory language, the agency 
used their administrative process to ignore the intent of the 
law. I am still amazed that an agency which derives its 
authority from congressional delegation dares to use 
administrative manuals to refuse to faithfully implement the 
laws Congress passes.
    Additionally, FLPMA and other statutes require land 
management agencies to cooperate with local governments and 
consider local land use plans in developing RMPs. This 
statutory language is good, but it is meaningless if it does 
not create actual partnership.
    Our experience has been that the BLM planners hold very few 
public meetings, where information is given but not exchanged. 
We are briefed, but not invited to participate. Although we are 
supposed to be cooperating agencies, local governments can 
comment after the alternatives are developed. Instead of 
cooperatively developing alternatives to be evaluated, we get 
canned language in the plans about the requirement to 
coordinate--no discussion of local plans and no explanation of 
inconsistencies with locally developed plans.
    Last, the multiple use mandate from FLPMA is being eclipsed 
by the exceptions. FLPMA says that lands are to be managed for 
multiple use, unless otherwise specified by law. Despite that 
language, WSAs, lands with wilderness characteristics, mineral 
withdrawals, exclusion areas, visual resource management areas, 
buffers around rock outcrops, and other restrictions on 
multiple-use activities are more common than multiple-use 
management.
    The elimination of uses seems to stem from a philosophy 
that all human impacts are negative impacts. Congress, by 
including multiple-use management in the BLM's Organic Act, 
clearly did not espouse the idea that humans should be forced 
off of public land. Multiple use was intended to be the rule, 
not the exception.
    Between the broadening of statutory authority through 
administrative processes, and the deference Federal courts give 
to agency decision making, local governments have few effective 
options for eliminating agency over-reach. We cannot vote them 
out of office. We cannot fire them.
    I am here because we need Congress to stop the expansion of 
agency authority.
    [The prepared statement of Ms. Maloy follows:]
Prepared Statement of Celeste Maloy, Deputy County Attorney, Washington 
                              County, Utah
    Chairman Labrador, Ranking Member McEachin and members of the 
Subcommittee--thank you for inviting me to testify today. My name is 
Celeste Maloy. I am a deputy county attorney for Washington County, 
Utah. My primary focus in the county attorney's office is public lands 
law and policy. I regularly interact with Federal agencies on the 
challenges that face a rapidly growing county where half of our land is 
managed by the Department of the Interior and only 16 percent is 
privately owned.
    My experience in interacting with land management agencies, 
particularly the Bureau of Land Management, is that administrative 
processes overshadow the agency mission given by Congress. We routinely 
see Federal agency employees treat their manuals and handbooks as if 
they are the ultimate law. When those manuals don't align with directly 
relevant statutory guidance, the manuals still prevail. I'll focus on 
this problem with the Wilderness Act and the Federal Lands Policy and 
Management Act, or FLPMA.
    First the Wilderness Act.

    The Omnibus Public Lands Management Act of 2009 contains a section 
we refer to as the Washington County Lands Bill.\1\ It was the result 
of years of stakeholder negotiation and compromise. One of the county's 
motivations for participating was to settle the wilderness question. As 
a result of Wilderness Act inventories, Utah is full of wilderness 
study areas, or WSAs, that are managed for non-impairment of wilderness 
characteristics, but have never been declared wilderness by Congress. 
For the county, the lands bill was a way to end that uncertainty. In 
exchange for roughly a quarter of a million acres of declared 
wilderness within the county,\2\ we got an end to the endless inventory 
process and a congressional release of WSAs.
---------------------------------------------------------------------------
    \1\ Public Law 111-11, Subtitle O, Washington County, Utah.
    \2\ The exact total is 256,337 acres of wilderness within 
Washington County.
---------------------------------------------------------------------------
    We were surprised and upset when the new resource management plans 
(RMPs) still required inventory for wilderness. Our local BLM office 
insisted that they were following their manuals. I did some research 
and was even more surprised to find that BLM's wilderness manual says 
that when Congress releases land from wilderness study, the BLM will 
``take into serious consideration the congressional action.'' \3\ When 
Congress speaks, the agencies should act accordingly . . . not just 
take it into serious consideration.
---------------------------------------------------------------------------
    \3\ Manual 6320 Considering Lands With Wilderness Characteristics 
in the BLM Land Use Planning Process(A)(1)(c).

---------------------------------------------------------------------------
    Now I'll address FLPMA.

    In the same Washington County Lands bill, Congress clearly 
instructed the Secretary of Interior to consider alternatives for a 
planned roadway that the county and local municipalities have known for 
years would be necessary to meet future transportation needs. That road 
was a major part of the ``balancing'' quid pro quo that led us to 
support the bill.
    After the bill was enacted however, the BLM's draft RMP \4\ 
eliminated the possibility of any road with an ``exclusion area,'' 
which prohibits new rights-of-way. Knowing that the travel management 
plan couldn't contradict the RMP, the county went to BLM to correct the 
error. Local BLM employees told us that ``Congress screwed up'' \5\ in 
writing the bill. The statute says to consider route alternatives in 
the travel management plan, but that isn't how BLM does things, and 
they couldn't allow a road in that area. Even with directly relevant 
statutory language, the agency used their administrative processes to 
ignore the intent of the law. I am still amazed that an agency, which 
derives its authority from congressional delegation, dares to use 
administrative manuals to refuse to faithfully implement the laws 
Congress passes.
---------------------------------------------------------------------------
    \4\ This reference is to the draft RMP. In the face of extreme 
political pressure, the final decision created an avoidance area 
(meaning roads should be avoided, but they aren't absolutely 
prohibited) where the road is planned through BLM managed lands. 
Layered on the avoidance area are several obstacles that still make a 
road all but impossible. The first layer is a plan to acquire private 
lands that are also part of the roadway and classifying them as 
exclusion areas) and prohibiting any take of desert tortoises (which 
includes picking tortoises up and moving them) or modification of 
tortoise habitat. The county has an incidental take permit and could 
mitigate for tortoise take, but the plan forbids rights of way that 
would result in any take.
    \5\ The phrase ``Congress screwed up'' was used several times, but 
in one meeting with state, city, county, and delegation staffers, both 
the NCA manager and the District Manager for BLM said they could not 
consider a road because Congress screwed up when they drafted the 
language.
---------------------------------------------------------------------------
    Additionally, FLPMA and other statutes \6\ require land management 
agencies to cooperate with local governments and consider local land 
use plans in developing RMPs. The statutory language is good, but it is 
meaningless if it doesn't create actual partnership. Our experience has 
been that the BLM planners hold a very few public meetings where 
information is given, but not exchanged. We are briefed, but not 
invited to participate. Although we are supposed to be ``cooperating 
agencies,'' local governments can comment after the alternatives are 
developed. Instead of cooperatively developing alternatives to be 
evaluated, we get canned language in the plans about the requirement to 
coordinate--no discussion of the local plans and no explanation of 
inconsistencies with locally developed plans.\7\
---------------------------------------------------------------------------
    \6\ NEPA requires that EISs describe inconsistencies with local 
plans and how it will reconcile differences. FLPMA requires BLM to stay 
apprised of local plans, consider plans that are germane, resolve 
inconsistencies to the extent practicable (defined as legal), and 
provide meaningful involvement for local governments. NFMA requires 
coordination with land planning efforts of state and local governments.
    \7\ The Draft RMPs that came out in 2015 had this canned language: 
``FLPMA Section 202(b)(9) directs that the BLM provide for involvement 
of state and local government officials in the land use planning and 
consider the provisions of tribal, state, and local plans that are 
relevant to the planning areas. BLM should attempt to resolve 
inconsistencies between Federal and non-Federal government plans, in 
the development of plans for public lands, to the extent those plans 
are consistent with the purposes, policies, and programs of the Federal 
laws and regulations applicable to public lands and the purposes of 
FLPMA.'' Then two county plans and two state park plans are listed 
without any discussion at all about how this draft plan was consistent 
with them. (Draft RMPs p. 899) The language about consistency is there, 
but no attempt was made to either explain how local plans were 
implemented or in what way local plans were inconsistent with Federal 
law. After intense political backlash to the draft plans, the final 
record of decision contains the same language quoted above, but with 
some additional language about coordination. ``As noted in Section 3.2, 
the cooperating Agencies (Washington County, Mohave County (AZ), and 
the State of Utah) were provided opportunities to provide input 
throughout the planning process. Consistency with agency and local and 
state government plans was primarily accomplished through 
communications and cooperative efforts (meetings and communications) 
between the BLM Planning Team and these Cooperating Agencies. The BLM 
is aware that there are specific county and state plan decisions 
relevant to aspects of public land management that are discrete from 
and independent of Federal law. FLPMA requires that the development of 
an RMP for public lands be coordinated and consistent with county plans 
to the extent possible by law and that inconsistencies between Federal 
and non-Federal Government plans be resolved to the extent practical 
(FLPMA, Title II, Section 202(c)(9)). However, the BLM is bound by 
Federal law and, as a consequence, there will be an inconsistency that 
cannot be resolved or reconciled where state and local plans conflict 
with Federal law. Thus while county and Federal planning processes 
under FLPMA are required to be as integrated and as consistent as 
practical, the Federal agency planning process is not bound by or 
subject to county plans, planning processes, or planning stipulations. 
In addition, the relevant goals, objectives, or policies of a county 
are often equivalent to an activity or implementation-level decision 
and not an RMP-level decision. The very specific county goals would be 
addressed in any subsequent BLM activity or implementation-level 
decision.'' In short, they are trying to use the exception to swallow 
the rule. Local plans are being dismissed as too specific for a plan or 
somehow, vaguely not consistent with Federal law. The language in FLPMA 
requiring consistency has been rendered all but meaningless by agency 
interpretation.
---------------------------------------------------------------------------
    Last, the multiple use mandate from FLPMA is being eclipsed by the 
exceptions. FLPMA says that lands are to be managed for multiple use 
unless otherwise specified by law. Despite that language, WSAs, lands 
with wilderness characteristics, mineral withdrawals, exclusion areas, 
visual resource management areas, buffers around rock outcrops, and 
other restrictions on multiple use activities are more common than 
multiple use management. The elimination of uses seems to stem from a 
philosophy that all human impacts are negative impacts. Congress, by 
including multiple use management in the BLM's organic act, clearly did 
not espouse the idea that humans should be forced off of public land. 
Multiple use was intended to be the rule, not the exception.
    Between the broadening of statutory authority through 
administrative processes and the deference Federal courts give to 
agency decision making, local governments have few effective options 
for limiting agency over-reach. We cannot vote them out of office. We 
cannot fire them. I am here because we need Congress to stop the 
expansion of agency authority.

                                 ______
                                 

  Questions Submitted for the Record by Rep. Bishop to Celeste Maloy, 
                Deputy Attorney, Washington County, Utah
    Question 1. Ranking Member McEachin entered into the hearing record 
an opinion that was issued by the Ninth Circuit Court of Appeals in the 
case, Oregon Natural Desert Association v. Bureau of Land Management 
which was decided on July 14, 2008. Are BLM's actions in this case 
distinguishable from the actions it has taken in Washington County, and 
if so, how?

    Answer. Washington County's situation is distinguishable from the 
Oregon case, ONDA v. BLM, because the area in Oregon that was being 
planned for didn't have congressional release language for wilderness 
planning. Congress, in the 2009 lands bill, said that: ``Congress finds 
that for the purposes of Section 603 of the Federal Lands Policy and 
Management Act of 1976 (43 U.S.C. 1782), the public land in the County 
administered by the Bureau of Land Management has been adequately 
studied for wilderness designation.'' OPLMA, Subtitle O, Sec. 1972(c).
    By contrast, in the ONDA case, the Ninth Circuit court found that 
the National Environmental Policy Act required BLM to at least consider 
the wilderness concerns posed by the ONDA group. BLM had argued that 
because of a lawsuit settlement over continuing inventory, they were no 
longer required to consider wilderness characteristics in land use 
planning. The court rejected that argument partly because of legal 
reasoning about whether the Attorney General had the authority to enter 
into the settlement.
    In Washington County, Congress released land that was not 
designated as wilderness form further wilderness study. BLM has already 
studied the wilderness characteristics of the land within the county, 
Congress has determined which areas to designate, and Congress has 
declared that the remaining land has been adequately studied for 
wilderness characteristics. Once Congress releases land from wilderness 
study, an administrative agency does not have the authority to act 
contrary to that release.
    ONDA v. BLM did not address a congressional release like the one in 
Washington County's lands bill. ONDA applies only to land use planning 
when Congress has not made wilderness decisions. Additionally, ONDA is 
not binding precedent outside of the Ninth Circuit; Utah is in the 
Tenth Circuit. For these reasons, the holding in ONDA v. BLM has no 
bearing on the BLMs duties in writing land use plans in Washington 
County.

    Question 2. In your written testimony you noted that in the Omnibus 
Public Lands Management Act of 2009, ``[c]ongress clearly instructed 
the Secretary of the Interior to consider alternatives for a planned 
road that the county and local municipalities have known for years 
would be necessary to meet future transportation needs.'' Could you 
provide your basis for making this assertion?

    Answer. My assertion that Congress was clear in instructing the 
Secretary to consider the road is based on the plain language of the 
statute and the press release from Senator Bob Bennett, who sponsored 
the bill.
    OPLMA, in Section 1977, which deals with travel management planning 
says: ``In developing the travel management plan, the Secretary shall 
in consultation with appropriate Federal agencies, state, tribal, and 
local governmental entities (including the County and St. George City, 
Utah), and the public, identify one or more alternatives for the 
northern transportation route in the county.'' The language is not 
ambiguous. Congress instructs the secretary to identify one of more 
alternatives for the route.
    Then-Senator Bob Bennett, who sponsored the bill, in his press 
release when OPLMA passed the senate said that ``as part of the 
comprehensive plan, BLM will . . . identify alternatives for a northern 
transportation route in Washington County.'' Therefore, I feel 
comfortable asserting that both the statutory language and the intent 
of Congress clearly called for the Secretary of the Interior to 
identify alternatives for a northern transportation route in the 
county.

                                 ______
                                 

    Mr. Labrador. Thank you. I thank all the witnesses for 
their testimony. And I would like to remind the Members that 
Committee Rule 3(d) imposes a 5-minute limit on questions.
    To begin questioning, I recognize myself for 5 minutes.
    Representative Cook, it is my understanding that 
environmental groups routinely use litigation during the 
resource management planning process as a means to prevent the 
issuance of grazing permits, or permit renewals.
    For the record, can you tell us what land use planning and 
environmental groups are most actively opposed to ranching 
operations in your community?
    Mr. Cook. Thank you for the question, Mr. Chairman, I would 
be glad to. I could give you some personal accountability in 
this. Western Watersheds, Center for Biological Diversity, 
Forest Guardians, those are some of the organizations that do 
this.
    Personally, how this has affected us is that we have a 
72,000-acre Forest Service allotment that is ran with 1,000 
head of cattle permitted off of 22 acres. We were unable to 
use, and still are unable to use, one-third of that ranch 
because of a lawsuit filed by one of those organizations, in 
which the cattle industry sided with the U.S. Forest Service. 
And the next day, when we showed up in court, the Forest 
Service, the agency, was sitting over there with the 
plaintiffs, and we didn't understand it. We called that the 
midnight agreement.
    For years, we were kept off of one-third of our allotment 
because the Forest Service said that was the agreement that was 
made in court. After years of asking for that agreement, 
finally receiving it, what we found out was not at all was that 
the agreement, there was just some monitoring to take place. 
Since then, the Forest Service has modified our permit and has 
removed those pastures, one-third of 72,000 acres of grazing, 
from our permit.
    Mr. Labrador. So, upon what basis do they claim to oppose 
such use of public lands?
    Mr. Cook. Well, they claim that the basis is to protect 
species when, in fact, that, to me, is the farthest thing from 
the truth. Their claim is that they are benefiting the 
threatened and endangered species by using acts like the 
Endangered Species Act.
    Mr. Labrador. Ms. Maloy, would you like to offer your 
perspective on how litigation is used to influence land 
management decisions, or perhaps provide insight as to how 
outside groups have abused the Equal Access to Justice Act?
    Ms. Maloy. Sure. In my experience dealing with Federal 
agencies, it feels like litigation and the fear of litigation 
seem to influence decision making more than the statutes that 
enable Federal agencies to have authority to act in the first 
place.
    In fact, with the lands bill that I mentioned in my 
testimony, the BLM got sued and a Federal judge set a deadline 
for the RMPs to come out, and that was followed. But the 
statute had set a deadline for the RMPs to come out 3 years 
after the Omnibus Public Lands Management Act, and they blew 
right past that deadline by 3 years.
    Mr. Labrador. Thank you, Ms. Maloy. I think we should 
change the title of this hearing to a line from your testimony: 
``When Congress speaks, agencies should act, not consider.'' 
That was amazing, to think that we would pass something as 
legislation, and that the agency and their manual thinks that 
they can just consider the acts of Congress. I think that is 
something that needs to change, and I thank you for your 
testimony.
    Mr. Cook, states like Idaho and Arizona were settled 
because the Federal Government wanted people to use the land to 
secure our food supply and boost our economy through resource 
development and the founding of towns and communities 
throughout the western United States. However, now, as you and 
our other witnesses have testified, they are actively 
discouraged from using the land upon which the communities in 
our Nation rely.
    We are not doing the multiple use that--Congress intended 
all these laws to allow multiple use on these lands, and the 
agencies continue to put resources and other issues ahead of 
the people that live in those communities. Can you explain a 
bit about how your family and your community have depended upon 
the land throughout the years, and how their failure to ensure 
multiple use in recent decades has impacted your community?
    Mr. Cook. Absolutely, Mr. Chairman. Thank you for the 
question.
    For instance, in grazing, the agency, the Forest Service, 
will try to push down your allotted numbers in your community. 
So, if you remember, 97 percent of the land in our entire 
county is Federal, and so we rely on 1.5 percent of private 
land, and the mining companies own the other 1.5 percent--so 
our tax base is limited. Twenty-five percent of our grazing 
fees goes to our local school districts, so by not allowing us 
to fully stock our allotments properly, we are taking money 
away from our local school districts which would receive the 
benefit from that. That is just a small example of how we are 
being impacted in western states.
    Mr. Labrador. Thank you. You mentioned that your grazing 
permit has been mired in the bureaucracy for 15 years. What 
excuse has the Federal Government given you for dragging out 
the standard for that long?
    Mr. Cook. Mr. Chairman, the excuse that we constantly get 
is they don't have time and resources, and then they are gone 
for fires, and things like that. But in my particular 
situation, these agency staff have time to go out and GPS salt 
blocks in pastures that are thousands of acres, and come back 
and do work like that, but they don't have the time to do the 
actual work that is required of them, such as their NEPA and 
their documentation work.
    Mr. Labrador. Thank you. I now recognize the Ranking 
Member, Mr. McEachin.
    Mr. McEachin. Thank you, Mr. Chairman.
    Ms. Pinto, in your testimony, you mentioned you found 
elevated levels of hydrogen sulfide near Lybrook Elementary 
School. Hydrogen sulfide can occur with methane. Can you talk a 
little bit about the health effects of exposure to hydrogen 
sulfide at 7.6 milligrams per cubic meter?
    Ms. Pinto. Thank you for that question. Well, with hydrogen 
sulfide, I think what we should be talking about are the 
effects on health, and it is commonly respiratory infections 
that happen--irritations of the eyes and nose, coughing, and 
breathlessness. This is--short of breath is not fun, nausea and 
headache--these are symptoms that are serious because they 
affect you, personally.
    Mr. McEachin. Thank you. When I look at the issues that 
come up in this community, like the methane rule, some seem 
like such common-sense solutions to me that I wonder why we are 
arguing about them. And I wonder how Americans outside of the 
DC bubble feel about them, especially those that identify as 
being with the other party.
    Ms. Pinto, I want to ask you about some polls that seem to 
support this notion that my colleagues on the other side of the 
aisle are not in step with this country, including their own 
supporters.
    In January of this year, Colorado College published their 
seventh annual survey of voters across seven western states. 
The poll found that in your home state of New Mexico, 74 
percent of respondents support continuing to require oil and 
gas producers to use equipment to prevent methane leaks.
    Surprisingly, an even higher percentage of New Mexican 
Republican voters support continuing to prevent methane levels, 
84 percent--the Democrats, which are at 74 percent, as we saw 
when the Republican Senate blocked the repeal of the BLM 
methane rule preventing methane leaks from oil and gas seemed 
to have bipartisan support.
    Can you share with us why you think this is?
    Ms. Pinto. Yes, thank you. Well, I believe it is because of 
the idea that it is a win-win situation. With the catching of 
methane, that will produce more--it will be economically 
beneficial, and it will protect the communities who are 
surrounded by these well sites by protecting their health.
    So, it is a win-win for public health, for the environment, 
and for taxpayers.
    Mr. McEachin. Thank you. I want to talk a little bit about 
the Nageezi fire last year. Can you share with us what happened 
that night?
    Ms. Pinto. Yes. The explosion happened around 10:00 at 
night. I received a message from a local community member about 
a fire. This was very surprising to me, because a fire, sure, 
that is dangerous; but at the time I did not know it was on a 
well site.
    As I tried to figure out what was happening, and tried not 
to panic, the smoke began to enclose my house. I can't explain 
to you what this smelled like, because it was not normal, I 
guess, would be the word. So, as I am sitting there trying to 
figure out what was happening, there was the care and concern 
for people who live in the immediate area.
    I drove to the site, and as I am driving there with my 
father and my sister, the explosions--the fire began to grow 
and grow. There was an orange pillar with this black smoke that 
was just stretching into the sky, to the east. That is a big 
deal. The east is very important to the Navajo people.
    How to explain in my words? It was very scary, because 
there was no emergency or evacuation plan in place at the time. 
The residents who were evacuated were sitting on the side of 
the highway for hours, trying to figure out where to go because 
they were told to go to Nageezi Chapter. It was locked at the 
time because there was no plan. And I believe there still is no 
plan, and we have requested that WPX provide a public emergency 
and evacuation plan for the local chapter houses.
    Mr. McEachin. What has been the effect on the community?
    Ms. Pinto. The effect, I think, is mostly fear. There is a 
fear that it will happen again. Because before, it was a what-
if scenario. Now it is when, again. There is fear and there 
is----
    Mr. McEachin. Can you talk a little bit about health 
impacts, if any?
    Ms. Pinto. Health impacts? Yes. About a week after the 
explosion, they were allowed to return to their houses. And one 
of the residents, who slept in his house that night, had to go 
to ER the next morning because he was having breathing 
problems. And he was in the hospital for a little bit. So, this 
had immediate effects. And as time continues to go on, we are 
going to start to see the health effects of what happened and 
what is still sitting there in the community.
    Mr. McEachin. I appreciate your testimony. I yield back.
    Mr. Labrador. Thank you. I now recognize Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman, and thanks, all of 
you, for your time today and your valuable testimony.
    Today, a lot has been said already about Federal land 
management laws. And before we get too far down the road, I 
just wanted to raise an issue that looks to be fairly common 
sense, and which seems to me to present a critical issue.
    In 2011, an official report by the Government 
Accountability Office found that Border Patrol's access to some 
Federal lands around the southwestern border has been limited 
of certain land management laws, one of them being the 
Wilderness Act. And this report followed a previous report with 
similar findings identifying that Customs and Border Patrol 
agents in charge of 14 of the 17 stations along the southern 
border reported that they had been unable to obtain a permit or 
permission to even access certain areas in a timely manner on 
account of regulatory red tape.
    I think this is a major public safety concern, and it seems 
clear to me the system is broken and that the Wilderness Act is 
in need of reform in this area.
    I wanted to ask Representative Cook, are you aware of 
anything that has been done or is currently being done to fix 
this problem?
    Mr. Cook. Thank you, sir. I appreciate the question. I am 
not aware of anything that is being done at this time, at this 
level. In Arizona, it is a huge problem. We have even lost some 
of our ranchers down there because of that, that have been 
murdered out in their pasture.
    The Pinal County sheriff is a good friend of mine, and he 
is constantly telling me about what restrictions are placed 
down there on the border, and that you cannot go through there 
because of exactly what you said, the wilderness.
    We think there should be some kind of a buffer zone on that 
national border. Law enforcement should not be hindered or 
handicapped or any way handcuffed and not be allowed to protect 
the citizens of this country.
    Mr. Johnson. I appreciate that. This question is for 
Supervisor Dillon.
    I would like to read a portion of a written response this 
Committee received from the Interior Department following a 
2011 hearing. It said, ``The Department has not determined 
which tribes on the list of recognized tribes published in the 
Federal Register may not have been under Federal jurisdiction 
on June 18, 1934. The Department has consistently stated that 
it will review tribal fee-to-trust applications on a case-by-
case basis.''
    So, the question is are you aware of a tribe ever being 
denied an application to put land into trust on the basis that 
the Department of the Interior determined that it was not under 
Federal jurisdiction in 1934?
    Ms. Dillon. I don't have any knowledge of that, sir.
    Mr. Johnson. According to a 2016 report done by the Oregon 
Office of Economic Analysis, a casino that was recently open on 
land placed into trust on behalf of the Cowlitz Tribe will cost 
the state $110 million per year in video lottery sales alone.
    Could you briefly describe some ways that localities may be 
adversely affected by land that is placed into trust by the 
Federal Government under Section 5 of the IRA?
    Ms. Dillon. I don't know if I have enough time to do that, 
but I will make an attempt.
    When land is taken into trust in the fee-to-trust process, 
the very first thing is it comes off the tax rolls. So, there 
is an immediate economic impact there. Tribes are able, because 
of their status, to engage in activities without regard to the 
impact on other businesses of a similar nature, without regard 
to unintended consequences that can occur.
    For instance, it is not uncommon to see an increase in 
certain kinds of criminal activity when casinos are 
established. It is not always the case, but it can happen. 
There can be impacts to highway systems, which the local 
government has to absorb.
    Every single aspect of what happens when you establish any 
kind of new business--when it happens in the fee-to-trust 
process, all of those impacts should be analyzed, the 
mitigation should be established. The Department should have a 
process for making sure that the mitigations are enforced. But 
that is not the process that we have in place right now.
    Mr. Johnson. In your estimation, are the viewpoints of 
state and local governments adequately taken into account in 
the fee-to-trust application process?
    Ms. Dillon. No, sir, they are not.
    Mr. Johnson. Why do you think that is?
    Ms. Dillon. I think that the Bureau of Indian Affairs, in 
its status as a trustee, is intent on taking land into trust 
for the benefit of Indians, and there is an inherent conflict 
there, if you will, between that trustee status and its 
responsibility to Native Americans, and its responsibility to 
engage in an oversight process, if you will, to consider the 
impacts on local government and other surrounding communities--
can be tribal communities that are nearby--and to balance those 
interests and arrive at a process that addresses all the 
mitigations.
    Mr. Johnson. Thank you very much.
    I am out of time, I yield back.
    Mr. Labrador. Thank you, and I recognize the gentleman from 
Arizona, Mr. Gallego.
    Mr. Gallego. Thank you, Mr. Chair.
    Mr. Cook, good to see you. Welcome back from Arizona. I 
just wanted to correct some things for the record, because what 
we say here does go into the record. You said two things, and I 
want to make sure that everyone quite understands what actually 
happened, being an Arizonan, particularly the murder of Robert 
Krentz. That did not happen on Federal land, that is correct.
    Mr. Cook. I am not sure exactly what the land ownership 
was, I just know it was in one of his pastures.
    Mr. Gallego. But it was not on any Federal land. It 
happened on his ranch, according to all stories and reports 
from the sheriff at that time. It was a horrible situation for 
those that are in the farming and cattle community. And for all 
Arizonans, it was a bad situation. I just want to make sure 
that we clarify that that did not occur on actual Federal land.
    Number two, you mentioned the Pinal County sheriff. I would 
like to also clarify that the Pinal County sheriff does not 
border the actual border. It is 100 miles north of the border. 
Is that correct?
    Mr. Cook. Yes, sir, that is correct, and they still have 
problems with the border, though.
    Mr. Gallego. Well, absolutely. And the whole country has 
problems with the borders. But just to clarify, he is not an 
actual border sheriff. But moving on--thank you, Mr. Cook, on 
that.
    Moving on, I would like to ask questions in the following 
manner. For Kendra, one of the Interior Department's primary 
mechanisms for intake of local input on issues within the 
jurisdictions, the Resource Advisory Councils, or RACs--these 
councils usually consist of 10 to 15 members of relevant 
stakeholders, and they have been great at finding consensus in 
bringing difficult problems, creating bottom-up solutions, and 
giving local voices to the Interior Department.
    Secretary Zinke recently made a decision to suspend 30 of 
these RACs until at least September. At the beginning of the 
month, 22 current and former members of Montana's RACs 
submitted a letter to Secretary Zinke, urging him to consider 
his actions that could result in less local input and less 
public land. I ask unanimous consent to enter that into the 
record.
    Mr. Labrador. Without objection.

    [The information follows:]

                       Bureau of Land Management

                                                       May 11, 2017

Hon. Secretary Ryan Zinke
Department of the Interior
1849 C Street, N.W.
Washington, DC 20240

    Dear Secretary Zinke:

    We write to you today with grave misgivings concerning recent 
actions by the U.S. Department of Interior (DOI) to remove public input 
and discussion from public lands management.
    As former and current members who served on the Bureau of Land 
Management's Western, Central, and Eastern Montana Resource Advisory 
Councils (RAC) the unprecedented suspension of these crucial citizen-
advisory groups has caught us by surprise.
    Resource Advisory Councils are a time-tested citizen engagement 
tool intended to help guide the Bureau of Land Management in the 
management of public resources issues. They are an important tool that 
helps ensure transparency and local input in many land-use decisions. 
RACs are made up of hard-working folks who volunteer their time to help 
guide land management decisions at the local level.
    By itself, this decision to suspend citizen-input seems ill-advised 
at best. However the action is even more suspicious when measured 
alongside another high-profile DOI decision to reconsider historic 
wildlife habitat and cultural protection accomplished through the 
Antiquities Act. With the current suspension in place, the 120-day 
review of past national monuments designations, including Montana's 
Missouri River Breaks, would be completed without the participation of 
local Resource Advisory Councils. The DOI, under your leadership, is 
now moving toward less public land and less public input which 
threatens the very fabric of the West.
    Citizen input via Resource Advisory Councils was crucial to the 
designation process that led to the Missouri River Breaks National 
Monument in Montana. In 1999, before the Monument was designated, the 
Central Montana Resource Advisory Council provided recommendations to 
Interior Secretary Bruce Babbitt. These consensus-based recommendations 
expressed the sincerest intent of its members to preserve the natural, 
wild, and historic values of the Missouri River Breaks. This was 
further reinforced by the well-documented participation of thousands of 
Americans and Montanans in support of Monument designation.
    Secretary Zinke, the robust public-participation that led to the 
creation of the Missouri River Breaks Monument runs counter to the 
current process the DOI has laid out. It seems your intended purpose is 
to use taxpayer money to reopen a public process with one hand while 
handicapping public participation with the other. Any findings or 
decisions that may arise from this top-down model would lack integrity 
and transparency. We fear it could even have the end-result of erasing 
the robust public process which led to the designation of the Missouri 
River Breaks in 2001.
    The Upper Missouri River Breaks National Monument is a special 
place and many of us collectively volunteered on a citizen advisory 
council to help see its future secured through a transparent and open 
public process.
    We take it personally when we see the federal government using 
taxpayer dollars to both negate the robust public input we provided 
while also silencing the valuable citizens advisory councils. We urge 
you to reconsider these bold actions that could result in less local 
input and less public land.


            Best Regards,

        Randy Gray (former Central 
        MT RAC member)                Jeff Sheldon (former Central MT 
                                      RAC member)
        Stan Meyer (former Central 
        MT RAC member)                Rita Harding (current Eastern MT 
                                      RAC member)
        Tony Bynum (former Central 
        MT RAC member)                Bernie Rose (former Eastern MT 
                                      RAC member)
        Mary Sexton (former Central 
        MT RAC member)                Cal Cumin (current Eastern MT RAC 
                                      member)
        Mary Fay (former Central MT 
        RAC member)                   Mike Aderhold (former Central MT 
                                      RAC member)
        Mary Frieze (current 
        Central MT RAC member)        Pat Johnson (former Western MT 
                                      RAC member)
        Larry Epstein (former 
        Central MT RAC member)        Mary Jones (former Central MT RAC 
                                      member)
        Hugo Tureck (current 
        Central MT RAC member)        Arlo Skari (former Central MT RAC 
                                      member)
        Ralph Knapp (current 
        Central MT RAC member         Ron Moody (former Central MT RAC 
                                      member)
        Bill Cunningham (former 
        Central MT RAC member)        Jean Belangie-Nye (current 
                                      Western MT RAC member)
        Aart Dolman (former Central 
        MT RAC member)                Margaret Gorski (current Western 
                                      MT RAC member)

                                 ______
                                 

    Mr. Gallego. At the same time, Secretary Zinke is meeting 
with industry left and right, including a full hour with oil 
and gas industry, based on the methane rule just alone. It 
makes it abundantly clear who this Administration is trying to 
serve.
    Ms. Pinto, based on the actions of this Administration so 
far, do you think the oil and gas industry needs more help 
making their desires known to Secretary Zinke and the 
Administration, or do you think they are reaching the corners 
of power easily, more so than in the past?
    Ms. Pinto. Do I have the light off? I am sorry. Can you 
please repeat the last part of that question?
    Mr. Gallego. Sure. Ms. Pinto, based on the actions of this 
Administration so far, such as neutering many of these RACs, 
and giving more time to industry, such as the oil and gas 
industry, particularly when it comes to the methane gas rule, 
do you think that they have enough access to power or not?
    Ms. Pinto. Did you say ``access'' ?
    Mr. Gallego. Yes, access.
    Ms. Pinto. Do they have more access to power?
    Mr. Gallego. Yes. I have a limited amount of time. Could 
you answer? Do they have more access, do you believe, than the 
normal citizen?
    Ms. Pinto. Yes, I do.
    Mr. Gallego. Thank you. So, based on your experience, 
should the Interior Department get less or more direct input 
from locals?
    Ms. Pinto. They should get more.
    Mr. Gallego. Thank you.
    Mr. Cook, in your testimony you say special land 
designations on lands that are already federally owned and 
subject to management decisions by the Federal Government, like 
wilderness designations, only create more burdens for Federal 
agencies, and typically serve to erode true multiple use in 
favor of a hands-off approach.
    Your testimony seems to indicate that you think land being 
federally owned, no matter what the state of the land is, means 
it is sufficiently protected, and that no more wilderness 
designation of Federal land is necessary at all. Presumably, 
that would include the protections conferred by the national 
monuments. That seemed like a very extreme view, to me, so I 
looked it up a little.
    A January 2017 poll of western states found that 86 percent 
of voters in Arizona supported keeping existing national 
monuments in Arizona, including 68 percent of Republican 
voters. Do you agree that existing national monuments in 
Arizona should be left in place? Existing, not expanding.
    Mr. Cook. Thank you very much for the question. I love the 
Grand Canyon, I think it is one of the Seven Wonders of the 
World. But----
    Mr. Gallego. Mr. Cook, I am not asking about the Grand 
Canyon, I am asking about all the existing national monuments 
in Arizona. Please answer yes or no.
    Mr. Cook. I think that they should be reviewed, sir.
    Mr. Gallego. They should be reviewed. Good.
    Celeste--pardon me, Ms. Maloy--there has been some dispute 
about the interpretation of Section 5 of the Indian 
Reorganization Act and the occasions of the existing case law 
from the lower DC courts. In your testimony, you favor a 
temporal--pardon my language today--restriction that would 
require a tribe's formal Federal recognition as of 1934 in 
order to take the land into trust.
    Can you elaborate as to why you think this restriction is 
prudent?
    Ms. Maloy. I cannot. I think you are mixing my testimony up 
with somebody else. I did not address the Indian Reorganization 
Act.
    Mr. Gallego. I apologize. My notes are off. And actually, I 
am out of time, anyway. I yield back my time. Thank you.
    Mr. Johnson [presiding]. Thank you. The Chair recognizes 
the gentleman from Texas, Mr. Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you. I appreciate you all being here. I 
certainly sympathize with the problems of an explosion and the 
problems that it brought, Ms. Pinto. I come from East Texas, 
where, during the Depression, the largest known oil reserve in 
the world at that time was discovered. And it lifted hundreds 
of thousands of people out of poverty. People flooded into our 
area; it gave them jobs, it gave them hope, it gave them the 
ability to pay for health care.
    And, I think Churchill said that the allies flowed into 
victory in their defeat of the Nazis and all the hate that 
represented on the East Texas oil field, or oil.
    So, I know there are positives and I know there are 
negatives, but having personally seen how many people had been 
provided jobs, self-respect, the ability to take care of 
themselves, the ability to lift themselves out of poverty when 
there was really nothing else that seemed to do it, having seen 
the poverty return, the joblessness during the Obama 
administration in East Texas, people scrambling, trying to find 
jobs, but the oil and gas industry being particularly hard hit, 
I watched it around our area, people begging for jobs, but the 
government regulation, the government pressures making it just 
difficult, seeing self-respect plummet, seeing the ability to 
take care of one's health care needs plummet, I see that there 
are two sides to that issue.
    But, we learn by asking questions. I was wondering--you are 
from Counselor Chapter, Navajo Nation, northern New Mexico, and 
I love hearing and reading of your long hikes. What a 
nourishing thing when you can take long hikes, though 
understanding some plant life is not there. But how do you make 
a living?
    Ms. Pinto. Well, fortunately, I live in an area where I can 
grow my own food, and I don't have to leave my house. So, there 
is no high, high priority for me to be able to have access to 
gas and oil. Making a living out there, for me, is a little 
simple, and I think that has a lot to do with my upbringing.
    Mr. Gohmert. Have you had any Federal Government agencies 
come in and tell you how you had to grow your food, or where 
you could, or where you couldn't grow food? Or do you get to 
make those choices on your own?
    Ms. Pinto. Not personally. And I think it has a lot to do 
with there are still frequent visits from departments and 
government-related bodies, so there is currently no push to 
keep gardens or any type of plans like that in----
    Mr. Gohmert. Yes, so is the Navajo Nation pretty well 
allowed to govern their own local territory?
    Ms. Pinto. Yes, I believe so.
    Mr. Gohmert. OK. So, Representative Cook, it sounds like 
that is what you are asking for, just the opportunity that the 
Navajo Nation has to have some say in your own governance of 
your own property. Am I getting that right?
    Mr. Cook. Yes, sir. When you spend years in a NEPA process 
for your grazing allotment, and you have a line officer for the 
Forest Service look at you, all of your partners, and family 
and take his hands and raise them above his head and say, ``I 
am up here, I make the decisions, here is what I do, and you 
all are down here, you are supposed to bring me ideas and to do 
the work,'' it is a life-changing event for you and your 
business in the state of Arizona.
    Mr. Gohmert. We also have a lot of farms or ranches in East 
Texas raising cattle. We have some people that raise crops, 
some that raise cattle. It is a nice, simple life. I worked on 
the farms a good bit myself, growing up.
    In raising those cattle, you are pretty much free--am I 
getting that--to choose where you let the cattle graze, without 
interference from the government?
    Mr. Cook. No, sir, that is not true. We go to the Forest 
Service, and we give them what we would like to do. Then they 
decide where and when and approve where we can put our cattle.
    In fact, the agency has even gone as far as wanting to GPS 
where we are allowed to put salt blocks for our cattle out on 
the range, which I did not agree with.
    Mr. Gohmert. Well, thank you. My time has expired. And I 
just hope and pray that maybe one of the results of this 
hearing will be that people in Arizona will have the same 
choice as the Navajo Nation has been able to have.
    Thank you, I yield back.
    Mr. Johnson. Thank you, Mr. Gohmert. The Chair recognizes 
the gentleman from Florida, Mr. Soto, for 5 minutes.
    Mr. Soto. Thank you, Mr. Chairman. And you will have to 
forgive me if I ask a question or two that may have already 
been asked. I just got here.
    So first, I wanted to ask about the thoughts on the methane 
rule. There is some push by the Department of the Interior to 
eliminate or weaken the rule, releasing more air pollution from 
hydrogen sulfide and volatile organic compounds into our 
communities. What is sort of the opinion on keeping the methane 
rule or not?
    [Pause.]
    Mr. Soto. Oh, to Ms. Maloy, please.
    Ms. Maloy. I am not prepared to comment on the methane rule 
today. That was also not in my testimony.
    Mr. Soto. Sorry. To Ms. Kendra Pinto.
    Ms. Pinto. Can you please repeat the last part of the 
question?
    Mr. Soto. Yes, I was asking about--there has been a push to 
maybe remove the methane rule, and was wondering how that may 
affect your community.
    Ms. Pinto. Well, if it is removed, then there is less 
protection for the people. I often have to remind people that 
this is not a Monday-through-Friday job. It is an activity that 
takes place 24/7.
    Mr. Soto. Also, we see some moves to potentially change 
fracking rules, which would eliminate basic standards for 
keeping wells from breaking, or discourage waste dumping into 
unlined pits. If we wanted to help safeguard dwindling water 
supplies, what would you recommend, as far as keeping or 
removing the fracking rule?
    Ms. Pinto. I am not prepared to answer that question right 
now.
    Mr. Soto. OK. I will yield back.
    Mr. Johnson. Thank you, Mr. Soto. The Chair recognizes the 
esteemed Chair of our Full Committee on Natural Resources, 
Representative Bishop, for 5 minutes.
    Mr. Bishop. Thank you. I want that engraved, ``esteemed,'' 
in the future here.
    [Laughter.]
    Mr. Bishop. Representative Cook and Ms. Maloy, thank you 
for being here. Just very quickly, tell me what is the impact 
on your counties' efforts to try to provide for education 
purposes, as well as things like transportation, with the 
Federal land restrictions that are put on those areas?
    If you could just quickly go through that--starting with 
you, Mr. Cook.
    Mr. Cook. Thank you, Chairman Bishop. First of all, like I 
said earlier, the grazing fees--we used to have 50,000 to 
55,000 head of cattle in Gila County. And of those grazing 
fees, 25 percent would go back to our rural school districts. 
As a State Representative, we are fighting for every fund that 
we possibly can to give to those school systems. Well, we don't 
have those with those grazing fees.
    As for the road construction, this road has been in 
existence for 80 or 100 years. Then all of a sudden, the Forest 
Service just found that this wilderness that was created 50 
years ago--they just found out that the boundary of that went 
over the 10 miles of road, so they are going to close it?
    Mr. Bishop. All right----
    Mr. Cook. So, it has had a tremendous impact.
    Mr. Bishop. Ms. Maloy, what happens in Washington County?
    Ms. Maloy. Well, I am not just an employee of Washington 
County, I am also a resident. I vote for people at the city, 
county, state, and Federal level to make decisions and do 
planning for things like transportation. And their hands are 
tied, because they do not manage the land within the county.
    Mr. Bishop. Has the county ever voiced their concerns with 
Federal land managers?
    Ms. Maloy. Yes. I----
    Mr. Bishop. And in Arizona, does the county voice their 
concerns with Federal land managers?
    Mr. Cook. Mr. Bishop, I would like to say that the Forest 
Service specifically told us in a meeting that they do not 
consult with county governments.
    Mr. Bishop. Don't get ahead of me. That was the next 
question. All right?
    [Laughter.]
    Mr. Bishop. You tried to consult, they told you that is not 
their job.
    Mr. Cook. Yes. They said they don't have to consult with 
county governments, according to FLPMA. They don't really 
recognize it, in my opinion.
    Mr. Bishop. I would like them to read the coordination 
clause.
    Anyway, yes, Ms. Maloy, what was the response you all got?
    Ms. Maloy. We have spent hundreds of hours over the last 
couple of years meeting with our Federal land management 
agencies to try to make sure they understand what our local 
plans are. And it has resulted in me being here today, giving 
this testimony.
    Mr. Bishop. See, that is one of the problems that we have, 
and we need to address in some particular way, because 
consultation is required of local governments. But what we have 
found out over and over again is consultation is not taking 
place, or at least they have strange definitions of what 
qualifies for consultation. That needs to be clarified, 
specifically by this Committee in some way, shape, or form.
    Ms. Maloy, if I can go back to you as well, you talked 
about the Omnibus Public Lands Management Act of 2009--great, 
great piece of legislation. According to that, it released 
wilderness study areas.
    Ms. Maloy. Yes.
    Mr. Bishop. But the BLM then told you their RMPs would 
count this as still going through the identifying lands with 
wilderness characteristics, even though that was not the intent 
of the legislation?
    Ms. Maloy. Yes.
    Mr. Bishop. So, why did the land agencies tell you that 
they weren't actually going to do what the intent of the 
legislation was?
    Ms. Maloy. Because of a lawsuit in Oregon, where BLM lost 
when they did not consider lands with wilderness 
characteristics in a very different fact pattern. They feel 
like they now are required to consider lands with wilderness 
characteristics, regardless of a congressional release.
    Mr. Bishop. So that, in essence, they did not want to do 
what the law told them to do, because it did not meet their 
handbook policies.
    Ms. Maloy. Yes.
    Mr. Bishop. Is that kind of a backwards approach to things?
    Ms. Maloy. It seems backwards to me.
    Mr. Bishop. In reality, as well, too. I appreciate the 
time, and I realize that we have a difficult time here going 
on, that you all have restraints with other elements.
    One of the things you have all reached upon are some 
difficulties that we have to deal with; and we have to deal on 
this Committee. So, I appreciate the question about trust, 
because lands to trust--everyone has the right, including 
tribes, to buy property, but what kind of input should local 
government have is a question. And, in my mind, I am not 
necessarily clear of where it should be, but we have to 
delineate what kind of input should take place in the future. 
What we had in the last administration did not necessarily 
facilitate that.
    What you said in both Arizona and in Utah is we have to be 
able to have that kind of coordination and consultation that 
was supposed to be in FLPMA. It was supposed to be part of the 
law, it is mentioned in the law, but we have never clarified 
what that is.
    I also have this feeling that the Department of the 
Interior is going to be dealt with much differently as we go 
forward. But the question is, what happens with the next 
Department of the Interior after that? And will we flip back 
and forth, swinging between land agencies that do care about 
the input from local governments versus those that do not? And 
is there some way in statute that we could actually quantify 
that, and provide a process that will go on beyond this 
particular administration into the next to guarantee that 
voices are going to be heard at the local level, which has not 
happened in the past?
    I apologize for going over, but I am also done. Mr. 
Chairman--Mr. Vice Chairman, the esteemed Vice Chairman?
    [Laughter.]
    Mr. Johnson. I want that in writing. Thank you, Mr. 
Chairman.
    And for what purpose does Mr. McEachin seek recognition?
    Mr. McEachin. Mr. Chairman, I would like to put a couple 
things in the record.
    I would ask for unanimous consent to enter the following 
documents into the record: a transcript from the Senate 
Subcommittee on Public Lands and Forests hearing that took 
place on April 22, 2008; the 2008 Ninth Circuit Court opinion 
in Oregon Natural Desert Association v. Bureau of Land 
Management; the April 28, 2017 order from the Interior Board of 
Land Appeals dismissing the appeal of Washington County, Utah; 
Subtitle O of Public Law 111-11; Section 201 of the FLPMA, 
which requires, not suggests, that the Interior Department 
maintain wilderness inventory.
    And I would ask for unanimous consent to introduce into the 
record the decision known as Carcieri, which allowed the 
Interior Department to recognize tribes that were not 
officially recognized in 1934.
    Mr. Johnson. Without objection, those documents will be 
entered into the record.

    [The information on Section 201 of the FLPMA follows:]

             Federal Land Policy and Management Act of 1976

                                TITLE II

                  LAND USE PLANNING; LAND ACQUISITION

                            AND DISPOSITION

INVENTORY AND IDENTIFICATION

Sec. 201. [43 U.S.C. 1711] (a) The Secretary shall prepare and maintain 
on a continuing basis an inventory of all public lands and their 
resource and other values (including, but not limited to, outdoor 
recreation and scenic values), giving priority to areas of critical 
environmental concern. This inventory shall be kept current so as to 
reflect changes in conditions and to identify new and emerging resource 
and other values. The preparation and maintenance of such inventory or 
the identification of such areas shall not, of itself, change or 
prevent change of the management or use of public lands.

(b) As funds and manpower are made available, the Secretary shall 
ascertain the boundaries of the public lands; provide means of public 
identification thereof including, where appropriate, signs and maps; 
and provide State and local governments with data from the inventory 
for the purpose of planning and regulating the uses of non-Federal 
lands in proximity of such public lands.

                                 ______
                                 

    Mr. Johnson. We thank the witnesses for their valuable 
testimony today as all of us seek to improve effectiveness and 
efficiency in our Federal laws and agencies, and I thank the 
Members for their questions.
    The members of the Committee may have some additional 
questions for the witnesses, and we ask that you respond to 
these in writing.
    Under Committee Rule 3.0 [sic], sorry, members of the 
Committee must submit witness questions within three business 
days following the hearing, and the hearing record will be held 
open for 10 business days for all these responses.
    If there is no further business, without objection, the 
Committee stands adjourned. Thank you again.

    [Whereupon, at 10:10 a.m., the Subcommittee was adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

            Leelanau County Board of Commissioners,
                                      Suttons Bay, Michigan

                                                       June 1, 2017

Hon. John W. ``Jack'' Bergman,
House Subcommittee on Oversight and Investigations,
Washington, DC 20515.

    Dear Congressman Bergman:

    My name is Ty Wessell and I am the District 4 Commissioner of 
Leelanau County. My district contains tribal trust land of the Grand 
Traverse Band of Ottawa and Chippewa Indians upon which several tribal 
families reside, and those families have resided on that land since the 
federal treaty allotment period in the 1855-1880s. I write to express 
my opinion on the recent oversight hearing on Indian trust land held on 
May 24 by the Investigative Oversight subcommittee of the House Natural 
Resources Committee.
    It has been brought to my attention that a California county 
commissioner witness alleged that land taken into trust under the 
Indian Reorganization Act (IRA) is an abuse of federal administrative 
discretion and detrimental to State county interests. While I cannot 
speak for California counties, I can freely speak as a Michigander and 
current county commissioner of Leelanau County that we have in general 
a large Indian population in the county, and in particular, I have 
several Indian families in my district; therefore, as both a county 
commissioner and a former superintendent of a public school system in 
Leelanau county, I can assure you that the presence of tribal trust 
land is not detrimental to our county, nor is it administratively 
abusive for the federal government to put land into trust for the 
benefit of tribal governments and tribal members.
    Leelanau County is situated squarely within a treaty-established 
reservation for the Grand Traverse Band of Ottawa and Chippewa Indians 
(GTB). Under the treaties of 1836 and 1855 a significant proportion of 
GTB land was ceded to the federal government; the treaties reserved 
land for GTB and several other bands. The 1855 treaty intended to 
established individual tribal trust allotments, a process that had its 
own deprivations that ultimately resulted in significant loss of Indian 
land. That Indian land loss had consequential effects of severe poverty 
for GTB Indians, dislocation, disease, loss of Indian families' members 
to adoption, death and loss of their cultural heritage and treaty 
recognized rights.
    The federal recognition of GTB in 1980, based on the long term 
federal-tribal relationship between the United States and GTB, and the 
subsequent positive federal trust land developments for housing, jobs, 
governmental structures under the IRA, have benefited both the county 
and tribal government and represent the best example of this nation's 
continuing commitment to Indian Tribes and the self-determination of 
Indian Tribes.
    Thank you for your time and consideration. I look forward to 
hearing back from you.

            Sincerely,

                                                Ty Wessell,
                                   County Commissioner, District 4.

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S 
                            OFFICIAL FILES]

Rep. McEachin Submissions

    --  Hearing Transcript from the Senate Subcommittee on 
            Public Lands and Forests dated April 22, 2008.

    --  Ninth Circuit Court opinion from ``Oregon Natural 
            Desert Association v. Bureau of Land Management'' 
            filed July 14, 2008.

    --  Order from the Department of the Interior Board of Land 
            Appeals dated April 28, 2017.

    --  Subtitle O of Public Law 111-11.

    --  United States Supreme Court opinion from ``Carcieri v. 
            Salazar'' decided on February 24, 2009.

    --  Letter addressed to the House Natural Resources 
            Committee, Subcommittee on Oversight and 
            Investigations from Greta Anderson, Deputy Director 
            of the Western Watersheds Project dated May 26, 
            2017.

    --  Statement to the House Natural Resources Committee, 
            Subcommittee on Oversight and Investigations from 
            Ernest Stevens Jr., Chairman of the National Indian 
            Gaming Association dated May 24, 2017.

    --  Letter to Chairman Labrador and Rep. McEachin from the 
            Hon. William Iyall, Chairman of the Cowlitz Indian 
            Tribe dated June 7, 2017.

    --  Letter to Chairman Labrador and Rep. McEachin from 
            Cedric Cromwell, Chairman of the Mashpee Wampanoag 
            Tribe dated June 7, 2017.

    --  Testimony to the House Natural Resources Committee, 
            Subcommittee on Oversight and Investigations from 
            United South and Eastern Tribes Sovereignty 
            Protection Fund dated June 7, 2017.

    --  Testimony to the House Natural Resources Committee, 
            Subcommittee on Oversight and Investigations from 
            the Ute Indian Tribe of the Uintah and Ouray 
            Reservation, dated June 8, 2017.

Rep. Gallego Submission

    --  Letter addressed to Department of the Interior 
            Secretary Ryan Zinke from members of Department of 
            the Interior's Resource Advisory Committees dated 
            May 11, 2017.

Rep. Bergman Submission

    --  Letter to Chairman Labrador and Ranking Member McEachin 
            from Mr. Thurlow ``Sam'' McClellan, Tribal Chairman 
            of the Grand Traverse Band of Ottowa and Chippewa 
            Indians dated June 6, 2017.

                                 [all]