Use of Columbia River Treaty Fishing Access Sites

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 247

Use of Columbia River Treaty Fishing Access Sites

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Interim rule with request for comments.

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SUMMARY: The Bureau of Indian Affairs (BIA) is promulgating regulations

for application to the Columbia River Fishing Access Sites. The current

regulations in part 248 do not apply to these new fishing sites which

are being

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transferred to the Bureau from the U.S. Army Corps of Engineers. This

proposed rule gives the Bureau the authority to manage and maintain

these fishing sites for tribal fishermen. Part 248 is still required

for the maintenance of the in-lieu fishing sites.

DATES: Interim rule effective September 29, 1997. Comments must be

submitted on or before November 28, 1997.

ADDRESSES: Submit comments on this rule to Mr. Chuck James, Area

Archeologist, Portland Area Office, Bureau of Indian Affairs, 911 N.E.

11 Ave., Portland, OR 97232, (503) 231-6229.

FOR FURTHER INFORMATION CONTACT: Chuck James (Area Archeologist), (503)

231-6229.

SUPPLEMENTARY INFORMATION: On November 1, 1988, the President signed

into law Pub. L. 100-581, Title IV--Columbia River Treaty Fishing

Access Sites. This bill, provides that certain designated Federal lands

shall be administered to provide access to usual and accustomed fishing

areas and ancillary fishing facilities for members of the Nez Perce,

Umatilla, Warm Springs, and Yakima Indian Tribes. The law directs the

Secretary of the Army to make various specified improvements to both

existing and additional lands, with the Secretary of the Army

maintaining such lands until they are transferred to the Secretary of

the Interior.

One of the sites will be transferred to BIA jurisdiction at the

time these regulations are published. Without a final rule, the BIA

would not have regulations to follow in administering the sites.

Related regulations which cover the existing In-Lieu Fishing Sites

appear at 25 CFR 248, and are being revised into plain English and

published as a proposed rule at a future date. Because Treaty Fishing

Access Sites are authorized through separate legislation and have

different constraints than the In-Lieu Sites, different regulations are

necessary.

The Bureau agreed 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. We addressed the issue of non-fish oriented commercial

enterprises, as questions have arisen on that subject since the

promulgation of the 248 regulations.

In August 1990, the United States Court of Appeals for the Ninth

Circuit issued its opinion in Sohappy v. Hodel, 911 F.2d 1312 (9th Cir.

1990). In that opinion the court, focused on the 1945 law which

authorized the in-lieu sites. The court determined that in enacting the

1945 Act, Congress intended that the existing conditions at the in-lieu

sites were to continue. The court found that these conditions included

year-round dwellings. Because the regulations published here cover

sites authorized not under the 1945 Act, but under the 1988 Act, the

Bureau believes that the Sohappy decision does not apply to the new

fishing access sites. These regulations, therefore, address the

limitations on constructing dwellings on the new sites.

One distinguishing feature of the 1988 Act is that different Tribes

are included than those that Congress included under the 1945 Act. The

1988 Act, in addition to the Yakima, Warm Springs, and Umatilla Tribes,

includes the Nez Perce Tribe. The 1945 Act includes only the Yakima,

Umatilla, Warm Springs and other Columbia River Indians. If the

existing regulations at 25 CFR 248 were to apply to these new fishing

access sites, the Nez Perce Indians, although they may be able to fish

in the area, would not have a legal basis for using these new sites.

Archaeologic and historic evidence indicates that some fishing

areas have been used through historic and prehistoric times. Section

247.5(c) is intended to protect the historic and archaeologic

resources. Authority for this regulatory activity comes from

Archeological Resources Protection Act of 1979, as amended 16 U.S.C.

470, Pub. L. 96-95, and amendments (ARPA).

Section 247.13(a) explains that the Area Director may close

temporarily, facilities at the sites for necessary maintenance during

the winter or at other times if necessary, and that before closing the

facilities, the Area Director will consult with delegated tribal

representatives, if possible. The BIA intends to ensure access to

fishing sites even during periods in which the facilities might be

closed for maintenance. The BIA intends not to interfere with

ceremonial fishing activities. If tribal members require the use of a

facility during a period of planned closure, then a delegated tribal

representative should contact the Area Director to arrange if possible

for a particular facility to be opened during that time.

Interested parties involved in this rulemaking include: The Yakima

Indian Nation, the Confederated Tribes of the Warm Springs Reservation

of Oregon, The Confederated Tribes of the Umatilla Indian Reservation,

the Nez Perce Tribe, and the Columbia River Inter Tribal Fisheries

Commission (CRITFC). The legislation was passed for the benefit of the

named tribes. Together, these tribes comprise CRITFC's constituency.

CRITFC is a coordinating entity for Columbia River fisheries issues and

law enforcement. The interested parties sent representatives to monthly

task force meetings from 1989 through the present. Draft regulatory

language was distributed at these meetings, and mailed to the tribal

representatives, and the tribal governments. In addition to the task

force meetings, the Portland Area Director and staff, and a Solicitor's

office attorney met with the tribes on their reservations as requested.

We are publishing this interim rule by the authority delegated by

the Secretary of the Interior to the Assistant Secretary--Indian

Affairs by 209 DM 8.

Our policy is to give the public an opportunity to participate in

the rulemaking process by submitting written comments. We will consider

all comments received during the public comment period. We will

determine necessary revisions and publish those in the Federal

Register. Please refer to this preamble's ADDRESSES section for where

you must submit your written comments on this interim rule.

We certified to the Office of Management and Budget (OMB) that

these proposed regulations meet the applicable standards provided in

Sections 2(a) and 2(b)(2) of Executive Order 12778.

This rule is not a significant rule under Executive Order 12866 and

does not require approval by the Office of Management and Budget.

We determined this proposed rule:

(a) Does not constitute a major Federal action significantly

affecting the human environment, and no detailed statement is needed

under the Environmental Policy Act of 1969;

(b) Does not have significant takings implications in accordance

with Executive Order 12630;

(c) Does not have significant Federalism effects;

(d) Does not have a significant economic impact on a substantial

number of small entities under the Regulatory Flexibility Act (5 U.S.C.

601 et seq.); and

(e) Does not contain collections of information requiring approval

under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

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(f) Does not impose an unfunded mandate upon the public or state or

local governments.

List of Subjects in 25 CFR Part 247

Fisheries, Fishing, Indians, Indians--claims, Indians--law.

For the reasons set out in the preamble, part 247 is added to 25

CFR as follows:

PART 247--USE OF COLUMBIA RIVER TREATY FISHING ACCESS SITES

Sec.

247.1 What definitions apply to this part?

247.2 What lands are subject to these regulations?

247.3 Who is eligible to use the sites?

247.4 How can eligible users be identified?

247.5 What laws and regulations apply to the people who use these

sites?

247.6 What will happen if I damage Government-owned property?

247.7 Can I build a structure?

247.8 What am I responsible for if I use the facilities?

247.9 What other rules apply while I am using the facilities?

247.10 What will happen if I abandon property?

247.11 What other restrictions apply to use of the sites?

247.12 Will I have to pay to use a site?

247.13 Are the facilities available year around?

247.14 Can I hook up a campsite to on-site or off-site utilities?

247.15 May I reserve a campsite or drying shed?

247.16 What fire is permitted?

247.17 What are the restrictions on fires?

247.18 What are the sanitation prohibitions?

247.19 Can a site be used for commercial enterprises other than

fishing enterprises by the tribes?

247.20 What are the road and trail prohibitions?

247.21 Can I appeal an administrative action?

Authority: 25 U.S.C. 2 and 9; Pub. L. 100-581, Title IV.

Sec. 247.1 What definitions apply to this part?

Abandoned property means property left at a site while the owner of

the property is not actively engaged in fishing or drying or processing

fish. Abandoned property may include:

(1) Vehicles;

(2) Mobile trailers;

(3) Campers;

(4) Tents;

(5) Tepees;

(6) Boats, or;

(7) Other personal property.

Archaeological Resource means material remains of prehistoric or

historic human life or activities that are of archaeological interest

and are at least 50 years of age, and the physical site, location, or

context in which they are found.

Area Director means the position responsible for administration of

the Portland Area of the Bureau of Indian Affairs.

Campfire means fire, not within any building, motor home or

trailer, which is used for cooking, personal warmth, lighting,

ceremonial or aesthetic purposes.

Damage means to injure, mutilate, deface, destroy, cut, chop,

girdle, dig, excavate, kill or in any way harm or disturb.

Secretary means the Secretary of the Interior or his designee.

Sites means Treaty Fishing Access Sites.

Treaty Fishing Access Sites means all Federal lands acquired by the

Secretary of the Army and Transferred to the Secretary of the Interior

pursuant to Public Law 100-581, Title IV, November 1, 1988, to be

administered to provide access to usual and accustomed fishing areas

and ancillary fishing facilities.

Vehicle means any device in, upon, or by which any person or

property is or may be transported, and including any motor, frame,

chassis, or body of any motor vehicle, or camper shell, except devices

used exclusively upon stationary rails or tracks.

Sec. 247.2 What lands are subject to these regulations?

(a) Any treaty fishing access sites and ancillary fishing

facilities.

(b) These sites and facilities are managed for the exclusive use of

members of the Nez Perce Tribe, the Confederated Tribes of the Umatilla

Reservation, the Confederated Tribes of the Warm Springs Reservation of

Oregon, and the Confederated Tribes and Bands of the Yakima Indian

Reservation.

(c) The Area Director may suspend or withdraw the privileges of use

of any or all of the facilities at the sites for any violation of the

regulations in this part or of any rules issued under the regulations

in this part.

Sec. 247.3 Who is eligible to use the sites?

(a) You may use the sites for access to usual and accustomed

fishing areas and ancillary fishing facilities if you are a member of

the Confederated Tribes and Bands of the Yakima Indian Nation (Yakima),

the Confederated Tribes of the Warm Springs Reservation of Oregon (Warm

Springs), the Confederated Tribes of the Umatilla Indian Reservation

(Umatilla), and the Nez Perce Tribe (Nez Perce).

(b) The general public or people fishing who do not belong to the

tribes listed above cannot use these sites.

(c) Families of such Indians may camp on the sites.

(d) You may not deny access to these sites to any eligible user.

Sec. 247.4 How can eligible users be identified?

(a) In order to use these sites you must posses an identification

card issued by your tribe identifying you as a member of that tribe.

(b) You must exhibit the identification upon request of authorized

Federal, State, local or tribal officials.

Sec. 247.5 What laws and regulations apply to the people who use these

sites?

You may use access sites only if you obey the following rules:

(a) You may not use any of the sites for any activity that is

contrary to the provisions of your tribe or contrary to Federal law or

regulation, or in the absence of Federal law or regulation governing

health, sanitation, and safety requirements, State or U.S. Public

Health Service standards.

(b) The Area Director may suspend or withdraw the privileges of use

of any or all of the facilities at the sites for any violation of the

regulations in this part or for any violation of any rules issued under

the regulations in this part. You cannot dig in, destroy, or remove any

portion of a prehistoric or historic archaeological site or artifact.

(c) Nothing contained in the regulations in this part is intended

or shall be construed as limiting or affecting any treaty rights of any

tribe nor as subjecting any Indian properly exercising tribal treaty

rights to State fishing laws or regulations that are not compatible

with those rights.

Sec. 247.6 What will happen if I damage Government-owned property?

If you commit any act of vandalism, depredation, destruction,

theft, or misuse of the land, buildings, fences, signs, or other

structures that are the property of the United States you will be

subject to prosecution under applicable Federal or State law.

Sec. 247.7 Can I build a structure?

(a) You may not build any structures at the sites except as allowed

under paragraph (d) of this section .

(b) You may use the camping facilities that have been constructed

at the sites.

(c) In addition to these structures, you may camp in tents, tepees,

campers, and mobile trailers. You must remove any tents, tepees,

campers, temporary drying sheds, and mobile trailers from the sites at

any time you are not actively engaged in fishing, drying fish, or

processing fish by other means, and during the time a site is closed

for maintenance.

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(d) Where the Area Director has designated areas for the

construction of temporary drying sheds, you may construct a temporary

drying shed where space is available. You must remove any temporary

drying shed you build.

(e) If you erect or maintain a structure in violation of this

section, the Area Director may order it removed at any time.

(f) The Area Director:

(1) Is not required to notify you before removing the structure;

and

(2) Will charge you the cost of disposing of the structure.

Sec. 247.8 What am I responsible for if I use the facilities?

You are responsible for:

(a) Campsites, drying sheds and other facilities during the time

you occupy or use them; and

(b) Any personal property that you erect, place, or maintain on the

site during the time you occupy the site, including:

(1) Tents;

(2) Tepees;

(3) Campers;

(4) Mobile trailers;

(5) Temporary drying sheds;

(6) Fishing platforms;

(7) Boats; and

(8) Other fishing equipment.

Sec. 247.9 What other rules apply while I am using the facilities?

(a) You cannot construct, take possession of, occupy or otherwise

use any access site or structure for residential purposes at an access

site.

(b) Neither the United States nor any officer or employee thereof

warrants, makes any representation, or is responsible for the safety or

condition of any personal property.

Sec. 247.10 What will happen if I abandon property?

If you abandon property at a site, it may be removed without your

consent and disposed of at your expense, if the Area Director approves.

Sec. 247.11 What other restrictions apply to use of the sites?

The Area Director may prescribe and post at the sites regulations

covering:

(a) Camping;

(b) Picnicking;

(c) Use of alcoholic beverages;

(d) Setting or use of fires;

(e) Use of the sites for cleaning fish;

(f) Deposit of garbage, paper, cans, bottles, or rubbish of any kind;

or

(g) Use of the sites for any commercial activity (including commercial

purchase of fish).

Sec. 247.12 Will I have to pay to use a site?

No. Neither you nor any member of your family will be charged for

using a site in accordance with this part.

Sec. 247.13 Are the facilities available year around?

(a) The Area Director may close facilities at the sites for

necessary maintenance during the winter or at other times if necessary.

Before closing the facilities, the Area Director will consult with

delegated tribal representatives, if possible.

(b) You will still be able to access your treaty fishing rights on

the Columbia River through these sites while they are closed.

(c) If any sites are closed or restricted, any affected tribe can

contact the Area Director and ask that the sites be opened. The Area

Director will work together with the tribes to consider these requests.

Sec. 247.14 Can I hook up a campsite to on-site or off-site utilities?

(a) You must share access to all on-site facilities.

(b) Because there are a limited number of faucets available, only

short-term hose use is allowed to ensure that others have access to

water.

(c) You may not tap into electrical lines or outlets, or have

electrical power brought in from an outside source for campsite use.

Sec. 247.15 May I reserve a campsite or drying shed?

No. You may not reserve a campsite, drying shed, or other facility.

(a) You must use campsites, drying sheds, and other facilities on a

first-come, first-served basis.

(b) You may not occupy one or more campsites solely for the purpose

of reserving a site for another tribal member.

Sec. 247.16 What fire is permitted?

(a) You may have a fire in designated fire places, and other areas

designated for fires.

(b) You may have a fire inside a drying shed in a manner that does

not jeopardize the structure.

Sec. 247.17 What are the restrictions on fires?

(a) You cannot burn timber, trees, slash, brush or grass unless you

have a permit issued by the Area Director or his designee.

(b) You cannot build a fire in an unsafe location or leave a fire

without completely extinguishing it.

(c) You must control all fire and not allow it to escape.

Sec. 247.18 What are the sanitation prohibitions?

(a) You cannot deposit in any toilet, toilet vault, or plumbing

fixture anything that could damage or interfere with the operation or

maintenance of the fixture.

(b) You must dispose of all garbage, including any paper, cans,

bottle, sewage, waste water or material, either by removal from the

site, or by depositing it into receptacles or at places provided for

such purposes.

(c) You may not bring refuse, debris, or toxic or hazardous

materials to the sites for disposal.

(d) All toxic or hazardous materials must be properly removed from

the sites. You may not dispose of such materials in a sewer line, tank,

drain, storm drain, or on the ground.

(e) You must not place in or near the river or other water any

substance that pollutes or may pollute the water.

(f) If dumping stations are not available, you must transport

sewage off site.

Sec. 247.19 Can a site be used for commercial enterprises other than

fishing enterprises by the tribes?

(a) You may operate commercial activities during commercial fishing

seasons, and subsistence activities, incidental to treaty fishing on

the site.

(b) You may not construct or operate other types of commercial

enterprises, such as firework stands.

Sec. 247.20 What are the road and trail prohibitions?

(a) You cannot damage or leave in a damaged condition any road,

trail, or segment thereof.

(b) You cannot block, restrict, or otherwise interfere with the use

of a road, trail, or gate.

Sec. 247.21 Can I appeal an administrative action?

You may appeal any decision made by the Area Director under this

part to the Commissioner of Indian Affairs. You may appeal any decision

of the Commissioner of Indian Affairs to the Secretary of the Interior

in accordance with part 2 of this chapter.

Dated: September 16, 1997.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 97-25495 Filed 9-26-97; 8:45 am]

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