Navajo Partitioned Land Grazing Regulations

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 161

RIN 1076-AC81

Navajo Partitioned Land Grazing Regulations

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

ACTION: Proposed rule.

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SUMMARY: The Bureau of Indian Affairs proposes to add Part 161 to 25

CFR to govern the grazing of livestock on the Navajo Partitioned Land

(NPL) of the Navajo-Hopi Former Joint Use Area (FJUA) of the 1882

Executive Order reservation. The purpose of these regulations is to

conserve the rangelands of the NPL in order to maximize future use of

the land for grazing and other purposes.

DATES: Comments on these proposed rules must be submitted by January 2,

1996.

ADDRESSES: Send comments to Bureau of Indian Affairs, Division of Water

and Land Resources, Room 4559, 1849 C Street N.W., Washington, DC

20240, or telephone number (202) 208-4004.

FOR FURTHER INFORMATION CONTACT: Robert Curley, (602) 871-5151, Ext.

5105, at the Navajo Area Office in Window Rock, Arizona.

SUPPLEMENTARY INFORMATION: As a result of the long-standing dispute

between the Hopi Tribe and the Navajo Nation over beneficial ownership

of the reservation created by the Executive Order of December 16, 1882,

Congress passed the Act of July 22, 1958, 72 Stat. 403, which permitted

the Navajo Nation and the Hopi Tribe to sue each other in federal court

to resolve the issue. The Hopi Tribe initiated such a suit on August 1,

1958, in United States District Court for the District of Arizona in

Healing v. Jones, 174 F. Supp. 211 (D. Ariz. 1959), (Healing I). The

merits of the case were heard by a three judge panel of the United

States District Court for the District of Arizona in Healing v. Jones,

210 F. Supp. 125 (D. Ariz. 1962) aff'd 373 U.S. 758 (1963), (Healing

II) after the initial procedural challenges to the suit were dismissed

in Healing I. The district court determined that while the Hopi Tribe

had a right to the exclusive use and occupancy of a portion of the 1882

reservation known as District 6, it shared the remaining lands of the

1882 reservation in common with the Navajo Nation. Disputes between the

two tribes continued over the right to use and occupy the 1882

reservation in spite of the district court's decision in Healing II,

which was affirmed by the Supreme Court. In an attempt to resolve these

ongoing problems, Congress enacted the Navajo-Hopi Settlement Act, 25

U.S.C. 640d--640d-31, which provided for the partition of the Joint Use

Area of the 1882 reservation, excluding District 6, between the two

tribes. The Act was amended by the Navajo-Hopi Indian Relocation

Amendments Acts of 1980, 94 Stat. 929, due to the dissatisfaction

expressed by both tribes with the relocation process.

The Relocation Act Amendments added subsection (c) to 25 U.S.C.

640d-18. It required the Secretary of the Interior to complete the

livestock reduction program contained in 25 U.S.C. 640d-18(a) within 18

months of its enactment. The new subsection also required that all

grazing control and range restoration activities be coordinated and

executed with the concurrence of the tribe to which the land had been

partitioned. In 1982, the U.S. District Court for the District of

Arizona determined in Hopi Tribe v. Watt, 530 F. Supp. 1217 (D. Ariz.

1982), that the grazing regulations contained in Part 153 of 25 CFR

were invalid with respect to the 1882 reservation partitioned to both

the Navajo Nation and the Hopi Tribe. The court reached that conclusion

because the regulations did not provide for the concurrence of the

Navajo Nation or the Hopi Tribe as required by the Relocation Act

Amendments. The district court's ruling was upheld by the Ninth Circuit

Court of Appeals in Hopi Tribe v. Watt, 719 F. 2d 314 (9th Cir. 1983).

As a result of the decision in Hopi Tribe v. Watt, Id., the Bureau

of Indian Affairs sought the written concurrence of the Navajo Nation

for the regulations which are herein published. The concurrence of the

Navajo Nation to these regulations was provided by the Resources

Committee of the Navajo Nation Council pursuant to resolution No. RCAP-

079-92 of April 29, 1992. Non-substantive, editorial changes have been

made to the proposed regulations which were approved by the Navajo

Nation.

These regulations are being issued to implement the Secretary of

the Interior's responsibilities mandated by the Navajo-Hopi Settlement

Act, as amended by the Relocation Act Amendments, and the previously

cited federal court decisions. In 1982 Part 152 of 25 CFR was

redesignated as Part 167 and Part 153 of 25 CFR was redesignated as

Part 168. All grazing permits issued for the Joint Use Area under the

old 25 CFR Part 152, some of which dated from 1940, were canceled

within one year pursuant to the Order of Compliance issued on October

14, 1972, by the U.S. District Court of the District of Arizona in

Hamilton v. MacDonald, Civ. 579-PCT. From 1973 through 1978 the Bureau

of Indian Affairs did not issue grazing permits for the Joint Use Area

because it was necessary to complete a census of the human and animal

populations of the Joint Use Area (JUA) in conjunction with a

calculation of the range's carrying capacity and stocking rates.

However, in late 1977 the Joint Use Area Administrative Office of the

Bureau of Indian Affairs at Flagstaff, Arizona, completed its inventory

and began issuing annual grazing permits to the residents of the JUA.

These interim permits were limited to one year by order of the federal

district court. Since the 1982 ruling in Hopi v. Watt, 530 F.2d 1217

(1983), declaring that the pre-1982 regulations were invalid, the

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Bureau of Indian Affairs has been subject to the provisions of the

Navajo-Hopi Settlement Act, as amended, which require the development

of new grazing regulations for the Navajo Partitioned Land with the

concurrence of the Navajo Nation. These regulations are the product of

that consultation.

The grazing regulations in the proposed rules apply only to the

Navajo Partitioned Lands.

It is the policy of the Department of the Interior to afford the

public an opportunity to participate in the rulemaking process whenever

feasible. Accordingly, interested parties may submit written comments,

suggestions or objections regarding these proposed rules to the office

identified in the ``ADDRESS'' section of the preamble. The primary

author of this document is Robert Curley, P. O. Box 1060, Gallup, New

Mexico 87305, telephone number 602/871-5151, Ext. 5106.

The Department of the Interior has determined that these proposed

rules do not constitute a major federal action significantly affecting

the quality of the human environment. Thus, no detailed environmental

impact statement is required by the National Environmental Policy Act

of 1969, 42 U.S.C. 4332 (1988).

The information collection requirements contained in these rules do

not require the approval of the Office of Management and Budget under

44 U.S.C. 3501-3520.

E.O. 12866 Statement

This rule has been reviewed under Executive Order 12866.

Regulatory Flexibility Act Statement

This rule will not have a significant economic impact on a

substantial number of small entities under the Regulatory Flexibility

Act, 5 U.S.C. 601-612 (1988).

Takings Implication Assessments (E.O. 12630)

In accordance with E.O. 12630, the Department has determined that

these proposed rules do not have significant takings implications.

List of Subjects in 25 CFR Part 161

Grazing lands, Indian lands, Livestock.

For reasons set forth in the preamble to this part, the Bureau of

Indian Affairs proposes to add part 161 to title 25, chapter I of the

Code of Federal Regulations as it appears below.

25 CFR PART 161--NAVAJO PARTITIONED LAND GRAZING REGULATIONS

Sec.

161.01 Definitions.

161.02 Authority.

161.03 Purpose.

161.04 Scope.

161.05 How range units are established.

161.06 Establishing and implementing Range Management Plans.

161.07 How range improvements are treated.

161.08 How carrying capacity and stocking rate are established.

161.09 Restriction on grazing permits.

161.10 Eligibility and priorities for issuing grazing permits.

161.11 How grazing permits are allocated.

161.12 Provisions required in all grazing permits.

161.13 Procedures for issuing permits.

161.14 Duration of grazing permits.

161.15 Kind and classes of livestock that may be grazed.

161.16 How grazing fees will be assessed and collected.

161.17 How permits may be assigned, modified, or cancelled.

161.18 Establishing and administering special land uses.

161.19 Livestock trespass.

161.20 Impoundment and disposal of trespassing livestock.

161.21 Controlling livestock diseases and parasites.

161.22 Procedures for Navajo Nation concurrence.

161.23 How to appeal decisions on grazing permits.

161.24 Information Collection.

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 640d--640d31.

Sec. 161.01 Definitions.

As used in this part, terms shall have the meanings set forth in

this section:

Allocate means to apportion grazing privileges, including the

determination of who may graze livestock, the number and kind of

livestock, and the place such livestock shall be grazed.

Animal unit (AU) means one adult cow with unweaned calf by her side

or equivalent thereof based on comparative forage consumption. Accepted

conversion factors are: Sheep and Goats--one ewe, doe, buck or ram

equals 0.20 AU; one sheep unit year long (SUYL) equals 0.20 Animal Unit

Year Long: Horses and Mules--one horse, mule, donkey or burro equals

1.25 AU.

Animal Unit Month (AUM) means the amount of feed or forage required

by an animal unit for one month. The conversion factors under the

definition of animal unit apply. Thus, for sheep, one animal unit month

is the amount of feed or forage required by five sheep in one month.

Area Director means the officer in charge of the Navajo Area Office

for the Bureau of Indian Affairs (or his/her designee or authorized

representative).

BIA enumeration means the list of persons living on and

improvements located within the Former Joint Use Area obtained by

interviews conducted in 1974 and 1975 by the Project Officer's staff.

Carrying capacity means the maximum stocking rate possible without

inducing a downward trend in forage production, forage quality, or

related resources.

Class of animal means the age and/or sex of an animal. Example:

cow, calf; ewe, lamb; doe, kid; mare, colt; etc.

Concurrence means agreement by the Area Director and the Navajo

Nation.

Conservation practice means a method of management that seeks to

maintain and/or improve natural resources on a sustained yield basis.

Former Joint Use Area (FJUA) means the area established by the

United States District Court for the District of Arizona in Healing v.

Jones, 210 F. Supp. 125 (1962), aff'd 373 U.S. 758 (1963), that is

inside the Executive Order area [Executive Order of December 16, 1882]

but outside Land Management District 6, and that was divided between

the Navajo Nation and the Hopi Tribe by the Judgment of Partition

issued April 18, 1979, by the United States District Court for the

District of Arizona.

Grazing Permit means a revocable privilege granted in writing and

limited to entering on and utilizing forage by domestic livestock on a

specified tract of land. The term as used in this part shall include

written authorizations issued to enable the crossing or trailing of

domestic livestock across specified tracts or range units.

Hopi Partitioned Land or HPL means that portion of the Former Joint

Use Area which was partitioned to the Hopi Tribe.

Immediate family member means any of the following:

(1) The living spouse of a decedent who was a former permittee;

(2) The children of the deceased if the spouse is not living; or

(3) Siblings of the deceased if neither a spouse or children are

living.

Livestock inventory means the original list developed by the

Project Officer in 1976-77 of livestock owned by persons with a grazing

permit or shared grazing permit, and having customary grazing use in

the Former Joint Use Area under 25 CFR part 167 (formerly part 152).

Management unit means a subdivision of a range unit.

Nation or Navajo Nation means the Resources Committee of the Navajo

[[Page 55508]]

Nation Council, which has been delegated authority to exercise the

powers of the Navajo Nation with regard to the range development and

grazing management of the Navajo Partitioned Land.

Navajo Partitioned Land or NPL means that portion of the Former

Joint Use Area which has been partitioned to the Navajo Nation.

NPL Grazing Committee means the District Grazing Committee

established by the Navajo Nation that is responsible, in whole or in

part, for the NPL (affected areas).

Nonconcurrence means disagreement between the Area Director and the

Navajo Nation.

Project Officer means the Bureau of Indian Affairs official

(formerly the Special Project Officer of the Bureau of Indian Affairs

Administrative Office, Flagstaff, Arizona), to whom is delegated the

authority of the Commissioner of Indian Affairs to act in matters

regarding the Navajo Partitioned Land of the Former Joint Use Area.

Range improvement means:

(1) Any structure or excavation to facilitate management of the

range for livestock;

(2) Any practice designed to improve the range condition or

facilitate more efficient utilization of the range; or

(3) Any modification resulting in an increase in the grazing

capacity of the range.

Range management plan means a plan developed for the beneficial use

of a range unit.

Range unit or range allotment means an area designated for the use

of a prescribed number and kind of livestock under one plan of

management.

Resident is a person who lives on the Navajo Partitioned Land full-

time and previously utilized a customary use grazing permit under 25

CFR part 167 (formerly part 152).

Secretary means the Secretary of Interior or his/her designated

representative.

Settlement Act means the Act of December 22, 1974, 25 U.S.C. 640d--

640d-31.

Special land use means all land usage for purposes other than for

grazing or pasture lands, for which permits, leases, or assignments are

approved by the Area Director under Federal law, or by the Navajo

Nation under the Navajo Tribal Code.

Special management area means an area for which a single management

plan is developed and applied in response to special management

objectives such as watersheds, fire hazard areas, or other similar

concerns.

Stocking rate means the authorized number of Animal Units by range

unit. (``Carrying capacity'' as used in the Settlement Act denotes

stocking rate).

Useable land area means accessible land within a designated

management area producing forage suitable for consumption by livestock.

Sec. 161.02 Authority.

It is within the general authority of the Secretary to protect

Indian trust lands against waste and to prescribe rules and regulations

under which these lands may be leased or permitted for grazing. Under

the Navajo-Hopi Settlement Act, as amended, 25 U.S.C. 640d-8 and 640d-

18, the Secretary is authorized and directed to:

(a) Adjust livestock grazing within the Former Joint Use Area to

carrying capacity;

(b) Restore the grazing potential of the NPL to the maximum extent

feasible;

(c) Survey, monument, and fence the partition boundary;

(d) Protect the rights and property of individuals awaiting

relocation;

(e) Administer conservation practices, including grazing control

and range restoration activities, on the Navajo Partition Lands.

Sec. 161.03 Purpose.

The regulations in this part are issued to implement the

Secretary's responsibilities mandated by the Settlement Act. In general

the regulations in this part are intended to aid in the preservation of

forage, soil, and water resources on the Navajo Partitioned Land, and

to aid in the recovery of those resources where they have deteriorated.

Sec. 161.04 Scope.

The grazing regulations in this part apply to the Navajo

Partitioned Land within the boundaries of the Navajo Reservation held

in trust by the United States for the Navajo Nation.

Sec. 161.05 How range units are established.

(a) The Area Director, in consultation with the NPL Grazing

Committee and the grazing permittees, and with the concurrence of the

Navajo Nation, shall establish or, where it has been determined that

modification will significantly improve the management of all areas,

modify range units on the Navajo Partitioned Land to provide unified

areas for which range management plans can be developed to improve and

maintain soil and forage resources. Physical land features, watersheds,

drainage patterns, vegetation, soil resident concentrations, problem

areas, historical land use patterns, and comprehensive land use

planning shall be considered in the determination of range unit

boundaries.

(b) The Area Director may modify range unit boundaries to include

small and/or isolated portions of Navajo Partitioned Land with

contiguous Navajo tribal lands in order to develop more economical land

management areas. These modifications shall be made in consultation

with the affected NPL grazing permittees, the grazing permittees on

adjoining areas, the NPL Grazing Committee, and the Navajo Nation.

(c) Permittees must obtain archaeological clearances before any

fencing or other land disturbance. Pursuant to Public Law 93-531, as

amended, no action taken pursuant to, in furtherance of, or as

authorized by the regulations in this part shall be deemed a major

Federal action for purposes of the National Environmental Policy Act of

1969 as amended, 42 U.S.C. 4332.

Sec. 161.06 Establishing and implementing Range Management Plans.

(a) The Area Director shall confer with the Navajo Nation in

planning conservation practices for the Navajo Partitioned Land. The

Area Director shall develop range management plans in consultation with

the NPL Grazing Committee and the grazing permittees residing in each

range unit. After the Navajo Nation concurs with and the Area Director

approves the range management plan, the implementation of the plan may

begin immediately. The plan shall address, but shall not be limited to,

the following issues:

(1) Goals for improving vegetative productivity;

(2) Incentives for carrying out the goals;

(3) Stocking rates;

(4) Grazing schedules;

(5) Wildlife management;

(6) Needs assessment for range and livestock improvements;

(7) Schedule for operation and maintenance of existing range

improvements and the opportunities for installing privately or

cooperatively funded projects;

(8) Cooperation in the implementation of range studies;

(9) Control of livestock diseases and parasites;

(10) Fencing or other structures necessary to implement any of the

other provisions in the range management plan.

(b) Range management plans and actions shall require consultation

with the affected grazing permittees.

(c) All range management plans, actions and decisions shall be

submitted to the Navajo Nation for review and concurrence.

[[Page 55509]]

Sec. 161.07 How range improvements are treated.

Range improvements placed on the Navajo Partitioned Land shall be

considered affixed to the land unless specifically exempted in the

permit. No range improvement may be constructed or removed from Navajo

Partitioned Land without the written consent of the Area Director and

the Navajo Nation. All grazing permits shall state that the permittee

is responsible for maintenance of range improvements specifically

identified in the management plan.

Sec. 161.08 How carrying capacity and stocking rate are established.

(a) The Area Director, with the concurrence of the Navajo Nation,

must prescribe the carrying capacity of each range unit by determining:

(1) The maximum number of each kind of livestock that can be grazed

on the unit without damage to vegetation or related resources; and

(2) The season or seasons of use required to achieve the objectives

of the land recovery program required by the Settlement Act.

(b) The stocking rate of each range or management unit shall be

established by the Area Director, with the concurrence of the Navajo

Nation, and shall be based on forage production, range utilization, the

application of land management practices, and range improvements in

place to achieve uniformity of grazing under sustained yield management

principles on each range or management unit.

(c) The Area Director shall review the carrying capacity of the

grazing units on a continuing basis and adjust the stocking rate for

each range or management unit as conditions warrant.

(d) Any change in the stocking rate allowed in the grazing permits

will be prorated on an equal percentage basis among the grazing

permittees on the range or management unit.

Sec. 161.09 Restrictions on grazing permits.

Grazing use on range units is authorized only by permits granted

under this part. A state brand only identifies the owner of the

livestock, but does not authorize the grazing of any livestock within

the NPL. Only a grazing permit issued pursuant to the regulations in

this part authorizes the grazing of livestock within the NPL. Grazing

permits shall be subject to the following restrictions:

(a) Grazing permits shall not be issued or subdivided for less than

four animal units (20 sheep units);

(b) A grazing permit shall be issued in the name of one individual

unless otherwise approved by the NPL Grazing Committee and the Area

Director;

(c) Grazing permits shall be issued for use in one range unit only;

and

(d) Grazing permits may contain additional conditions authorized by

Federal or Navajo Tribal laws.

Sec. 161.10 Eligibility and priorities for issuing grazing permits.

(a) Eligibility. Only those applicants who meet the following

criteria are eligible to receive permits to graze livestock:

(1) Those who had valid grazing permits or shared grazing permits

under an extended family group agreement on Navajo Partitioned Land

under 25 CFR part 167 (formerly part 152) and whose permits were

cancelled on October 14, 1973;

(2) Those who are listed in the 1974-1975 FJUA enumeration;

(3) Those who are current residents on Navajo Partitioned Land; and

(4) Those who do not presently hold a valid grazing permit in a

land management district within the Navajo Indian Reservation.

(b) Priorities. Applicants who are eligible to receive a permit

under paragraph (a) of this section shall be assigned priorities based

on the following criteria:

(1) First priority shall go to heads of households currently over

the age of 65.

(2) Second priority shall go to heads of households under the age

of 65.

(3) In each priority class, eligible applicants who had shared

grazing permits shall be equal to those who had their own grazing

permits.

Sec. 161.11 How grazing permits are allocated.

(a) Initial allocation of the number of Animal Units authorized in

each grazing permit shall be based on the number of Animal Units

previously authorized in prior grazing permits and the authorized

stocking rate on a given range unit.

(b) Grazing permit allocations shall vary from range unit to range

unit depending on the stocking rate of each unit, the management plan,

and the number of eligible grazing permittees in the unit.

(c) Any change in carrying capacity requiring adjustments to the

stocking rate shall be prorated on an equal percentage basis to

permittees on each range unit.

Sec. 161.12 Provisions required in all grazing permits.

(a) All grazing permits shall contain the following provisions:

(1) The permittee agrees he/she will not use, cause, or allow to be

used any part of the permitted area for any unlawful conduct or

purpose.

(2) The permit authorizes no privilege other than grazing use.

(3) No person is allowed to hold a grazing permit in more than one

range unit of the Navajo Partitioned Land.

(b) Any other special provision which, in the discretion of the

Area Director and with the concurrence of the Navajo Nation, is

necessary to protect the land and resource may be added to the permit.

Sec. 161.13 Procedures for issuing permits.

The Area Director shall issue grazing permits only to individuals

that meet the eligibility requirements of Sec. 161.10 (a).

Responsibilities for the initial issuance of grazing permits shall be

as follows:

(a) The Area Director shall develop a complete list of all prior

permit holders, including shared permittees under an extended family

agreement, who had grazing permits cancelled on the NPL and HPL and who

now reside on the NPL. This list shall be provided to the NPL Grazing

Committee for its review. The Area Director shall also provide the NPL

Grazing Committee with his/her determination of the carrying capacity

and stocking rate for each range unit within the NPL.

(b) Within 45 days of receipt, the NPL Grazing Committee shall

review the list of potential permittees provided by the Area Director

for a range unit, and, according to the eligibility and priority

criteria set forth in Sec. 161.10, and make recommendations to the

Navajo Nation for the granting of grazing permits on the range unit.

The Committee shall also make a recommendation for initial permit

allocation of animal units for each permit application.

(c) If the NPL grazing committee fails to make its recommendation

to the Navajo Nation within 45 days after receiving the list of

potential permittees for a range unit and the determination of stocking

rate, then the Area Director shall submit his/her recommendations to

the Navajo Nation.

(d) The Navajo Nation shall review and concur with the list of

proposed permit grantees, including the initial permit allocation of

animal units, and then forward a final list to the Area Director for

the issuance of grazing permits.

Sec. 161.14 Duration of grazing permits.

Each new grazing permit shall be valid until January 1 of the year

following its issuance. After its initial issuance, each grazing permit

is valid for one year beginning on January 1. All grazing permits that

are being used by

[[Page 55510]]

permittees shall be automatically renewed annually until cancelled. If

a grazing permit is not used by the permittee for a one year period,

the Area Director may cancel the permit.

Sec. 161.15 Kind and classes of livestock that may be grazed.

Unless otherwise determined by the Area Director for conservation

purposes and specified in the grazing permit, the permittee may

determine the kind and class of livestock that may be grazed on range

units.

Sec. 161.16 How grazing fees will be assessed and collected.

If requested by the Navajo Nation, the Area Director shall assess

and collect grazing fees under the following procedures:

(a) Fees are to be paid in advance, due and payable by January 1,

with a 30-day grace period thereafter;

(b) Fees shall be collected by the Area Director and thereafter

transferred to the Navajo Nation to be set aside for range management

purposes in grazing management areas;

(c) All grazing permittees who fail to pay the prescribed fees by

January 1, or within the 30-day grace period, shall be subject to a

reasonable late charge set by the Navajo Nation;

(d) If payment is not received after 90 days the grazing permit

shall be subject to cancellation.

Sec. 161.17 How permits may be assigned, modified, or cancelled.

(a) Grazing permits may be assigned, sub-permitted or transferred

only as provided in this section. Permits may only be inherited or

assigned as a single permit, with the approval of the Navajo Nation and

the Area Director, to another immediate family member who has retained

full time residency on the NPL.

(b) The Area Director shall notify the Navajo Nation before taking

any adverse actions. The Area Director may revoke or withdraw all or

any part of a grazing permit by cancellation or modification on 60 days

written notice to a grazing permittee of a violation of the permit or

special conditions affecting the land or the safety of the livestock

thereon, including, but not limited to, flood, disaster, drought,

contagious diseases; or for non-payment of grazing fees or violation of

these regulations; or violation of Federal or tribal laws. Except in

the case of extreme necessity, specified in the notice, cancellation or

modification shall be effective on the next anniversary date of the

grazing permit following the date of notice.

Sec. 161.18 Establishing and administering special land uses.

The Navajo Nation and the Area Director may establish special land

uses, including leases, withdrawals, and land assignments. If a special

land use is inconsistent with issued grazing permits or range

management plans, the special use will govern and will require the

amendment of the grazing permits and range management plans.

Sec. 161.19 Livestock trespass.

The owner of any livestock grazing in trespass on the Navajo

Partitioned Land is liable for a minimum civil penalty of one dollar

per head per day for each cow, bull, horse, mule, or donkey and twenty-

five cents per day for each goat or sheep in trespass, together with

the replacement value of the forage consumed and a reasonable value for

damages to property injured or destroyed. The Area Director may collect

penalties and damages and seek injunctive relief when appropriate. All

payments for penalties and damages shall be credited to the Navajo

Nation's special deposit account. The following acts are prohibited:

(a) Grazing or driving livestock across the Navajo Partitioned Land

without an approved grazing or crossing permit;

(b) Allowing livestock to drift and graze on the NPL without an

approved permit;

(c) Grazing livestock in an area closed to grazing for that class

of livestock;

(d) Grazing livestock upon any land that the Area Director has

withdrawn from grazing use to protect it from damage, after notice of

the withdrawal is received; and

(e) Grazing more in number or kinds of livestock than are

authorized by an appropriate grazing permit.

Sec. 161.20 Impoundment and disposal of trespassing livestock.

(a) The Area Director shall notify the NPL Grazing Committee of any

livestock trespass on the NPL.

(b) After the NPL Grazing Committee has been notified or otherwise

becomes aware of the existence of the livestock trespass, a five day

period shall be allowed for the NPL Grazing Committee to resolve the

livestock trespass with the grazing permittee or livestock owner before

formal trespass action is taken.

(c) If trespassing livestock within a range unit are not removed

within the periods prescribed in this section, the Area Director shall

impound and dispose of it as follows:

(1) If the Area Director knows of the class of livestock and the

name and address of the owners, he/she may impound the livestock any

time five days after mailing by certified mail or having delivered to

the owners or their agent a Notice of Intent to Impound.

(2) When the Area Director does not know of the number and class of

livestock or the name and address of the owner, he/she shall impound

the livestock anytime 15 days after the date of a General Notice of

Intent to Impound is:

(i) Published in the local newspaper;

(ii) Posted at the nearest chapter house or in one or more local

trading posts; and

(iii) Announced in English and in Navajo by a local radio station.

(3) The Area Director may impound trespassing livestock owned by a

person given notice under paragraphs (c)(1) and (2) of this section

without further notice within the six-month period immediately

following the effective date of the notice.

(4) Following the impoundment of trespassing livestock, a Notice of

Sale of Impounded Livestock shall be published in a local newspaper,

posted at the nearest chapter, posted in one or more local trading

posts, and announced in English and in Navajo by a local radio station.

The notice shall describe the livestock and specify the date, time, and

place of sale. The date set shall be at least five days after the

publication, posting, and announcement of the notice.

(5) The owner or his or her agent may redeem the livestock any time

before the time set for this sale by submitting proof of ownership and

paying for the expenses incurred in gathering, impounding, and feeding

or pasturing the livestock and any trespass fees and damages assessed

under Sec. 161.19 and/or other damages caused by the animal.

(6) The Area Director shall return erroneously impounded livestock

to the residence of the rightful owner and shall waive all expenses.

(7) Livestock not redeemed before the time fixed for their sale

shall be sold at a public sale or auction to the highest bidder,

provided the bid is at or above the minimum amount set by the Area

Director and the Navajo Nation.

(8) The proceeds of any sale of impounded livestock shall be

applied in the following order:

(i) Toward the payment of all expenses incurred by the Area

Director in gathering, impounding and feeding or pasturing the

livestock; and

(ii) Toward the payment of any penalties or damages assessed

pursuant to Sec. 161.19.

(9) Any proceeds remaining after payment of the two items in

paragraphs (c)(8) (i) and (ii) of this section and not claimed within

one year from the date

[[Page 55511]]

of sale shall be credited to a special fund for the Navajo Partitioned

Land.

Sec. 161.21 Controlling livestock disease and parasites.

Whenever livestock are exposed to or become infected with

contagious or infectious diseases or parasites the owner must treat the

livestock and restrict their movement in accordance with applicable

laws.

Sec. 161.22 Procedures for Navajo Nation concurrence.

(a) Subject to the Secretary's authority and except where indicated

otherwise, the Navajo Nation has the right to consult with the Area

Director and concur in the establishment of range units, range

management plans, and special management areas.

(b) For any action requiring the concurrence of the Navajo Nation,

the following procedures shall apply:

(1) Unless a longer time is specified in a particular section of

the regulations in this part, or unless the Area Director grants an

extension of time, the Navajo Nation shall have 35 days to review and

concur with the proposed action.

(2) If the Navajo Nation concurs in writing with all or part of the

Area Director's proposed action, then the action or a portion of it may

be immediately implemented.

(3) If the Navajo Nation does not concur with all or part of the

proposed action within 35 days the Area Director shall submit to the

Navajo Nation a written declaration of non-concurrence. The Area

Director shall then notify the Navajo Nation in writing of a formal

hearing to be held not sooner than 30 days from the date of the non-

concurrence declaration.

(4) The formal hearing on non-concurrence will permit the

submission of written evidence and argument concerning the proposal.

The Area Director shall take minutes of the hearing. Following the

hearing, the Area Director may amend, alter, or otherwise change his/

her proposed action. If, following a hearing, the Area Director alters

or amends portions of his/her proposed plan of action, he/she shall

submit the altered or amended portions of the plan to the Navajo Nation

for its concurrence.

(5) If the Navajo Nation fails or refuses to give its concurrence

to the proposal at the hearing, the Area Director may implement the

proposal only after issuing a written order, based upon findings of

fact, that the proposed action is necessary to protect the land

pursuant to his/her responsibilities under the Settlement Act.

Sec. 161.23 How to appeal decisions on grazing permits.

Appeals of decisions issued under this part will be in accordance

with procedures in 25 CFR part 2.

Sec. 161.24 Information collection.

The information collection requirement(s) contained in the

regulations in this part do not require approval by the Office of

Management and Budget under 44 U.S.C. 3501-3520.

Editorial Note: This document was received at the Office of the

Federal Register on October 24, 1995.

Dated: February 3, 1995.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 95-26686 Filed 10-31-95; 8:45 am]

BILLING CODE 4310-02-P