The effective date of this PA is the date of the last signatory signature affixed to these pages.

Signatories:

Black Hills National Forest

CES

B-W-t0

CraigBobtien, Forest Supervisor Date
Wyoming State Historic Preservation Officer

: 3//5/ 20/2
Mary HopkingTiterim SHPO Date
Approval as to Form:
Wyoming Attorney General’s Office
£1 AY #57143 March 4, 2010
Donald Gerstein, Date

Senior Assistant Attorney General

Black Hills National Forest Travel Management Programmatic Agreement
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PROGRAMMATIC AGREEMENT
AMONG
THE BLACK HILLS NATIONAL FOREST AND THE WYOMING STATE HISTORIC
PRESERVATION OFFICER,
REGARDING THE
BLACK HILLS NATIONAL FOREST TRAVEL MANAGEMENT ANALYSIS

WHEREAS, The purpose of this federal undertaking is to improve management of motorized vehicle use
on National Forest lands within the Black Hills National Forest (Forest) in accordance with regulations at
36 CFR §§212, 251, 261, and 295, and as described in Travel Management; Designated Routes and Areas
for Motor Vehicle Use; Final Rule (70FR68264); and

WHEREAS, the Forest has a multiple-use mission to manage their public lands for a variety of resources,
values, products, and uses that may involve historic properties; and

WHEREAS, the Area of Potential Effects (APE) is defined, in part, in a statement developed by the
USDA Forest Service (Agency) in consultation with the Advisory Council on Historic Preservation
(ACHP) entitled USDA Forest Service Policy for NHPA Compliance in Travel Management: Designated
Routes for Motor Vehicle Use, which provided policy statement outlining how the agency would satisfy
NHPA requirements as it proceeds with its analyses designating a revised system of motorized routes; and

WHEREAS, 56 cultural resource sites and seven isolated finds have been identified in the Wyoming
APE; and

WHEREAS, there are 183 miles of linear routes within the Wyoming APE and 100% of the APE has
been intensively surveyed and all cultural resources have been identified and recorded; and

WHEREAS, the Forest has submitted a cultural resources report to the Wyoming State Historic
Preservation Officer (WYSHPO), and the WYSHPO has accepted the report in which the Forest provides
a detailed description of the APE according to 36 CFR §800.4(a) and summarizes the results of the
intensive field; and

WHEREAS, twenty-four (24) cultural sites within the APE remain unevaluated for eligibility to the
National register of Historic Places (NRHP); and

WHEREAS, the effects of this undertaking on the unevaluated cultural sites cannot be fully determined
prior to project approval; and

WHEREAS, the purpose of this Programmatic Agreement (PA) is to ensure that the Agency meets its
Section 106 obligations under the National Historic Preservation Act (NHPA) by completing evaluations
assessing the National Register of Historic Places (NRHP) significance according to criteria in 36 CFR
$60 for all cultural properties located within the APE; and

WHEREAS, Tribal consultation for the undertaking was completed with 16 recognized Native American
Tribes through written correspondence and these tribes have been invited to participate in the
development of this PA, and they have declined; and

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WHEREAS, the Agency has notified the ACHP pursuant to 36 CFR Part 800.14(a)(1) and the ACHP has
elected to not participate; and

WHEREAS, the Agency has notified the public pursuant to 36 CFR Part 800.14(b)(1)(ii) of its intent to
development a programmatic agreement and invited to comment on the content of the PA; and

WHEREAS, the State of Wyoming and the WYSHPO do not waive their sovereign immunity by entering
into this PA and each fully retains all immunities and defenses provided by law with respect to any action
based on or occurring as a result of the PA; and

WHEREAS, this PA represents the entire and integrated agreement between the parties and supersedes all
prior negotiations, representations and agreements, whether written or oral, regarding compliance with
Section 106 of the National Historic Preservation Act for those aspects of The Black Hills National Forest
Travel Management Analysis;

NOW, THEREFORE, the Forest and the WYSHPO, agree that pursuant to 36CFR§800.14(b)(1)(i), the
Black Hills National Forest Travel Management Analysis shall be implemented in accordance with the
following stipulations in order to take into account the effects of the undertaking on these cultural sites.

The Black Hills National Forest will insure that the following is implemented:

I. STIPULATIONS
A. National Register of Historic Places Significance Evaluations

1. All NRHP evaluations, determinations of effect, and proposed mitigations if needed, in
consultation with the signatories to this PA shall be completed and concurrence obtained
from the WYSHPO, and/or demonstrated, prior to implementation of the undertaking.

2. Appropriate mitigation measures as agreed upon by the signatories to this PA will be
attached to this PA as an appendix after the NRHP evaluations and assessments of effects
have been completed.

I. CONFIDENTIALITY OF CULTURAL RESOURCE DATA
The signatories to this agreement will adhere to stipulations in 36 CFR §800.11(c) and
Section 304 of the National Historic Preservation Act and 43 CFR §7.18 and Section 9 of the
Archaeological Resources Protection Act regarding the disclosure of sensitive data related to
the location, character, or ownership of historic properties.

Ill. DISPUTE RESOLUTION

A. If there is an objection by any signatory to the manner in which the terms of this PA are
implemented, the objecting signatory will notify the Black Hills National Forest in writing of
the objection. The Forest will notify all other signatories of the objection. All signatories
will consult to resolve the objection.

B. Resolution of the objection will be documented in a written amendment to this PA to be
signed by all signatories. If a signatory fails to respond within 30 days of receipt of the
written amendment, concurrence with the amendment will be assumed by other signatories
and the amendment will go into effect. If resolution of the objection does not require
amendment to the PA, this decision will be documented in writing and provided to all
signatories.

C. Ifthe objection cannot be resolved among the signatories, the matter shall be referred to the
Forest Official (as designated by your agency). The Forest Official (as designated by your
agency) may consult with the Forest Preservation Board on the matter. The Forest Official

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(as designated by your agency) will notify all signatories and Invited Parties of the
recommendations of the Forest. The final decision for resolution of objections shall be made
by the Forest Official (as designated by your agency).

. The Forest shall consider non-signatory objections to the manner in which the terms of the

PA are implemented. If the objection cannot be resolved to the satisfaction of the Forest and
the objecting party, the Forest shall request the signatories to provide their opinion on the
matter. Prior to making a final decision on the matter, the Forest shall take into account all
the signatory opinions received within 15 days of the request.

. Nothing in this Section shall be construed or interpreted as a waiver of any judicial remedy

that would be available to any signatory to this PA.

IV. AMENDMENT

Any signatory to this agreement may request that the other signatories consider amending it if
circumstances change over time and warrant revision of the stipulations. Except in the case
of amendments addressing resolution of disputes pursuant to Section III of this PA,
amendments shall be executed in writing and shall be signed by all signatories in the same
manner as the original PA.

V. TERMINATION

Any signatory to this PA may initiate termination by providing written notice to the other
signatories of their intent. After notification by the initiating signatory, the remaining
signatories shall have 90 business days to consult to seek agreement on amendments or any
other actions that would address the issues and avoid termination. In the event of
termination, the Black Hills National Forest shall refer to 36 CFR §800 to address any
remaining obligations related to fulfillment of legal mandates under Section 106 of the
NHPA.

VI. SUNSET TERMS

This PA shall remain in effect for two years after the date of execution hereof. The Black
Hills National Forest and WYSHPO shall re-evaluate the PA at the end of that period. The
Forest shall ensure the PA will be re-evaluated and amended to accommodate any changes to
the terms. All signatories will be consulted during the amendment process (see Section IV).

General Provisions

A. _ Entirety of Agreement. This PA, consisting of four (4) pages, represents the entire and
integrated agreement between the parties and supersedes all prior negotiations,
representations and agreements, whether written or oral.

B. Prior Approval. This PA shall not be binding upon any party unless this PA has been
reduced to writing before performance begins as described under the terms of this PA, and
unless the PA is approved as to form by the Attorney General or his representative.

C. Severability. Should any portion of this PA be judicially determined to be illegal or

unenforceable, the remainder of the PA shall continue in full force and effect, and any party
may renegotiate the terms affected by the severance.

Execution of this PA and implementation of its terms shall be evidence that Black Hills National Forest
has taken into account the effects of the undertaking on historic properties.

Signatures. In witness whereof, the parties to this PA through their duly authorized representatives have
executed this PA on the dates stated below, and certify that they have read, understood, and agreed to the
terms and conditions of this PA as set forth herein.

Black Hills National Forest Travel Management Programmatic Agreement
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