[Federal Register Volume 59, Number 67 (Thursday, April 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8329]


[[Page Unknown]]

[Federal Register: April 7, 1994]


_______________________________________________________________________

Part VI





Department of the Interior





_______________________________________________________________________



Bureau of Indian Affairs



_______________________________________________________________________



25 CFR Part 248




Use of Columbia River In-Lieu Fishing Sites; Final Rule
DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 248

RIN: 1076-AC79

 
Use of Columbia River In-Lieu Fishing Sites

AGENCY: Bureau of Indian Affairs, Department of the Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule sets forth an amendment to the regulation at 
25 CFR 248.6 consistent with the decision of the Ninth Circuit Court of 
Appeals and the final Judgment in Sohappy v. Hodel, Ninth Circuit No. 
88-3531, 911 F.2d 1312 (9th Cir. 1990). The court declared invalid that 
portion of the regulation prohibiting permanent occupancy of the five 
Columbia River in-lieu fishing sites. This final rule will delete the 
prohibition against construction of permanent dwellings and structures 
on the five in-lieu sites.

EFFECTIVE DATE: This final rule is effective May 9, 1994.

FOR FURTHER INFORMATION CONTACT: Ron Eggers, Branch of Fisheries, 
Portland Area Office, Bureau of Indian Affairs, 911 NE 11th Ave., 
Portland, Oregon 97232-4169; Telephone No. (503) 231-6749.

SUPPLEMENTARY INFORMATION:

I. Background

    Several Pacific Northwest Indian tribes hold treaty rights to fish 
on the Columbia River. In the 1930's the construction of Bonneville Dam 
flooded some of the Indians' usual and accustomed fishing sites along 
the river. In 1945 Congress authorized acquisition of replacement sites 
to be held by the Secretary of the Interior for the use and benefit of 
the Indians. The five sites acquired under that authorization are 
managed by the Bureau of Indian Affairs pursuant to regulations in 25 
CFR part 248.
    Section 248.6 provides that ``no dwellings or structures shall be 
erected, placed, or maintained upon the sites, except that camping 
facilities may be placed thereon only as herein described and fish 
drying facilities and fishing platforms may be erected by Indians for 
use during the fishing season.'' The intent of the regulation was to 
prohibit permanent occupancy of the sites in order to provide a 
rational and reasonable means for ensuring health and safety on the 
sites and for providing a fair opportunity to all eligible Indians to 
use the sites for fishing purposes.
    Sohappy v. Hodel, Civil No. 86-715-FR (D. Or.), was filed by 
individual Indians and a group called ``Chiefs and Council of the 
Columbia River Indians'' in order to challenge the Bureau of Indian 
Affairs' eviction of several Indians living in permanent dwellings on 
the sites. The Federal District Court held that the regulation 
prohibiting permanent occupancy is consistent with rights reserved by 
treaty and with the 1945 statute authorizing acquisition of the five 
sites. The Ninth Circuit Court of Appeals reversed, holding that the 
1945 act and the tribes' treaties do not preclude construction of 
permanent dwellings at the sites. Sohappy v. Hodel, 911 F.2d 1312 (9th 
Cir. 1990). The case was remanded to the District Court where final 
Judgment was entered on August 30, 1991.
    The Judgment declares 25 CFR 248.6 invalid insofar as it prohibits 
permanent occupancy of the five sites and provides that the Bureau of 
Indian Affairs ``shall take good faith steps'' to amend the regulation 
consistent with the Ninth Circuit's decision and the final Judgment. 
The Judgment does not preclude the Bureau from taking reasonable 
actions necessary to enforce applicable health and safety laws. 
Therefore, the Bureau of Indian Affairs published the proposed 
amendment (57 FR 45258) to revise section 248.6 to delete the 
prohibition against construction of permanent dwellings and structures 
on the sites and to retain the requirement that the sites be used in a 
manner that conforms to applicable health, sanitation and safety laws.
    The Judgment in Sohappy v. Hodel does not affect the Indian tribes' 
right, title or interest in the sites or the nature and extent of the 
tribes' sovereign authority to use or manage the sites for fishing 
purposes under their treaties, Settler v. Lameer, 507 F.2d 231 (9th 
Cir. 1974). It is also important to note that the regulations in 25 CFR 
part 248 do not apply to the fishing access sites designated in Section 
401 of the Act of November 1, 1988. The Indian tribes, the Bureau of 
Indian Affairs, and the U.S. Army Corps of Engineers are working 
together on plans for development, management and regulation of the new 
fishing access sites.

II. Responses to Public Comments

    The following is a summary of the comments received by the Bureau 
of Indian Affairs in response to the proposed rule published on 
September 30, 1992 (57 FR 45258) and the Department's response to these 
issues.
    There were no comments on or objections to the proposed amendment 
to delete the prohibition against the construction of permanent 
dwellings and structures on the five in-lieu sites, which was the only 
subject matter of the proposed rule. However, several comments 
suggested that the requirement that the sites be used in conformity 
with applicable health, sanitation and safety standards be changed or 
deleted on the grounds that the requirement is contrary to the Judgment 
in Sohappy v. Hodel and illegally recognizes, or might be construed as 
recognizing, State or local regulatory authority over the in-lieu 
sites. Although this portion of the regulation was not the subject 
matter of the proposed rule, we addressed the comment in order to 
clarify the purpose and intent of the existing provision of the 
regulation.
    The regulation, as originally adopted in 1969, provides that the 
``sites must be used in a manner that conforms to the health, 
sanitation, and safety requirements of the State or local law, or, in 
the absence of appropriate State or local laws, to the health, 
sanitation, and safety recommendations of the U.S. Public Health 
Service.'' That portion of the regulation was not challenged by the 
plaintiffs in Sohappy v. Hodel. Moreover, the final Judgment in Sohappy 
v. Hodel expressly recognizes the Bureau's continuing authority to 
manage and maintain the sites consistent ``with the health and safety 
requirements of 25 CFR part 248 and other applicable laws.'' Therefore, 
the requirement that the sites be used in conformity with appropriate 
health, sanitation, and safety laws is not in conflict with the 
Judgment in Sohappy v. Hodel.
    The Bureau agrees that the States do not have regulatory 
jurisdiction or authority over the in-lieu fishing sites. The sites are 
Federal properties held by the United States for the benefit of the 
Indian tribes with treaty fishing rights in the Columbia River. The 
Bureau regulates and manages the sites as a matter of Federal law, but, 
in the absence of specific Bureau regulations governing health, 
sanitation, and safety requirements, the regulation provides for the 
incorporation by reference of State or U.S. Public Health Service 
standards. There were no comments which documented any instance of 
attempted State regulatory enforcement. Because it is clear the States 
lack regulatory authority at the sites, we do not believe there is any 
need to amend or delete this language from the regulation.
    Comments from the Yakima Indian Nation and the Confederated Tribes 
of the Warm Springs Reservation, suggest that management and regulation 
of the sites should be governed by the law of the tribe which ceded the 
territory wherein the sites are located. The sites are owned by the 
Federal government and are managed by the Bureau for the benefit of all 
the tribes with treaty fishing rights in the Columbia River, and 
therefore exclusive management cannot be granted to a single tribe, 
absent an agreement between all the affected tribes. The suggestion has 
not been adopted in this final rule.
    Finally, one comment suggested that the proposed regulation 
inappropriately affects the tribes' right, title and interests in the 
sites, restricts the Indians' right to use the sites for fishing and 
related purposes, and permits unreasonable actions by the agency, all 
contrary to the final Judgment in Sohappy v. Hodel. There was no 
documentation regarding any specific impact on the tribes' rights or 
suggestions of any specific language change. The Judgment in Sohappy v. 
Hodel declared the regulation invalid insofar as it prohibits permanent 
occupancy of the five in-lieu sites. The amendment specifically deletes 
the prohibition against construction of permanent dwellings and 
structures on the sites. We believe the final rule is consistent with 
the Judgment and no changes have been made.

III. The Final Rule

    This final rule is published in exercise of the authority delegated 
by the Secretary of the Interior to the Assistant Secretary--Indian 
Affairs by 209 DM 8.
    The Department has certified to the Office of Management and Budget 
that this final regulation meets the applicable standards provided in 
section 2(a) and section 2(b)(2) of Executive Order 12778.
    In accordance with Executive Order 12630, the Department has 
determined that this final rule does not have significant takings 
implications.
    The Department has determined that this final rule does not have 
significant Federalism effects.
    The Department of the Interior has reviewed this document under 
Executive Order 12866 and has determined that this is not a significant 
rule.
    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.) because of the limited applicability as stated above.
    The Department of the Interior has determined that this final rule 
does not constitute a major Federal action significantly affecting the 
quality of the human environment and that no detailed statement is 
required pursuant to the National Environmental Policy Act of 1969.
    There are no information collection requirements contained in this 
final rule that require the approval of the Office of Management and 
Budget under 44 U.S.C. 3501 et seq.

List of Subjects in 25 CFR Part 248

    Fisheries, Fishing, Indians.

    For the reasons set out in the preamble, part 248 of subchapter J 
of chapter I of Title 25 of the Code of Federal Regulations is amended 
to read as follows:

PART 248--USE OF COLUMBIA RIVER IN-LIEU FISHING SITES

    1. The authority citation for 25 CFR part 248 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9.

    2. Section 248.6 is revised to read as follows:


Sec. 248.6  Structures.

    Dwellings, camping facilities, and other structures such as fish 
drying facilities and fishing platforms may be erected, placed, or 
maintained on the sites for use in the conduct of treaty fishing and 
related activities. Sites must be used in a manner that conforms to the 
health, sanitation, and safety requirements of the State or local law, 
or, in the absence of appropriate State or local laws, to the health, 
sanitation, and safety recommendations of the U.S. Public Health 
Service. The privileges or right of access to or use of the sites of 
any individual may be suspended or withdrawn, in the discretion of the 
Area Director, when such individual having violated such health, 
sanitation, and safety requirements repeats such violation after having 
been given notice to cease and desist therefrom.

    Dated: March 15, 1994.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 94-8329 Filed 4-6-94; 8:45 am]
BILLING CODE 4310-02-P