OCTOBER 2015 CROW TRIBAL LEGISLATURE

OCTOBER 2015 CROW TRIBAL LEGISLATURE

JOINT ACTION RESOLUTION NO. JAR 15-15

INTRODUCED BY DARRIN OLD COYOTE, CHAIRMAN

CROW TRIBAL EXECUTIVE BRANCH

JOINT ACTION RESOLUTION OF THE CROW TRIBAL LEGISLATURE AND THE

CROW TRIBAL EXECUTIVE BRANCH ENTITLED:

“A RESOLUTION APPROVING THE SAFE HARBOR AGREEMENT BETWEEN

THE CROW TRIBE AND THE U.S. FISH AND WILDLIFE SERVICE IN

FURTHERANCE OF THE TRIBE’S EFFORTS TO REINTRODUCE THE BLACK

FOOTED FERRET INSIDE THE EXTERIOR BOUNDARIES OF THE CROW

NATION.”

WHEREAS, the Chairman of the Executive Branch has authority and responsibility

pursuant to the “enumerated powers” in Article IV, Section 3 of the Constitution and Bylaws

of the Crow Tribe of Indians to represent the Crow Tribe in negotiations with Federal, State

and local governments and other agencies, corporations, associations, or individuals in

matters of welfare affecting the Crow Tribe; and to “negotiate and approve or prevent any

sale, disposition, lease or encumbrance of Tribal lands, interests in lands or other Tribal

assets, including buffalo, minerals, gas and oil with final approval granted by the Legislative

Branch;” and

WHEREAS, pursuant to Article V, Section 2(a) of the 2001 Crow Tribal

Constitution, the Crow Tribal Legislature (hereinafter, the “Legislature”’) is vested with the

power and duty to promulgate and adopt laws, resolutions, ordinances, codes, regulations,

and guidelines in accordance with the 2001 Crow Constitution and federal laws, and in

Section 2(d) of the Constitution “to grant final approval or disapproval of items negotiated by

the Executive Branch of Government pertinent to the sale, disposition, lease or encumbrance

of Tribal lands, interests in lands or mineral assets;” and

WHEREAS, approximately 2,960 acres of black-tailed prairie dog habitat existing

on the Crow Indian Reservation, have been identified by the United States Fish and Wildlife

Service (the “USFWS”) of the United States Department of the Interior as suitable for the

reintroduction of black-footed ferrets, and the preservation and conservation of this native

wildlife species is important to the Crow Tribe and the Crow people; and

WHEREAS, since March 11, 1967 the Black-Footed Ferret has been listed by the

USFWS as an endangered species under the Endangered Species Act, 16 U.S.C. § 1531, et

seq.,; and

October 2015 Session

Resolution Approving Safe Harbor Agreement

Page 1 of 3

WHEREAS, the Crow Nation has the inherent authority and sovereign power to

promote and regulate the reintroduction and conservation of the Black-Footed Ferret within

the homeland of the Crow Nation; and

WHEREAS, conservation of the Black-Footed Ferret pursuant to Tribal law and

regulation, in cooperation with Federal agencies, will accomplish the objective of

reintroducing and conserving the Black-Footed Ferret within the Crow Nation, while also

taking into account the importance of economic development that is critical to the

Reservation economy and to provide employment for the Crow people; and

WHEREAS, the Crow Tribal Department of Natural Resources, through its Fish and

Game Department, is working with the USFWS to develop a “Black-footed Ferret

Reintroduction Plan” on the Crow Nation (the “Plan’’), whereby the Crow Tribe, in

cooperation with the USFWS and the Bureau of Indian Affairs (“BIA”), will have primary

responsibility for management and conservation of the species according to the Plan; and

WHEREAS, upon approval of this Joint Action Resolution, the Crow Tribal

Department of Natural Resources will work with the above-named cooperating Federal

agencies to finalize the Plan and undertake the reintroduction, conservation, and management

activities specified in the Plan;

NOW, THEREFORE, BE IT ENACTED BY THE CROW TRIBAL

LEGISLATURE:

Section 1. The “Black-footed Ferret Reintroduction Plan” and Safe Harbor

Agreement, attached hereto and incorporated by this reference, is hereby approved.

Section 2. The Chairman of the Executive Branch is authorized to effectuate

any and all documents necessary to accomplish the intent of this Joint Action

Resolution.

Section 3. This Reintroduction Plan and Safe Harbor Agreement does not,

and shall not, conflict with any current or future tribal conservation plans, rules,

regulations, and/or laws, passed by the Crow Tribe.

Section 4. This Resolution shall be effective immediately upon approval by

the Chairman of the Executive Branch; provided, however, that the Plan shall be fully

executed when agreed to and signed by the cooperating Federal agencies.

[Remainder of page left blank intentionally.]

October 2015 Session

Resolution Approving Safe Harbor Agreement

Page 2 of 3

CERTIFICATION

I hereby certify that this Joint Action Resolution entitled “A RESOLUTION APPROVING

THE SAFE HARBOR AGREEMENT BETWEEN THE CROW TRIBE AND THE

U.S. FISH AND WILDLIFE SERVICE IN FURTHERANCE OF THE TRIBE’S

EFFORTS TO REINTRODUCE THE BLACK FOOTED FERRET INSIDE THE

EXTERIOR BOUNDARIES OF THE CROW NATION” was duly approved by the

Crow Tribal Legislature with a vote of _15_ in favor, _0 opposed, and _0_ abstained, and

that a quorum was present on this _14'* day of _October, 2015.

AMIE

Sen. R. Knute Old Crow, Sr.

Speaker of the House

Crow Tribal Legislature

a8

Sen. Patrick Alden, Jr.

Secretary

Crow Tribal Legislature

EXECUTIVE ACTION

I hereby

this Joint Action Resolution entitled “A RESOLUTION APPROVING THE SAFE

HARBOR AGREEMENT BETWEEN THE CROW TRIBE AND THE U.S. FISH

AND WILDLIFE SERVICE IN FURTHERANCE OF THE TRIBE’S EFFORTS TO

REINTRODUCE THE BLACK FOOTED FERRET INSIDE THE EXTERIOR

BOUNDARIES OF THE CROW NATION” pursuant to the authority vested in the

Chairman of the Crow Tribe by Fiuficke V, Section 8 of the Constitution and Bylaws of the

Crow Tribe of Indians, on this aE day of , 2015.

CDérrin Old Coydte(Chairtyan™

Crow Tribal Execut ch

October 2015 Session

Resolution Approving Safe Harbor Agreement

Page 3 of 3

JAR - “A RESOLUTION APPROVING THE SAFE HARBOR AGREEMENT BETWEEN THE CROW TRIBE AND THE U.S. FISH AND

WILDLIFE SERVICE IN FURTHERANCE OF THE TRIBE’S EFFORTS TO REINTRODUCE THE BLACK FOOTED FERRET INSIDE THE

EXTERIOR BOUNDARIES OF THE CROW NATION.”

Bill or Resolution: JAR15-15 Introduced by: Chairman Darrin Old Coyote Date of Vote:_10/14/2015

Number

Representative: Yes No Abstained

G. Three Irons

B. Rogers

C. Stewart

P. Hill

~ | p< PX fx

E. Birdinground

(Vacant)

V. Nomee

~

T. Gros Ventre

V. Crooked Arm

P. Spotted Horse, Jr.

L. DeCrane

C. Goes Ahead

B. Hugs

G. Real Bird, Jr.

B. Good Luck

G. Stewart

~ | PM PP pe DK OL pd

P. Alden, Jr.

Secretary of the House

Pro-Tem

R. K. Old Crow, Sr. x

Speaker of the House

Pro-Tem

Totals: 15 0 0

Result of Vote:

Passed Not Passed Tabled Veto-Override

ALLL wher Gah id

Senator R. Knute Old Crow, Sr. Date Senator Pat Alden, Jr. a

Speaker of the House Secretary of the House

Date

Crow Tribe Black-footed Ferret Reintroduction Plan

Big Horn and Yellowstone counties, Montana

Agreed to by Cooperator and Permittee, hereinafter “Parties”

Cooperator’s Name Permittee: Certificate of Inclusion (COI)#:

Crow Tribe

1.0

2.0

3.0

4.0

Description and map of enrolled lands: The Conservation Zone for the enrolled

property in Big Horn County, Montana consists of approximately 78,853 acres of

rangeland. Within this Conservation Zone, approximately 2,960 acres of black-tailed

prairie dog habitat currently exist that are suitable for the reintroduction of black-footed

ferrets. The Management Zone for the enrolled property in Big Horn and Yellowstone

counties consists of approximately 2,285,952 acres of rangeland, cropland, and

residential lands. Please see Appendix A for a map delineating the Conservation and

Management Zones.

Baseline for the Covered Species: The baseline for the black-footed ferret on the

enrolled property is considered to be zero animals.

Current land use: The property totals approximately 2,285,952 acres and is designated

as a reservation for the Crow Tribe.

Conservation Activities:

A. Black-footed Ferret Reintroduction and Management: Upon signature by the

Parties, the enrolled lands will be eligible to receive black-footed ferrets.

Reintroduction and management activities will be carried out by the Permittee

(Black-footed Ferret Recovery Coordinator, U.S. Fish and Wildlife Service/”the

Service”) or designee(s). Following an initial release of 30 animals, approximately 20

ferrets may be released annually within the Conservation Zone identified on the

enrolled lands in the fall. This process will be undertaken over the course of 1-3

days. The Cooperator will be notified 30 days prior to planned release activities. *

B. Disease Management: Upon signature by the Parties, the enrolled lands will be

eligible for disease management activities. These activities may be carried out by

the Cooperator, Permittee, or third party designated by the Parties. Disease

management activities may include applying approximately 5 grams of DeltaDust™

into prairie dog burrows within the Conservation Zone and/or high priority areas

within the Management Zone. Dust is typically applied using ATVs or by foot

depending on topography. Applications can take several days to several weeks

depending on acreage treated and size of work crews. Alternatively, oral vaccine

baits (currently under development) could be distributed from ATVs or possibly

5.0

Drought

aerially onto a prairie dog colony no more than once per year after emergence of

the young. In the event that disease management activities will be undertaken by

the Permittee or a third party designee, the Cooperator will be notified 30 days prior

to any disease management activities.*

C. Prairie Dog Management:

1. Upon signature by all Parties, the enrolled lands may be eligible to receive

assistance in prairie dog management. This will be facilitated by the Permittee

or designee and carried out by USDA APHIS-Wildlife Services or other designated

party.*

2. Prairie dog management may include lethal control of prairie dogs only outside

of the Conservation Zone where identified on the Reintroduction Plan map to

keep specific lands free of prairie dogs. Lethal control may be accomplished

using shooting and/or application of zinc phosphide. Anticoagulant rodenticides

(e.g., Rozol® and Kaput®) cannot be used within the Management Zone or

Conservation Zone at any time.

*All conservation management related activities will be coordinated in advance directly with

and are subject to the expressed approval of the Cooperator. Every effort will be made to

minimize conflicts with the Cooperator’s use of the lands. Only in emergency situations will

the Permittee request access less than 30 days in advance.

Monitoring: The Cooperator will be expected to fill out a questionnaire (example

provided in Appendix B) on an annual basis regarding status of ferrets on the enrolled

land and ongoing routine grazing and ranching activities; the Permittee will assist the

Cooperator in completing this survey if requested. Spotlight surveys for black-footed

ferrets will be coordinated by the Permittee (or designee) to determine the success of

the ferret reintroduction. Surveys will be conducted between 1 September and 31

October of each year, and will utilize pre-determined routes within the Conservation

Zone. While actual survey effort may vary, the Permittee anticipates that a total of 80

observer hours annually will be adequate to determine the status of the reintroduction

effort.

Pro Response

Drought can limit forage quantity available

Upon identification of a D2 or higher by the Drought Monitor and

for prairie dogs and livestock. Competition declaration by State Authorities, the Permittee will determine if

for this forage could limit prairie dog adequate habitat is available on the enrolled lands for ferrets. If

reproduction. Limited prairie dog not, the Permittee may elect to trap any remaining ferrets for

reproduction could lead to limited food reintroduction elsewhere with adequate habitat. Landowner

availability for ferrets. grazing activities will not be limited by the Permittee. Additional

ferrets may be reintroduced to the enrolled lands after drought

conditions have improved.

Fire

Direct effects of fire to ferrets or prairie dogs

are unlikely as they can seek refuge within

their burrows. However, fire can have short

term impacts to the availability of forage for

prairie dogs and therefore ferrets as

discussed above.

Should a fire impact greater than 50% of the enrolled lands, the

Permittee will determine if adequate habitat is available on the

enrolled lands for ferrets. If not, the Permittee may elect to trap

any remaining ferrets for reintroduction elsewhere with adequate

habitat. Additional ferrets may be reintroduced to the enrolled

lands after enrolled lands have recovered from the fire.

Disease

There are a number of native and non-native

diseases that can impact ferrets. Impacts

occur both directly (death of ferret) or

indirectly through the loss of their food

source, prairie dogs.

In the case where disease other than plague is suspected to have

impacted ferrets, the Permittee will coordinate efforts to identify

the disease with U.S. Geological Survey’s National Wildlife Health

Lab and the appropriate State Agency that oversee wildlife disease

outbreaks. Potential response to the disease could include

trapping and relocating ferrets if adequate habitat exists

elsewhere. If disease causes loss of all ferrets at a reintroduction

site, additional ferrets may be reintroduced if adequate habitat

exists that is not impacted by disease.

Additional Land

Uses

Changes in land use include, but are not

limited to utility development (e.g.,

waterlines, power lines), energy

development, and associated infrastructure.

These changes could result in the incidental

take of ferrets through vehicle collision

and/or decrease available prairie dog habitat

and prairie dogs available for ferrets.

Any additional land uses proposed within the enrolled lands during

the term of the Reintroduction Plan will be identified and reviewed

by the parties to determine if the proposed use will decrease

prairie dogs or ferret habitat. Any significant decreases in prairie

dog habitat could be offset by including additional prairie dog

habitat contiguous with the Conservation Zone resulting in no net

loss of adequate prairie dog habitat. If sufficient additional habitat

does not exist, the Permittee may elect to trap any remaining

ferrets for reintroduction elsewhere with adequate habitat.

New Species

Listing on

Enrolled Lands

Conservation activities to benefit the blackfooted ferret may have potential impacts to

the new species.

If a non-covered species that occurs within the Agreement area

becomes a federally listed species, the Service will assess whether

the implementation of the Agreement may affect such species. If

implementation may result in incidental take of such species, the

Service will work with the enrolled landowners to determine

appropriate modifications to the Agreement’s conservation

activities to either avoid or minimize incidental take. If take cannot

be avoided, the Service will determine whether amending the

Agreement and permit would be necessary to cover such

additional species through the Endangered Species Act, Section 7

process. If the landowner wishes to conserve the species and

receive assurances for that species, the Service and landowner

would mutually amend the Reintroduction Plan to document the

baseline conditions for the species; potentially modify or add

conservation measures; and the Service would amend the

Agreement, Biological Opinion, and any relevant National

Environmental Policy Act documents while providing for required

public comment. Any Cooperator may withdraw from the

Agreement at any time.

Change in

Ownership

Interest

Withdrawal of Cooperator from the

Agreement and termination of

Reintroduction Plan may result in loss of site.

Coverage for incidental take will be maintained via the Biological

Opinion, provided the former Cooperator notifies the Permittee

and allows access to trap any remaining ferrets for reintroduction

elsewhere.

7.0

8.0

9.0

Reintroduction Plan Duration: The duration of this plan will be 10 years from the date

of signature. The Certificate of Inclusion will be in effect for as long as the terms of this

Agreement and the Reintroduction Plan are met.

Assurances to the Cooperator: Provided that the Cooperator complies with the

provisions outlined in the Reintroduction Plan developed for the enrolled lands, the

Service assures that it will not impose conservation measures and/or restrictions for the

ferret on the use of the Cooperator’s land, water, or resources in addition to those

already agreed upon in the Safe Harbor Agreement and the Reintroduction Plan

throughout the term of the Certificate of Inclusion. Furthermore, the Certificate of

Inclusion will provide the Cooperator with incidental take coverage of the ferret

consistent with maintaining the baseline conditions as described in Section 2.0 of this

Reintroduction Plan with the following conditions:

A.

When a Cooperator is implementing the conservation activities identified in Section

4.0 of this Reintroduction Plan.

When a Cooperator is carrying out any legal activity, including routine ranching and

grazing, on or adjacent to the enrolled lands in concert with conservation activities

identified in section 4.0 of this Reintroduction Plan.

When a Cooperator is making any lawful use of Cooperator-owned non-enrolled

lands that are adjacent to or in proximity of enrolled lands.

When a Cooperator is returning the enrolled lands to baseline at any time through

otherwise lawful means.

Modifications:

A.

Reintroduction Plan: Any party to this Reintroduction Plan may propose

modifications by providing written notice to the other parties explaining the

proposed modification and the reasons for the modification. Approval of a

modification will require the written consent of the Permittee and Cooperator and

must be consistent with the assurances described in Section 8.0 of the

Reintroduction Plan. Any proposed modification to the Reintroduction Plan will be

considered effective as of the date that all affected parties, including the Natural

Resources Committee of the Crow Tribal Legislature, have agreed in writing to the

modification.

Certificate of Inclusion: The Certificate of Inclusion may be amended by the

Cooperator and/or the Permittee, pursuant to the modification requirements of this

Section 9, and in accordance with all applicable legal requirements in force at the

time of the amendment, including, but not limited to, the Act, National

Environmental Policy Act, and Service permit regulations (50 CFR, Parts 13 and 17).A

request for an amendment of the Permit or Certificate of Inclusion would require, at

a minimum: a written explanation of why the amendment is needed; and an

explanation of what, if any, effects the amendment would have on the black-footed

ferret. An amendment to the Permit would require the Service to publish a notice in

the Federal Register of a 30-day public comment period for the proposed

amendment.

C. Early Termination of the Reintroduction Plan: As provided for in Part 12 of the

Service’s Safe Harbor Policy (64 FR 32717), the Permittee may terminate the

Reintroduction Plan prior to the expiration date. In such circumstances, the

Cooperator may return the enrolled lands to baseline conditions even if the

conservation activities identified in the Reintroduction Plan for the enrolled lands

have not been fully implemented. Similarly, the Cooperator may terminate the

Reintroduction Plan early. A Cooperator who withdraws from the Agreement would

subsequently be regarded as a non-participating landowner interest who receives

incidental take via the associated Biological Opinion, provided the Cooperator

notifies the Permittee and allows the Service access to recapture ferrets during the

following fall, prior to carrying out any otherwise lawful activity that may result in

take of ferrets on enrolled lands, including a return to baseline. If a Cooperator fails

to notify the Permittee regarding possible take or fails to provide access, coverage

for incidental take will not be granted.

10.0 Other Measures:

A. Remedies. No party shall be liable in monetary damages for any breach of this

Reintroduction Plan (Plan), any performance or failure to perform an obligation

under this Reintroduction Plan or any other cause of action arising from this Plan.

B. Dispute Resolution. The Parties agree to work together in good faith to resolve any

disputes using dispute resolution procedures agreed upon by all Parties.

C. Succession and Transfer. As provided in 50 CFR 13.25, if a Cooperator transfers his

or her interest in the enrolled lands to another non-federal entity, the new owner

has the option to accept the original Cooperators responsibilities and assurances. If

the new owner chooses to accept the original Cooperator’s responsibilities and

assurances, the Service will regard the new owner or manager as having the same

rights and responsibilities with respect to the enrolled lands as the original

Cooperator for the remainder of the term of the agreement. If the new owner

chooses not to participate in the Agreement and the activities described in the

Reintroduction Plan, he or she will retain authorization for incidental take due to

otherwise lawful activities via the Biological Opinion, provided the Service is given an

opportunity to trap ferrets currently on the property.

D. Availability of Funds. Implementation of this Plan is subject to the requirement of

the Anti-Deficiency Act and the availability of appropriated funds. Nothing in this

Plan will be construed by the Parties to require the obligation, appropriation, or

expenditure of any funds from the U.S. Treasury. The Parties acknowledge that the

Service will not be required under the Plan to expend any federal agency’s

appropriated funds unless and until an authorized official of that agency

affirmatively acts to commit to such expenditures as evidenced in writing.

E. No Third-Party Beneficiaries. This Plan does not create any new right or interest in

any member of the public as third-party beneficiary, nor shall it authorize anyone

not a party to this Plan to maintain a suit for personal injuries or damages pursuant

to the provisions of this Plan. The duties, obligations, and responsibilities of the

parties to this Plan with respect to any third-party shall remain as imposed under

existing law.

F. Notices and Reports.

Any notices and reports, including monitoring and annual reports required by this

Agreement shall be delivered to the persons listed below, as appropriate:

Cooperator: Permittee:

Crow Tribe Pete Gober

Attn: Director, Tribal Fish and Game Black-footed Ferret Recovery Coordinator

P.O. Box 340 U.S. Fish and Wildlife Service

Crow Agency, MT 59022 P.O. Box 190

(406) 638-2059 Wellington, CO 80549

(720) 626-5260

Ce:

Crow Tribe-Executive Legal

P.O. Box 340

Crow Agency, MT 59022

(406) 638-2059

Crow Tribal Legislature

Attn: Chairman-Natural Resources Committee

P.O. Box 309

Crow Agency, MT 59022

406-638-2023

11.0 Signatures:

CHAIRMAN, CROW TRIBE DATE

BLACK-FOOTED FERRET RECOVERY COORDINATOR DATE

Appendix A — Map of Enrolled Lands

Appendix B — Cooperator Questionnaire

ANNUAL REPORT FROM COOPERATOR TO PERMITTEE

Certificate of Inclusion #:

Name:

State:

County:

Date (covering past year):

Ferrets

1 Have you seen ferrets or any sign of live ferrets? If so, give

approximate location.

2. Have you seen any dead ferrets? If so, how many?

Please provide approximate location.

3. Please describe what circumstances resulted in

the dead ferret, if known.

Prairie Dogs

4. What changes have you noticed in prairie dog densities? Die-offs?

If any, describe the extent of the die-off.

Grazing

5. Are you actively grazing the enrolled lands?

6. Please describe any changes in your grazing

practices in the past 12 months.

General

Ds Has the reintroduction of ferrets caused any hardship to

your operation? If so, please describe.

8. Other comments or

suggestions

Certificate of Inclusion

Black-footed Ferret Programmatic Safe Harbor Agreement

# MT-001

This certifies that the lands shown on the attached map owned by the Crow Tribe and its

members (Cooperator) are included within the scope of Permit Number TE18695B-0, held by

the U.S. Fish and Wildlife Service, Black-Footed Ferret Recovery Coordinator (Permittee), issued

on October 23, 2013 and expiring on December 31, 2063 under the authority of section

10(a)(1)(A) of the Endangered Species Act of 1973, as amended, 16 U.S.C. 1539(a)(1)(A). The

Permit authorizes incidental take of black-footed ferrets from all lawful activities by the

Cooperator as part of the Black-footed Ferret Programmatic Safe Harbor Agreement

(Agreement) to reintroduce and establish new populations of the black-footed ferret. Pursuant

to the Permit, this Certificate of Inclusion authorizes incidental take of the black-footed ferret

that may result from any otherwise lawful activity on the above described lands, subject to the

terms and conditions of the Permit, the Reintroduction Plan, and the Agreement. This

Certificate of Inclusion becomes binding upon the Cooperator upon the date of the last

signature below and continues for as long as the terms of this Agreement and the

Reintroduction Plan are met. The attached Reintroduction Plan is incorporated as part of this

Certificate of Inclusion for the enrolled lands.

It is understood that any ownership interest in these lands that is not addressed via an

appropriate signature below (e.g., mineral interest) is not constrained by this agreement and

will not be limited in any way from the exercise of such interests, except when related to the

deliberate take of a listed species and any already extant legal obligations.

COOPERATOR, CROW TRIBE DATE

BLACK-FOOTED FERRET RECOVERY COORDINATOR DATE

Lands Owned by the Crow Tribe Included Within the Scope of Permit TE18695B-0

in Big Horn and Yellowstone counties, Montana