58882 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 161 

RIN 1076–AE46 

Navajo Partitioned Lands Grazing 

Permits 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Final rule. 

SUMMARY: The Department of the 

Interior (Department), Bureau of Indian 

Affairs (BIA), is amending its 

regulations by adding a new part 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 this 

regulation is to conserve the rangelands 

of the NPL in order to maximize future 

use of the land for grazing and other 

purposes, while recognizing the 

importance of livestock in the Navajo 

way of life. 

DATES: Effective January 5, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Archibald H. Wells, Acting Deputy 

Bureau Director, Trust Services, Attn: 

Agriculture and Range, Mail Stop 4655– 

MIB, 1849 C Street, NW., Washington, 

DC 20240, Telephone 202–208–6464. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Response to Comments 

III. Part-by-Part Analysis 

IV. Procedural Requirements 

I. Background 

This regulation is issued to 

implement the Secretary of the 

Department of the Interior’s (Secretary) 

responsibilities for the NPL as mandated 

by the Navajo-Hopi Settlement Act of 

1974, 25 U.S.C. 640d–6402–31, as 

amended by the Navajo-Hopi Indian 

Relocation Amendments Acts of 1980, 

94 Stat. 929, and the Federal court 

decisions of Healing v. Jones, 174 F. 

Supp. 211 (D. Ariz. 1959) (Healing I), 

Healing v. Jones, 210 F. Supp. 126 (D. 

Ariz. 1962), aff’d 363 U.S. 758 (1963) 

(Healing II), Hopi Tribe v. Watt, 530 F. 

Supp. 1217 (D. Ariz. 1982), and Hopi 

Tribe v. Watt, 719 F.2d 314 (9th Cir. 

1983). 

This regulation also incorporates the 

requirements of the American Indian 

Agricultural Resource Management Act 

(AIARMA) (107 Stat. 2011, 25 U.S.C. 

3701 et seq.), as amended. The purposes 

of AIARMA include carrying out the 

trust responsibility of the United States 

and promoting self-determination of 

Indian tribes by providing for the 

management of Indian agricultural lands 

and related renewable resources in a 

manner consistent with identified tribal 

goals and priorities for conservation, 

multiple use, and sustained yield; by 

authorizing the Secretary to take part in 

the management of Indian agricultural 

lands with the participation of the 

beneficial owners of the land in a 

manner consistent with the trust 

responsibility of the Secretary and the 

objectives of beneficial owners; and by 

providing for the development and 

management of Indian agricultural land. 

The AIARMA requires that the Secretary 

conduct all land management activities 

on Indian agricultural lands in 

accordance with agricultural resource 

management plans, integrated resources 

management plans, and all tribal laws 

and ordinances, except where such 

compliance would be contrary to the 

trust responsibility of the United States. 

The proposed regulation was 

published in the Federal Register on 

November 12, 2003 (68 FR 64023), with 

a 90-day public comment period that 

ended on February 10, 2004. Before the 

proposed regulation was published, BIA 

received approval to publish the draft 

regulation from the Navajo Nation at a 

meeting held on June 26, 2003, in 

Window Rock, Arizona. 

On October 27, 2004, the Navajo Hopi 

Land Commission, by a 6–0 vote, passed 

a resolution recommending concurrence 

in the final regulation. On February 10, 

2005, the Navajo Nation Resources 

Committee, by a 7–0 vote, 

recommended concurrence, and referred 

the final regulation to the Navajo Nation 

Intergovernmental Relations Committee 

for final concurrence. On April 8, 2005, 

the Navajo Nation Intergovernmental 

Relations Committee, by an 8–0 vote, 

passed a resolution concurring in and 

approving the final regulation. 

This regulation will become effective 

90 days after date of publication in the 

Federal Register. 

II. Response to Comments 

The Department solicited comments 

from all interested parties through its 

publication of the Proposed Rule in the 

Federal Register on November 12, 2003 

(68 FR 64023). During the comment 

period, BIA employees and 

representatives from the Navajo Nation 

Resources Committee, the Navajo-Hopi 

Land Commission Office, the Navajo 

Nation Department of Agriculture, and 

the NPL District Grazing Committee 

members held public meetings in 

Tonalea, Arizona, on December 10, 

2003, and in Pinon, Arizona, on 

December 11, 2003. These meetings 

were well attended, and many NPL 

residents testified in both the English 

and Navajo languages. A certified 

Navajo interpreter was present at the 

meetings to translate comments for the 

court reporter so that all testimony was 

recorded. 

The Department received a total of 63 

comments, representing 53 individuals, 

on all parts of the proposed rule. The 

comments were carefully reviewed by 

the regulation drafting team made up of 

BIA employees from Washington, DC, 

and the Navajo Regional Office, 

attorneys from the Solicitor’s Office, and 

representatives from the Navajo Nation, 

and depending upon their merit, the 

Department accepted, accepted with 

revision, or rejected comments made on 

each part of the rule. As noted in the 

part-by-part analysis below, certain 

sections of the regulation have been 

clarified in direct response to 

comments. Additionally, some language 

has been deleted and/or added to 

provide for increased clarity and 

precision. Substantive comments are 

summarized below. 

III. Part-by-Part Analysis 

25 CFR Part 16—Navajo Partitioned 

Lands Grazing Permits 

The purpose of this regulation is to 

conserve the rangelands of the NPL in 

order to maximize future use of the land 

for grazing and other purposes, while 

recognizing the importance of livestock 

in the Navajo way of life. This 

regulation is an addition to the 

regulations of the Bureau of Indian 

Affairs governing the grazing of 

livestock on the NPL of the Navajo-Hopi 

FJUA of the 1882 Executive Order 

reservation. 

The various subparts of part 161 

address the purpose and scope of the 

NPL grazing permits; the definition of 

terms; the application of tribal policies 

and laws pertaining to permits; 

environmental compliance and 

management documents required by 

AIARMA; the process by which carrying 

capacity and stocking rates are 

established; permit requirements; 

eligibility and priority criteria for 

reissuance of cancelled permits; permit 

transfer, assignment and modification; 

procedures for the investigation, 

notification and processing of permit 

violations; procedures for trespass 

notification, enforcement, actions and 

penalties, damages and costs; and 

procedures by which the Navajo Nation 

provides concurrence to BIA under this 

part. 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58883 

General Observations in Response to 

Comments 

Several commenters expressed 

general support for the regulation’s 

purpose of land restoration and resource 

management. However, numerous 

concerns and questions were raised by 

commenters. Some commenters found 

that the regulation did not clearly 

identify whether BIA or the Navajo 

Nation will oversee particular activities, 

or expressed concern about the difficult 

nature of enforcing the regulation. One 

commenter felt that the regulation is too 

‘‘authoritarian rather than flexible.’’

We believe the regulation provides 

the significant flexibility in 

implementation as required by statute. 

Section 640d–9(e)(1)(A) of the 

Settlement Act requires that all 

conservation practices, including 

grazing control and range restoration 

activities be coordinated and executed 

with the concurrence of the Navajo 

Nation. Thus, conservation practices 

will be cooperatively developed and 

implemented by both BIA and the 

Navajo Nation. Further, this regulation 

provides the Navajo Nation with the 

opportunity to take the lead role in any 

part of this regulation, either by 

enforcing tribal laws as provided in 

subpart B, or through the contracting 

process pursuant to Public Law 93–638. 

The regulation therefore allows for a 

range of approaches in implementation. 

However, pursuant to AIARMA which 

authorizes the Secretary to carry out the 

trust responsibility of the United States 

in managing Indian agricultural lands, 

the Secretary retains the final authority 

for actions taken under this part. 

Subpart A—Definitions, Authority, 

Purpose and Scope 

Summary of Subpart 

Subpart A contains key terms used 

throughout the regulation. The terms are 

consistent with those found in 

AIARMA. This subpart also describes 

the Secretary s authorities under part 

161. 

Comments 

Numerous commenters expressed 

concern that the regulation does not 

address the importance of livestock in 

the Navajo culture. Another commenter 

was concerned that the regulation 

rehabilitates the environment but not 

human lives. We recognize the crucial 

role of livestock, and have revised the 

Summary and section 161.3 of the 

regulation to note the importance of 

livestock in the Navajo way of life, 

tradition and culture. The BIA and 

Navajo Nation were mindful of the 

impact that this regulation would have 

on the NPL residents. The regulation is 

intended to facilitate recovery of the 

NPL rangeland which in turn will result 

in improved conditions for NPL 

residents. 

A number of commenters stated that 

additional funding is necessary in order 

for the regulation to achieve its goals. 

Two commenters inquired as to whether 

funding was included as part of BIA’s 

assistance in Navajo law enforcement. 

While we have not made any change to 

the regulation because funding is an 

issue that is determined by Congress, 

the Navajo Nation stated that it would 

address its concerns about funding for 

implementation of the regulation to the 

Department in a forthcoming tribal 

resolution. 

Another commenter felt that 

individuals should be compensated to 

the extent that their rights are lost due 

to the regulation. This regulation does 

not intentionally contemplate the loss of 

any individual rights. However, if an 

individual feels that his or her rights 

have been violated by a decision made 

by BIA, the decision may be appealed 

pursuant to 25 CFR part 2. Decisions 

made by the Navajo Nation under this 

part may be appealed to the appropriate 

hearing body of the Navajo Nation. 

Section 161.801 addresses appeals made 

under this part. No change was made to 

the regulation. 

Several commenters requested 

clarification of terms used in the 

regulation. In response to these requests, 

section 161.1 has been revised to further 

define the term ‘‘improvements,’’ by 

including examples such as windmills, 

water troughs, fences, and cattleguards. 

Also a definition of ‘‘other affected land 

users’’ was added to section 161.4. 

Several commenters also indicated 

that the District Grazing Committee 

should be given greater priority in 

decision making. The term ‘‘Navajo 

Nation’’ as used in this regulation 

includes the District Grazing Committee 

and such authority provided to it by the 

Navajo Nation. No change was made to 

the regulation. 

One commenter questioned how the 

regulation would classify Shetland 

ponies, and one felt that the llama 

should not count as an animal unit. 

Shetland ponies will be classified as 

horses, and llamas kept as livestock will 

require a permit because such animals 

consume forage and are used to guard 

sheep. No change was made to the 

regulation. 

One commenter felt that NPL District 

Rangers should play a larger role in 

carrying out the regulation. The role of 

NPL District Rangers will be determined 

by the Navajo Nation and BIA at the 

implementation stage of this regulation. 

No change was made to the regulation. 

Another commenter stated that the 

Secretary should be responsible for 

assisting the Navajo people in 

improving their farming methods under 

section 161.1. Pursuant to AIARMA, the 

Secretary is authorized to increase 

educational and training opportunities 

in all aspects of agricultural and land 

management. Education and assistance 

can be addressed on a continuing basis 

by BIA and the Navajo Nation following 

finalization of this regulation. No 

change was made to the regulation. 

One commenter was concerned that 

there will be two different permits used 

on the Navajo Reservation; i.e., 25 CFR 

parts 167 and 161. Another commenter 

expressed concern that this regulation 

and part 167 create different standards 

for permit eligibility. One commenter 

was concerned that the regulation 

would force people to choose between 

either grazing on non-NPL Navajo lands 

or the NPL. In response, part 167 

governs grazing on the majority of the 

Navajo Reservation. However, because 

grazing management on the NPL must 

comply with the requirements of the 

Settlement Act, a separate permitting 

system must be used on the NPL. 

Pursuant to section 161.4, contiguous 

areas outside of the NPL may be 

included under this part which may 

eliminate any confusion caused by two 

different permitting systems on 

contiguous parcels. The Navajo Nation 

will have discretion to determine 

whether an individual may hold permits 

under both parts 161 and 167. No 

change was made to the regulation. 

Subpart B—Tribal Policies and Laws 

Pertaining to Permits 

Summary of Subpart 

This subpart is consistent with 

AIARMA, and makes clear that Navajo 

Nation laws generally apply to land 

under the jurisdiction of the Navajo 

Nation, except to the extent that those 

Navajo Nation laws are inconsistent 

with applicable Federal law. Further, 

unless prohibited by Federal law, BIA 

will recognize and comply with tribal 

laws regulating activities on the NPL, 

including tribal laws relating to land 

use, environmental protection, and 

historic or cultural preservation. 

Comments 

Two commenters expressed concern 

about conflicts between Federal law and 

those of the Navajo Nation. Sections 

161.100 and 161.101, in compliance 

with section 3712(b) of AIARMA, 

address this concern by providing that 

Navajo Nation law applies so long as it 

58884 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

does not conflict with Federal law, and 

that the Navajo Nation is primarily 

responsible for enforcing tribal laws on 

the NPL. One commenter felt that the 

enforcement role of the Navajo Nation 

Resources Committee and the Navajo 

Nation Courts is ignored under section 

161.101. However, section 161.101 

provides discretion for the Navajo 

Nation to determine the roles of the 

Navajo Nation Resources Committee 

and Courts. No change was made to the 

regulation. 

Subpart C—General Provisions 

Summary of Subpart 

This subpart lists the environmental 

compliance and management 

documents that are required by 

AIARMA. This subpart also discusses 

how carrying capacity and stocking 

rates are established. 

Comments 

Numerous commenters expressed 

concern that this regulation will result 

in the loss of livestock. One commenter 

felt that stocking rate adjustments 

should be prorated and not be made 

equally under section 161.204. In 

response, the regulation provides that 

livestock numbers may be reduced 

when stocking rates are established in 

order to facilitate range recovery. While 

the extent of such permit reductions 

will not be known until BIA and the 

Navajo Nation review the current 

carrying capacity of each range unit 

pursuant to section 161.204, both BIA 

and the President’s Office of the Navajo 

Nation will explore all possible 

alternatives to the loss of livestock. No 

change was made to the regulation. 

Several commenters indicated that the 

permit process should include more 

environmental studies. Sections 161.200 

and 161.201, in compliance with 

AIARMA section 3711(b), address this 

concern by requiring that an agricultural 

resource management plan be prepared, 

and that actions taken by BIA under this 

regulation must comply with the 

National Environmental Policy Act, 42 

U.S.C. 431 et seq., applicable 

regulations of the Council on 

Environmental Quality, 40 CFR part 

1500, and applicable tribal laws and 

provisions of the Navajo Nation 

Environmental Policy Act CAP–47–95, 

where the tribal laws and provisions do 

not violate a Federal or judicial decision 

or conflict with the Secretary’s trust 

responsibility under Federal law. No 

change was made to the regulation. 

One commenter questioned when 

specific environmental standards would 

be announced. The standards for 

environmental compliance are set forth 

in the statutes and regulations listed 

above. Compliance with these standards 

and regulations is an ongoing 

responsibility of the BIA and Navajo 

Nation. No change was made to the 

regulation. 

Some commenters were concerned 

that the regulation did not address the 

manner in which current NPL livestock 

will be treated if stocking rates are 

reduced. We believe this comment 

refers to the removal of livestock that 

exceed permit stocking rates. This issue 

will be addressed at the implementation 

stage following finalization of the 

regulation. Sufficient time and 

accommodations will be made available 

to implement changes for individuals 

affected by this regulation. No change 

was made to the regulation. 

One commenter expressed concern 

that livestock kept and grazed elsewhere 

would count towards NPL livestock 

limitations under section 161.204. 

Livestock grazed elsewhere on the 

Navajo Reservation will have no effect 

on the number of NPL grazing permits 

that are issued or on the stocking rates 

for each permit. No change was made to 

the regulation. 

One commenter felt that private 

agreements should be honored when 

range unit boundaries are set, and 

another was concerned that range units 

would be established based on the 

already standing fences. Section 161.202 

provides flexibility in determining range 

unit boundaries, and allows for 

agreements to be reached based on 

historical use. Fences may also be taken 

into account when establishing range 

unit boundaries. No change was made to 

the regulation. 

One commenter felt that more than 

two horses should be allowed on a 

grazing unit. In response, the BIA and 

the Navajo Nation have determined that 

because cattle, sheep and goat herd sizes 

are relatively small, two horses are 

sufficient for the management of these 

herds. No change was made to the 

regulation. 

One commenter felt that the 

regulation should discuss deferred 

compensation. Determinations about 

compensation will be made in 

accordance with Federal and tribal law. 

No change in the regulation was made. 

Subpart D—Grazing Permit 

Requirements 

Summary of Subpart 

This subpart describes the general 

requirements for obtaining a permit, the 

provisions contained in a grazing 

permit, the restrictions placed on 

permits, and other permit requirements. 

Comments 

Several commenters raised questions 

regarding permit costs. The regulation 

does not require that rentals or fees be 

paid for permits because the Navajo 

Nation requested that the regulation not 

include grazing fee provisions. Several 

commenters were concerned about the 

period of permit validity and permit 

renewals. Under section 161.303 

permits are valid for one year, and will 

be automatically renewed so long as the 

permittee remains in good standing. No 

change was made to the regulation. 

Two commenters also indicated that 

the manner in which permits will be 

issued is unclear. We believe this 

question refers to the process of 

applying for and receiving permits. The 

specific steps that must be taken by a 

potential permittee when applying for a 

permit are not outlined in this 

regulation. However, BIA and Navajo 

Nation personnel will be available to 

answer questions about the permitting 

process after finalization of this 

regulation. 

Several commenters were concerned 

that the language of section 

161.301(a)(14) would result in 

permittees being held responsible for 

the cleanup of hazardous waste spills, 

or that hazardous dumping would be 

authorized. Due to the continuing 

confusion created by this language, 

section 161.301(a)(14) was deleted from 

the regulation. Section 161.301(a)(15) 

was redesignated as section 

161.301(a)(14). Nonetheless, liability 

standards for hazardous waste are 

governed by applicable statutes and 

regulations, and the elimination of this 

language from this regulation does not 

alter such standards. 

One commenter was concerned about 

the ability of a family to share a permit. 

Section 161.302(b) requires that a 

permit be issued in the name of one 

individual only, and section 161.302(f) 

requires that a permit cannot be 

subdivided once it has been issued. This 

requirement was developed to ensure 

that permit ownership and 

accountability may be efficiently 

tracked. It does not preclude a family 

from sharing in permit responsibilities, 

or for a permit holder from assigning his 

or her permit to a family member under 

section 161.500. 

Subpart E—Reissuance of Grazing 

Permits 

Summary of Subpart 

This subpart sets forth eligibility and 

priority criteria for reissuance of 

cancelled grazing permits. This subpart 

makes clear that the Navajo Nation may 

prescribe eligibility requirements for 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58885 

grazing allocations within 180 days 

following the effective date of these 

regulations. The BIA will prescribe the 

eligibility requirements after expiration 

of the 180-day period in the event that 

the Navajo Nation does not prescribe 

eligibility requirements, or in the event 

that the Navajo Nation does not take 

satisfactory action. This subpart also 

describes how new permits may be 

granted after the initial reissuance of 

permits, and sets forth the procedures 

for reissuing permits and allocating 

permits within each range unit. 

Comments 

Many commenters indicated that 

grazing permits of the deceased should 

pass to their descendants. While permits 

may not automatically pass to 

descendants under this regulation, the 

Navajo Nation has discretion under 

section 161.401 to determine who may 

be granted the permit of a deceased 

permit holder in accordance with 

Navajo Nation law. No change was 

made to the regulation. 

Several commenters expressed 

concern that the regulation and 

specifically section 161.400 give priority 

to those over the age of 65. One 

commenter indicated that all enrolled 

Navajo Nation members over 18 should 

be eligible to receive permits. In 

response, priority under section 

161.400(c)(1) was given to those aged 65 

and older because persons of that age 

are more likely to have had their 

permits cancelled by the 1972 United 

States District Court order in Hamilton 

v. MacDonald, Civ. 579–PCT (1972), 

and are more likely to be dependent on 

livestock for subsistence. No change was 

made to the regulation. 

Commenters were also concerned that 

those not fluent in the English language, 

especially the elderly, will be 

disadvantaged in exercising their rights 

under the regulation. The BIA and the 

Navajo Nation are committed to making 

the materials and processes of this 

regulation available in both the English 

and Navajo languages. No change was 

made to the regulation. 

Commenters were also concerned that 

decisions regarding permit reissuance 

have already been made. Decisions 

regarding permit reissuance have not 

been made by either BIA or the Navajo 

Nation, and any previous discussions of 

permit reissuance were speculative and 

non-binding. 

One commenter felt that those who 

previously grazed on Navajo and Hopi 

land should receive permits under 

section 161.400. Another commenter 

stated that priority for permit reissuance 

should go to those starting a business, 

and one commenter indicated that first 

priority for reissuing permits should go 

to those not paid for relocation. One 

commenter expressed concern that 

residents of Black Mesa, Arizona, would 

be left out of permit reissuance. One 

commenter questioned whether nonNavajos are qualified to receive permits, 

and another expressed concern that 

those outside the Joint Use Area will not 

be qualified to receive permits. No 

changes were made to the regulation in 

response to these comments because the 

Navajo Nation has the discretion to 

determine permit eligibility for these 

and other situations under sections 

161.400 and 161.401. If the Navajo 

Nation does not prescribe eligibility 

criteria for permit reissuance, the 

criteria presented in section 161.400 

will be implemented. The criteria 

presented in section 161.400 were 

developed by BIA and the Navajo 

Nation and are intended to restore 

permits to those permittees who had 

their permits cancelled by court order in 

Hamilton v. MacDonald, Civ. 579–PCT 

(1972). Under section 161.400, only 

current residents of the NPL may 

receive permits. This criterion was 

developed to ensure that current NPL 

residents receive permits before nonNPL residents receive them. Section 

161.401 provides complete discretion to 

the Navajo Nation to grant permits 

based on its own criteria following 

reissuance of permits under section 

161.400. No change was made to the 

regulation. 

Another commenter felt that 180 days 

is insufficient time for the Navajo 

Nation to establish permit eligibility 

requirements. The Navajo Nation may 

receive an extension to determine 

eligibility criteria under section 161.400 

upon request and a showing that 

progress is being made. No change was 

made to the regulation. 

Subpart F—Modifying A Permit 

Summary of Subpart 

This subpart describes how permits 

may be transferred, assigned or 

modified. 

Comments 

One commenter expressed concern 

about the impact that outside businesses 

would have on grazing permits under 

section 161.502 if businesses were 

allowed to occupy grazing lands and 

remove those lands from a range unit. 

Another commenter felt that in the 

event that a special land use results in 

permit modification, the permittee 

should be compensated. In response, 

section 161.502 provides discretion to 

BIA and the Navajo Nations to 

determine whether a special land use 

may occupy grazing land, but does not 

require that special land uses be 

approved. Determination about special 

land uses will be made on a case-bycase basis by BIA and the Navajo 

Nation. Determinations about 

compensation will be made in 

accordance with Federal and tribal law. 

No change was made to the regulation. 

Subpart G—Permit Violations 

Summary of Subpart 

This subpart sets forth the procedures 

for investigation, notification and 

processing of permit violations. This 

subpart also describes the process by 

which mediation can be used in the 

event of a permit violation. 

Comments 

One commenter expressed concern 

that the responsibilities for monitoring 

permit compliance under section 

161.601 were unclear. In response to 

this concern, section 161.601 has been 

slightly modified to add ‘‘and/or Navajo 

Nation’’ to provide additional 

enforcement capabilities. 

One commenter suggested that section 

161.603 be deleted. This section was 

developed by BIA and the Navajo 

Nation to provide an alternative means 

of resolving permit violations or 

disputes prior to permit cancellation. 

No change was made to the regulation. 

Subpart H—Trespass 

Summary of Subpart 

This subpart describes the process for 

trespass notification, enforcement, 

actions and penalties, damages and 

costs. This subpart is substantially 

similar to the general grazing 

regulations, 25 CFR part 166, subpart I, 

and is consistent with AIARMA. 

Comments 

Numerous commenters were 

concerned that the trespass provisions 

and penalties are too harsh and 

insufficiently defined. However, section 

3713 of AIARMA requires the Secretary 

to establish civil penalties for the 

commission of trespass on Indian 

agricultural lands, and specifies what 

those penalties must be. The trespass 

provisions contained in this subpart are 

substantially similar to the trespass 

provisions contained in the general 

grazing regulations in 25 CFR part 166, 

and incorporate the requirements of 

AIARMA. In accordance with section 

161.101, BIA has agreed that it will use 

the Navajo Nation Trespass Code when 

resolving trespass issues on the NPL. 

However, if a trespass issue remains 

unresolved under the Navajo Nation 

Trespass Code, the provisions of this 

58886 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

subpart will be applied. No change was 

made to the regulation. 

Several commenters were concerned 

that a trespass may result in loss of NPL 

occupancy under section 161.715. This 

is a concern to some NPL residents 

because the issue of authorized 

occupancy on the NPL is somewhat 

unclear in some cases due the particular 

history of the area. In response, we 

slightly modified section 161.715(a) to 

eliminate loss of occupancy as a 

consequence of failure to pay penalties, 

damages or costs. 

Subpart I—Concurrence/Appeals/ 

Amendments 

Summary of Subpart 

This subpart sets forth the procedures 

for the Navajo Nation to provide 

concurrence to BIA under this part. This 

subpart also states that decisions made 

by BIA under this part may be appealed, 

and that decisions made by the Navajo 

Nation under this part may be appealed 

to the appropriate hearing body of the 

Navajo Nation. 

Comments 

Some commenters were concerned 

with the possibility that BIA may 

implement proposals without the 

Navajo Nation’s concurrence under 

section 161.800(b)(5). In response, 

section 161.800 provides a detailed 

procedure by which the Navajo Nation 

provides concurrence to BIA 

conservation practices, including 

grazing control and range restoration 

activities as required by section 640d–

9(e)(1)(A) of the Settlement Act. If 

however, this process does not result in 

Navajo Nation concurrence, BIA is 

authorized to act by AIARMA, which 

authorizes the Secretary to carry out the 

trust responsibility of the United States 

in managing Indian agricultural lands. 

Every attempt will be made to resolve 

issues of concern prior to the 

implementation of section 161.800(b)(5). 

No change was made to the regulation. 

One commenter indicated that the 

citation in section 161.800(a) should be 

‘‘Hopi v. Watt’’ rather than the 

‘‘Settlement Act.’’ We slightly modified 

the regulation to include the specific 

citation for the Settlement Act for 

clarity. 

Another commenter felt that the 

Navajo-Hopi Land Commission is best 

suited for recommending amendments 

under section 161.802. This section 

requires the Resources Committee to 

incorporate the recommendation of the 

Navajo-Hopi Land Commission in 

approving amendments to this part. No 

change was made to the regulation. 

IV. Procedural Requirements 

A. Review Under Executive Order 12866 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Office of 

Management and Budget (OMB) must 

determine whether the regulatory action 

is ‘‘significant’’ and therefore subject to 

OMB review and the requirements of 

the Executive Order. The Order defines 

‘‘significant regulatory action’’ as one 

that is likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

in the Executive Order. 

The rule describes how BIA will 

administer grazing permits on trust 

land. Thus, the impact of the rule is 

confined to the Federal Government and 

individual Indian and the Navajo 

Nation, and does not impose a 

compliance burden on the economy 

generally. Accordingly, it has been 

determined that this rule is not a 

‘‘significant regulatory action’’ under 

any of the preceding criteria. 

B. Review Under the Regulatory 

Flexibility Act 

Under the Regulatory Flexibility Act, 

5 U.S.C. 601 et seq., as amended, 

whenever an agency is required to 

publish a notice of rule making for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities. Indian tribes are not considered 

to be small entities for purposes of the 

Regulatory Flexibility Act, and 

consequently, no regulatory flexibility 

analysis has been done. 

This rule does not have significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or the ability of U.S. based 

enterprises to compete with foreignbased enterprises because it concerns 

only the Navajo Nation. Accordingly, 

this regulation will not have an 

economic impact on a substantial 

number of small entities, and, therefore, 

no regulatory flexibility analysis has 

been prepared. 

C. Review Under the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996 

Under 5 U.S.C. 804(2), SBREFA, a 

rule is major if OMB finds that it results 

in: 

a. An annual effect on the economy of 

$100 million or more; 

b. A major increase in costs or prices 

for consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions; or 

c. Significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

This rule is not a major rule as 

defined by section 804 of the SBREFA. 

This rule is uniquely confined to the 

Federal Government, individual Indians 

and the Navajo Nation, thus, it will not 

result in the expenditure by State, local 

and tribal governments, in the aggregate, 

or by the private sector, of $100 million 

or more in any one year. This rule 

provides regulatory guidance for grazing 

permits on trust lands owned by 

individual Indians and the Navajo 

Nation. 

D. Review Under the Unfunded 

Mandates Reform Act 

This rule would not impose unfunded 

mandates as defined by the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4, March 22, 1995, 109 Stat. 48). 

This rule will not result in the 

expenditure by State, local and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year (2 U.S.C. 1532). The 

impact of this rule is confined to grazing 

permits on land held in trust for the 

Navajo Nation. Accordingly, this 

proposed rule will not result in the 

expenditure of $100 million or more in 

any one year. 

E. Review Under Executive Order 12630 

This rule does not have significant 

‘‘takings’’ implications. Policies that 

have taking implications do not include 

actions affecting properties that are held 

in trust by the United States. The NPL 

grazing regulations provide specific 

regulatory guidance on trust lands. 

F. Review Under Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order 13211 that speaks to 

regulations that significantly affect 

energy supply, distribution, and use. 

The Executive Order requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58887 

rule is restricted to 25 CFR 161, NPL 

Grazing Permits on lands held in trust 

for individual Indians and tribes. 

Mineral development on lands held in 

trust for individual Indians and the 

Navajo Nation are regulated under the 

Indian Mineral Development Act. 

Regulations for mineral development 

are provided under a separate part in 25 

CFR 211, 212 and 225. This proposed 

implementation guidance is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

no Statement of Energy Effects has been 

prepared. 

G. Review Under Executive Order 12612 

This rule does not have significant 

Federalism effects because it pertains 

solely to Federal-tribal relations and 

will not interfere with the roles, rights, 

and responsibilities of States. While this 

proposed rule will impact tribal 

governments, there is no federalism 

impact on the trust relationship or 

balance of power between the United 

States government and the various tribal 

governments affected by this 

rulemaking. Therefore, in accordance 

with Executive Order 13132, it is 

determined that this rule will not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

assessment. 

H. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of the 

Executive Order 12988, Civil Justice 

Reform, 61 FR 4729, February 7, 1996, 

imposes on executive agencies the 

general duty to adhere to the following 

requirements: 

(1) Eliminate drafting errors and 

ambiguity; 

(2) Write regulations to minimize 

litigation; and 

(3) Provide a clear legal standard for 

effective conduct rather than a general 

standard and promote simplification 

and burden reduction. 

With regard to the review required by 

section 3(a), section (b) of Executive 

Order 12988 specifically requires that 

executive agencies make every 

reasonable effort to insure that the 

regulations: 

(1) Clearly specifies the preemptive 

effect, if any; 

(2) Clearly specifies any effect on 

existing federal law or regulation; 

(3) Provides a clear legal standard for 

affecting conduct while promoting 

simplification and burden reduction; 

(4) Specifies the retroactive affect if 

any; 

(5) Adequately defines key terms; and 

(6) Addresses other important issues 

affecting clarity and general 

draftsmanship. 

Section 3(c) of Executive Order 12988 

requires executive agencies to review 

regulations in light of the applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet on one or 

more of them. This rule does not unduly 

burden the judicial system and meets 

the applicable standards provided in 

sections 3(a) and 3(b)(2) of the Executive 

Order 12988. 

I. Review Under the National 

Environmental Policy Act (NEPA) 

This rule is categorically excluded 

from the preparation of an 

environmental assessment or an 

environmental impact statement under 

the NEPA of 1969, 42 U.S.C. 4321, et 

seq., because its environmental effects 

are too broad, speculative, or conjectural 

to lend themselves to meaningful 

analysis and the Federal actions under 

this rule will be subject at the time of 

the action itself to the NEPA process, 

either collectively or case-by-case. 

Further, no extraordinary circumstances 

exist to require preparation of an 

environmental assessment or 

environmental impact statement. 

J. Review Under Executive Order 13175 

Pursuant to Executive Order 13175 of 

November 6, 2000, Consultation and 

Coordination with Indian Tribal 

Governments, the Department has 

determined that because this rule will 

uniquely affect tribal governments, it 

will follow Department and 

Administrative protocols in consulting 

with tribal governments on rulemaking. 

Consequently, tribal governments were 

notified through the proposed 

rulemaking published in the Federal 

Register and through BIA field offices, 

of the ramifications of this rule. This 

enabled tribal officials and the affected 

tribal constituency throughout the NPL 

to have meaningful and timely input in 

the development of this rule. This will 

reinforce good intergovernmental 

relations with the Navajo Nation and 

better inform, educate and advise the 

Navajo Nation on compliance 

requirements of this rule. We consulted 

with representatives of the Navajo 

Nation during the formulation of this 

rule. Representatives from the NavajoHopi Land Commission and Navajo 

Nation Natural Resources Committee 

met in consultation several times from 

November 2002 to June of 2003 to draft 

the proposed regulations. The 

comments received from these 

consultations were taken into 

consideration in the formulation of this 

rule. We also consulted with the Navajo 

Nation in the formulation of this rule. 

K. Review Under the Paperwork 

Reduction Act 

This rule requires an information 

collection from 10 or more parties, and 

therefore was subject to review under 

the Paperwork Reduction Act of 1995 

(Pub. L. 104–13). The information 

collection regulates grazing permits and 

the use of the Navajo Partitioned Lands. 

The information collection will also 

help protect the lands from overgrazing 

and aid in restoring lands that have 

been overgrazed. The information 

collection involves 5,370 responses with 

an hourly annual burden of 1227 hours 

for an average burden of approximately 

14 minutes. The respondents are not 

required to keep records but many do as 

part of their business. Responses are 

given in order to obtain or retain a 

benefit, namely, acquiring or keeping a 

grazing permit as authorized by the 

Navajo-Hopi Settlement Act of 1974 as 

amended, by federal court decisions 

(Healing v. Jones, 174 F. Supp. 211 (D. 

Ariz. 1959) (Healing I), Healing v. Jones, 

210 F. Supp. 126 (D. Ariz. 1962), and 

Hopi Tribe v. Watt, 530 F. Supp. 1217 

(D. Ariz. 1982), and Hopi Tribe v. Watt, 

719 F. 2d 314 (9th Cir. 1983), and the 

American Indian Agricultural Resource 

Management Act (AIARMA), (107 Stat. 

2011, 25 U.S.C. 3701 et seq.) as 

amended. Interior submitted a request 

for approval of the information request 

which was approved. The OMB Control 

Number is 1076–0162 and expires 

January 31, 2007. 

Comments on this information 

collection can be made at any time and 

sent to the Information Collection 

Clearance Officer at 625 Herndon 

Parkway, Herndon, VA 20170. Please 

note that comments about the burden 

are separate from comments on the rule. 

If you wish to withhold personal 

information, such as your name, you 

must state this prominently at the 

beginning of your comments. We will 

honor your request to the extent that the 

law allows. 

The table showing the burden of the 

information collection is included 

below for your information. 

58888 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

TABLE OF BURDEN FOR 25 CFR 161 

CFR section Number of 

respondents 

Number of annual responses 

Hourly burden 

per response 

(hours) 

Total annual 

hourly burden 

161.102 .......................................................................................... 700 700 ............................ ..............................

161.206 .......................................................................................... 700 700 1⁄2 350 

161.301 .......................................................................................... 700 700 ............................ ..............................

161.302 .......................................................................................... 700 700 1⁄3 233 

161.304 .......................................................................................... 700 700 ............................ ..............................

161.402 .......................................................................................... 700 700 1⁄3 233 

161.500 .......................................................................................... 70 70 1⁄3 23 

161.502 .......................................................................................... 70 70 ............................ ..............................

161.604 .......................................................................................... 35 35 1⁄2 17 .5 

161.606 .......................................................................................... 35 35 1⁄2 17 .5 

161.703 .......................................................................................... 35 35 1⁄2 17 .5 

161.704 .......................................................................................... 35 35 1⁄2 17 .5 

161.708 .......................................................................................... 10 10 1⁄2 5 

161.717 .......................................................................................... 10 10 1 10 

161.800 .......................................................................................... 700 700 1⁄4 175 

161.801 .......................................................................................... 85 85 1⁄2 42 .5 

161.802 .......................................................................................... 85 85 1 85 

Totals ...................................................................................... 700 5,370 ............................ 1,226 .5 

TABLE OF BURDEN FOR 25 CFR 161 

CFR section 

Salary: $5.00 × 

total hourly burden = total hourly burden cost 

Federal burden 

per response 

(hours) 

Total Federal annual burden hours 

Salary: $18.52 × 

total hourly burden = total Federal burden cost 

161.102 .......................................................................................... ............................ 1⁄2 350 $6,482 

161.206 .......................................................................................... $1,750 1⁄4 175 3,241 

161.301 .......................................................................................... ............................ 1⁄4 175 3,241 

161.302 .......................................................................................... 1,165 1⁄4 175 3,241 

161.304 .......................................................................................... ............................ 1⁄4 175 3,241 

161.402 .......................................................................................... 1,165 1 700 12,964 

161.500 .......................................................................................... 115 1 70 1,296 

161.502 .......................................................................................... ............................ 1⁄4 17 .5 324 

161.604 .......................................................................................... 87 1 35 648 

161.606 .......................................................................................... 87 1 35 648 

161.703 .......................................................................................... 87 1 35 648 

161.704 .......................................................................................... 88 1 35 648 

161.708 .......................................................................................... 25 1 10 185 

161.717 .......................................................................................... 50 2 20 370 

161.800 .......................................................................................... 875 1⁄4 212 .5 3,936 

161.801 .......................................................................................... 213 1 85 1,575 

161.802 .......................................................................................... 425 1⁄2 42 .5 787 

Totals ...................................................................................... 6,132 ............................ 2,347 .5 43,475 

List of Subjects in 25 CFR Part 161 

Grazing lands, Indians—lands, 

Livestock. 

Dated: July 29, 2005. 

Michael D. Olsen, 

Acting Principal Deputy Assistant Secretary—

Indian Affairs. 

■ For the reasons stated in the preamble, 

the Department of the Interior, Bureau 

of Indian Affairs, is adding part 161 to 

chapter I of title 25 of the Code of 

Federal Regulations as follows. 

PART 161—NAVAJO PARTITIONED 

LANDS GRAZING PERMITS 

Subpart A—Definitions, Authority, Purpose 

and Scope 

Sec. 

161.1 What definitions do I need to know? 

161.2 What are the Secretary’s authorities 

under this part? 

161.3 What is the purpose of this part? 

161.4 To what lands does this part apply? 

161.5 Can BIA waive the application of this 

part? 

161.6 Are there any other restrictions on 

information given to BIA? 

Subpart B—Tribal Policies and Laws 

Pertaining to Permits 

161.100 Do tribal laws apply to grazing 

permits? 

161.101 How will tribal laws be enforced 

on the Navajo Partitioned Lands? 

161.102 What notifications are required that 

tribal laws apply to grazing permits on 

the Navajo Partitioned Lands? 

Subpart C—General Provisions 

161.200 Is an Indian agricultural resource 

management plan required? 

161.201 Is environmental compliance 

required? 

161.202 How are range units established? 

161.203 Are range management plans 

required? 

161.204 How are carrying capacities and 

stocking rates established? 

161.205 How are range improvements 

treated? 

161.206 What must a permittee do to 

protect livestock from exposure to 

disease? 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58889 

161.207 What livestock are authorized to 

graze? 

Subpart D—Permit Requirements 

161.300 When is a permit needed to 

authorize grazing use? 

161.301 What will a grazing permit 

contain? 

161.302 What restrictions are placed on 

grazing permits? 

161.303 How long is a permit valid? 

161.304 Must a permit be recorded? 

161.305 When is a decision by BIA 

regarding a permit effective? 

161.306 When are permits effective? 

161.307 When may a permittee commence 

grazing on Navajo Partitioned Land? 

161.308 Must a permittee comply with 

standards of conduct if granted a permit? 

Subpart E—Reissuance of Grazing Permits 

161.400 What are the criteria for reissuing 

grazing permits? 

161.401 Will new permits be granted after 

the initial reissuance of permits? 

161.402 What are the procedures for 

reissuing permits? 

161.403 How are grazing permits allocated 

within each range unit? 

Subpart F—Modifying A Permit 

161.500 May permits be transferred, 

assigned or modified? 

161.501 When will a permit modification 

be effective? 

161.502 Will a special land use require 

permit modification? 

Subpart G—Permit Violations 

161.600 What permit violations are 

addressed by this subpart? 

161.601 How will BIA monitor permit 

compliance? 

161.602 Will my permit be canceled for 

non-use? 

161.603 Can mediation be used in the event 

of a permit violation or dispute? 

161.604 What happens if a permit violation 

occurs? 

161.605 What will a written notice of a 

permit violation contain? 

161.606 What will BIA do if the permitee 

doesn’t cure a violation on time? 

161.607 What appeal bond provisions apply 

to permit cancellation decisions? 

161.608 When will a permit cancellation be 

effective? 

161.609 Can BIA take emergency action if 

the rangeland is threatened? 

161.610 What will BIA do if livestock is not 

removed when a permit expires or is 

cancelled? 

Subpart H—Trespass 

161.700 What is trespass? 

161.701 What is BIA’s trespass policy? 

161.702 Who will enforce this subpart? 

Notification 

161.703 How are trespassers notified of a 

trespass determination? 

161.704 What can a permittee do if they 

receive a trespass notice? 

161.705 How long will a written trespass 

notice remain in effect? 

Actions 

161.706 What actions does BIA take against 

trespassers? 

161.707 When will BIA impound 

unauthorized livestock or other 

property? 

161.708 How are trespassers notified of 

impoundments? 

161.709 What happens after unauthorized 

livestock or other property are 

impounded? 

161.710 How can impounded livestock or 

other property be redeemed? 

161.711 How will BIA sell impounded 

livestock or other property? 

Penalties, Damages, and Costs 

161.712 What are the penalties, damages, 

and costs payable by trespassers? 

161.713 How will BIA determine the 

amount of damages to Navajo Partitioned 

Lands? 

161.714 How will BIA determine the costs 

associated with enforcement of the 

trespass? 

161.715 What will BIA do if a trespasser 

fails to pay penalties, damages and costs? 

161.716 How are the proceeds from trespass 

distributed? 

161.717 What happens if BIA does not 

collect enough money to satisfy the 

penalty? 

Subpart I—Concurrence/Appeals/ 

Amendments 

161.800 How does the Navajo Nation 

provide concurrence to BIA? 

161.801 May decisions under this part be 

appealed? 

161.802 How will the Navajo Nation 

recommend amendments to this part? 

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

U.S.C. 640d et seq. 

Subpart A—Definitions, Authority, 

Purpose, and Scope 

§ 161.1 What definitions do I need to 

know? 

Agricultural Act means the American 

Indians Agricultural Resource 

Management Act (AIARMA) of 

December 3, 1993 (107 Stat. 2011, 25 

U.S.C. 3701 et seq.), and amended on 

November 2, 1994 (108 Stat. 4572). 

Agricultural resource management 

plan means a 10-year plan developed 

through the public review process 

specifying the tribal management goals 

and objectives developed for tribal 

agricultural and grazing resources. Plans 

developed and approved under 

AIARMA will govern the management 

and administration of Indian 

agricultural resources and Indian 

agricultural lands by BIA and Indian 

tribal governments. 

Allocation means the number of 

animal units authorized in each grazing 

permit. 

Animal Unit (AU) means one adult 

cow and her 6-month-old calf or the 

equivalent thereof based on comparable 

forage consumption. Thus as defined in 

the following: 

(1) One adult sheep or goat is 

equivalent to one-fifth (0.20) of an AU; 

(2) One adult horse, mule, or burro is 

equivalent to one and one quarter (1.25) 

AU; or 

(3) One adult llama is equivalent to 

three-fifths (0.60) of an AU. 

Appeal means a written request for 

review of an action or the inaction of an 

official of the Bureau of Indian Affairs 

that is claimed to adversely affect the 

interested party making the request. 

Appeal Bond means a bond posted 

upon filing of an appeal that provides a 

security or guaranty if an appeal creates 

a delay in implementing our decision 

that could cause a significant and 

measurable financial loss to another 

party. 

BIA means the Bureau of Indian 

Affairs within the Department of the 

Interior. 

Bond means security for the 

performance of certain permit 

obligations, as furnished by the 

permittee, or a guaranty of such 

performance as furnished by a thirdparty surety. 

Business day means Monday through 

Friday, excluding federally or tribally 

recognized holidays. 

Carrying capacity means the number 

of livestock and/or wildlife, which may 

be sustained on a management unit 

compatible with management objectives 

for the unit. 

Concurrence means the written 

agreement of the Navajo Nation with a 

policy, action, decision or finding 

submitted for consideration by BIA. 

Conservation practice refers to any 

management measure taken to maintain 

or improve the condition, productivity, 

sustainability, or usability of targeted 

resources. 

Customary Use Area refers to an area 

to which an individual traditionally 

confined his or her traditional grazing 

use and occupancy and/or an area 

traditionally inhabited by his or her 

ancestors. 

Day means a calendar day, unless 

otherwise specified. 

Enumeration means the list of persons 

living on and identified improvements 

located within the Former Joint Use 

Area obtained through interviews 

conducted by BIA in 1974 and 1975. 

Former Joint Use Area means the area 

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. This area was 

established by the United States District 

Court for the District of Arizona in 

Healing v. Jones, 210 F. Supp. 125 

58890 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

(1962), aff’d. 373 U.S. 758 (1963) and is 

located: 

(1) Inside the Executive Order area 

(Executive Order of December 16, 1882); 

and 

(2) Outside Land Management District 

6. 

Grazing Committee means the District 

Grazing Committee established by the 

Navajo Nation Council, that is 

responsible for enforcing and 

implementing tribal grazing regulations 

on the Navajo Partitioned Lands. 

Grazing Permit means a revocable 

privilege granted in writing and limited 

to entering on and utilizing forage by 

domestic livestock on a specified range 

unit. The term as used herein shall 

include authorizations issued to enable 

the crossing or trailing of domestic 

livestock within an assigned range unit. 

Historical Land Use see Customary 

Use Area. 

Improvement means any structure or 

excavation to facilitate management of 

the range for livestock, such as: Fences, 

cattle guards, spring developments, 

windmills, stock ponds, and corrals. 

Livestock means horses, cattle, sheep, 

goats, mules, burros, donkeys, and 

llamas. 

Management Unit is a subdivision of 

a geographic area where unique 

resource conditions, goals, concerns, or 

opportunities require specific and 

separate management planning. 

Navajo Nation means all offices/ 

entities/programs under the direct 

jurisdiction of the Navajo Nation 

Government. 

Navajo Partitioned Lands (NPL) 

means that portion of the Former Joint 

Use Area awarded to the Navajo Nation 

under the Judgment of Partition issued 

April 18, 1979, by the United States 

District Court for the District of Arizona, 

and now a separate administrative 

entity within the Navajo Indian 

Reservation. 

Non-Concurrence means the official 

written denial of approval by the Navajo 

Nation of a policy, action, decision, or 

finding submitted for consideration by 

BIA. 

Range management plan is a 

statement of management objectives for 

grazing, farming, or other agriculture 

management including contract 

stipulations defining required uses, 

operations, and improvements. 

Range Unit means a tract of land 

designated as a separate management 

subdivision for the administration of 

grazing. 

Resident means a person who lives on 

the Navajo Partitioned Lands. 

Resources Committee means the 

oversight committee for the Division of 

Natural Resources within the Navajo 

Nation Government. The Resources 

Committee of the Navajo Nation Council 

to whom authority is delegated to 

exercise the powers of the Navajo 

Nation with regards to the range 

development and grazing management 

of the Navajo Partitioned Lands. 

Secretary means the Secretary of the 

Interior or his or her designated 

representative. 

Settlement Act means the Navajo 

Hopi Settlement Act of December 22, 

1974 (88 Stat. 1712, 25 U.S.C. 64d et 

seq., as amended). 

Sheep Unit means an adult ewe with 

un-weaned lamb. It is also the basic unit 

in which forage allocations are 

expressed. 

Special land use means all land usage 

for purposes other than for grazing 

withdrawn in accordance with Navajo 

Nation laws, Federal laws, and BIA 

policies and procedures, such as but not 

limited to: Housing permits, farm leases, 

governmental facilities, rights-of-way, 

schools, parks, business leases, etc. 

Stocking rate means the maximum 

number of sheep units, or animal units 

authorized to graze on a particular 

pasture, management unit, or range unit 

during a specified period of time. 

Trespass means any unauthorized 

occupancy, grazing, use of, or action on 

the Navajo Partitioned Lands. 

§ 161.2 What are the Secretary’s 

authorities under this part? 

(a) Under Section 640d–9(e) of the 

Settlement Act, lands partitioned under 

the Settlement Act are subject to the 

jurisdiction of the tribe to whom 

partitioned. The laws of the tribe apply 

to the partitioned lands as in paragraphs 

(a)(1) and (a)(2) of this section. 

(1) Effective October 6, 1980: 

(i) All conservation practices on the 

Navajo Partitioned Lands, including 

control and range restoration activities, 

must be coordinated and executed with 

the concurrence of the Navajo Nation; 

and 

(ii) All grazing and range restoration 

matters on the Navajo Reservation lands 

must be administered by BIA, under 

applicable laws and regulations. 

(2) Effective April 18, 1981, the 

Navajo Nation has jurisdiction and 

authority over any lands partitioned to 

it and over all persons on these lands. 

This jurisdiction and authority apply: 

(i) To the same extent as is applicable 

to those other portions of the Navajo 

reservation; and 

(ii) Notwithstanding any provision of 

law to the contrary, except where there 

is a conflict with the laws and 

regulations referred to in paragraph (a) 

of this section. 

(b) Under the Agricultural Act, the 

Secretary is authorized to: 

(1) Carry out the trust responsibility of 

the United States and promote Indian 

tribal self-determination by providing 

for management of Indian agricultural 

lands and renewable resources 

consistent with tribal goals and 

priorities for conservation, multiple use, 

and sustained yield; 

(2) Take part in managing Indian 

agricultural lands, with the 

participation of the land’s beneficial 

owners, in a manner consistent with the 

Secretary’s trust responsibility and with 

the objectives of the beneficial owners; 

(3) Provide for the development and 

management of Indian agricultural 

lands; and 

(4) Improve the expertise and 

technical abilities of Indian tribes and 

their members by increasing the 

educational and training opportunities 

available to Indian people and 

communities in the practical, technical, 

and professional aspects of agricultural 

and land management. 

§ 161.3 What is the purpose of this part? 

The purpose of this part is to describe 

the goals and objectives of grazing 

management on the Navajo Partitioned 

Lands: 

(a) To respect and recognize the 

importance that livestock and land have 

in sustaining Navajo tradition and 

culture. 

(b) Provide resources to rehabilitate 

range resources in the preservation of 

forage, soil, and water on the Navajo 

Partitioned Lands; 

(c) Monitor the recovery of those 

resources where they have deteriorated; 

(d) Protect, conserve, utilize, and 

maintain the highest productive 

potential on the Navajo Partitioned 

Lands through the application of sound 

conservation practices and techniques. 

These practices and techniques will be 

applied to planning, development, 

inventorying, classification, and 

management of agricultural resources; 

(e) Increase production and expand 

the diversity and availability of 

agricultural products for subsistence, 

income, and employment of Indians, 

through the development of agricultural 

resources on the Navajo Partitioned 

Lands; 

(f) Manage agricultural resources 

consistent with integrated resource 

management plans in order to protect 

and maintain other values such as 

wildlife, fisheries, cultural resources, 

recreation and to regulate water runoff 

and minimize soil erosion; 

(g) Enable the Navajo Nation to 

maximize the potential benefits 

available to its members from their 

lands by providing technical assistance, 

training, and education in conservation 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58891 

practices, management and economics 

of agribusiness, sources and use of 

credit and marketing of agricultural 

products, and other applicable subject 

areas; 

(h) Develop the Navajo Partitioned 

Lands to promote self-sustaining 

communities; and 

(i) Assist the Navajo Nation with 

permitting the Navajo Partitioned 

Lands, consistent with prudent 

management and conservation practices, 

and community goals as expressed in 

the tribal management plans and 

appropriate tribal ordinances. 

§ 161.4 To what lands does this part 

apply? 

The grazing regulations in this part 

apply to the Navajo Partitioned Lands 

within the boundaries of the Navajo 

Indian Reservation held in trust by the 

United States for the Navajo Nation. 

Contiguous areas outside of the Navajo 

Partitioned Lands may be included 

under this part for management 

purposes by BIA in consultation with 

the affected permittees and other 

affected land users, and with the 

concurrence of the Resources 

Committee. Other affected land users 

include those holding approved 

assignments, permits, leases, and rights 

of way for activities such as: home sites, 

farm plots, roads, utilities, businesses, 

and schools. 

§ 161.5 Can BIA waive the application of 

this part? 

Yes. If a provision of this part 

conflicts with the objectives of the 

agricultural resource management plan 

provided for in § 161.200, or with a 

tribal law, BIA may waive the 

application of this part unless the 

waiver would either: 

(a) Constitute a violation of a federal 

statute or judicial decision; or 

(b) Conflict with BIA’s general trust 

responsibility under federal law. 

§ 161.6 Are there any other restrictions on 

information given to BIA? 

Information that the BIA collects in 

connection with permits for NPL in 

sections 161.102, 161.206, 161.301, 

161.302, 161.304, 161.402, 161.500, 

161.502, 161.604, 161.606, 161.703, 

161.704, 161.708, 161.717, 161.800, 

161.801, and 161.802 have been 

reviewed and approved by the Office of 

Management and Budget. The OMB 

Control Number assigned is 1076–0162. 

Please note that a federal agency may 

not conduct or sponsor, and you are not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

Subpart B—Tribal Policies and Laws 

Pertaining to Permits 

§ 161.100 Do tribal laws apply to grazing 

permits? 

Navajo Nation laws generally apply to 

land under the jurisdiction of the 

Navajo Nation, except to the extent that 

those Navajo Nation laws are 

inconsistent with this part or other 

applicable federal law. This part may be 

superseded or modified by Navajo 

Nation laws with Secretarial approval, 

however, so long as: 

(a) The Navajo Nation laws are 

consistent with the enacting Navajo 

Nation’s governing documents; 

(b) The Navajo Nation has notified 

BIA of the superseding or modifying 

effect of the Navajo Nation laws; 

(c) The superseding or modifying of 

the regulation would not violate a 

federal statute or judicial decision, or 

conflict with the Secretary’s general 

trust responsibility under federal law; 

and 

(d) The superseding or modifying of 

the regulation applies only to Navajo 

Partitioned Lands. 

§ 161.101 How will tribal laws be enforced 

on the Navajo Partitioned Lands? 

(a) Unless prohibited by federal law, 

BIA will recognize and comply with 

tribal laws regulating activities on the 

Navajo Partitioned Lands, including 

tribal laws relating to land use, 

environmental protection, and historic 

or cultural preservation. 

(b) While the Navajo Nation is 

primarily responsible for enforcing 

tribal laws pertaining to the Navajo 

Partitioned Lands, BIA will: 

(1) Assist in the enforcement of 

Navajo Nation laws; 

(2) Provide notice of Navajo Nation 

laws to persons or entities undertaking 

activities on the Navajo Partitioned 

Lands; and 

(3) Require appropriate federal 

officials to appear in tribal forums when 

requested by the tribe, so long as the 

appearance would not: 

(i) Be inconsistent with the 

restrictions on employee testimony set 

forth at 43 CFR part 2, subpart E; 

(ii) Constitute a waiver of the 

sovereign immunity of the United 

States; or 

(iii) Authorize or result in a review of 

(BIA) actions by the tribal court. 

(c) Where the provisions in this 

subpart are inconsistent with a Navajo 

Nation law, but the provisions cannot be 

superseded or modified by the Navajo 

Nation laws under § 161.5, BIA may 

waive the provisions under part 1 of 25 

CFR, so long as the new waiver does not 

violate a federal statute or judicial 

decision or conflict with the Secretary’s 

trust responsibility under federal law. 

§ 161.102 What notifications are required 

that tribal laws apply to grazing permits on 

the Navajo Partitioned Lands? 

(a) The Navajo Nation must provide 

BIA with an official copy of any tribal 

law or tribal policy that relates to this 

part. The Navajo Nation must notify BIA 

of the content and effective dates of 

tribal laws. 

(b) BIA will then notify affected 

permittees of the effect of the Navajo 

Nation law on their grazing permits. BIA 

will: 

(1) Provide individual written notice; 

or 

(2) Post public notice. This notice will 

be posted at the tribal community 

building, U.S. Post Office, announced 

on local radio station, and/or published 

in the local newspaper nearest to the 

permitted Navajo Partitioned Lands 

where activities are occurring. 

Subpart C—General Provisions 

§ 161.200 Is an Indian agricultural 

resource management plan required? 

(a) Yes, Navajo Partitioned Lands 

must be managed in accordance with 

the goals and objectives in the 

agricultural resource management plan 

developed by the Navajo Nation, or by 

BIA in close consultation with the 

Navajo Nation, under the Agricultural 

Act. 

(b) The 10-year agricultural resource 

management and monitoring plan must 

be developed through public meetings 

and completed within 3 years of the 

initiation of the planning activity. The 

plan must be based on the public 

meeting records and existing survey 

documents, reports, and other research 

from Federal agencies, tribal community 

colleges, and land grant universities. 

When completed, the plan must: 

(1) Determine available agricultural 

resources; 

(2) Identify specific tribal agricultural 

resource goals and objectives; 

(3) Establish management objectives 

for the resources; 

(4) Define critical values of the tribe 

and its members and provide identified 

resource management objectives; and 

(5) Identify actions to be taken to 

reach established objectives. 

(c) Where the provisions in this 

subpart are inconsistent with the Navajo 

Nation’s agricultural resource 

management plan, the Secretary may 

waive the provisions under part 1 of this 

title, so long as the waiver does not 

violate a federal statute or judicial 

decision or conflict with the Secretary’s 

trust responsibility under federal law. 

58892 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

§ 161.201 Is environmental compliance 

required? 

Actions taken by BIA under this part 

must comply with the National 

Environmental Policy Act of 1969, 42 

U.S.C. 4321 et seq., applicable 

provisions of the Council on 

Environmental Quality, 40 CFR part 

1500, and applicable tribal laws and 

provisions of the Navajo Nation 

Environmental Policy Act CAP–47–95, 

where the tribal laws and provisions do 

not violate a federal or judicial decision 

or conflict with the Secretary’s trust 

responsibility under federal law. 

§ 161.202 How are range units 

established? 

(a) BIA, with the concurrence of the 

Navajo Nation, will establish range units 

on the Navajo Partitioned Lands 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 concentration, 

problem areas, historical land use 

patterns, chapter boundaries, special 

land uses and comprehensive land use 

planning will be considered in the 

determination of range unit boundaries. 

(b) BIA may modify range unit 

boundaries with the concurrence of the 

Navajo Nation. This may include small 

and/or isolated portions of Navajo 

Partitioned Lands contiguous to Navajo 

tribal lands in order to develop more 

efficient land management. 

§ 161.203 Are range management plans 

required? 

Yes. BIA will: 

(a) Consult with the Navajo Nation in 

planning conservation practices, 

including grazing control and range 

restoration activities for the Navajo 

Partitioned Lands. 

(b) Develop range management plans 

with the concurrence of the Navajo 

Nation. 

(c) Approve the range management 

plans, after concurrence with the Navajo 

Nation, and the implementation of the 

plan may begin immediately. The plan 

will address, but is not limited to, the 

following issues: 

(1) Goals for improving vegetative 

productivity and diversity; 

(2) Stocking rates; 

(3) Grazing schedules; 

(4) Wildlife management; 

(5) Needs assessment for range and 

livestock improvements; 

(6) Schedule for operation and 

maintenance of existing range 

improvements and development for 

cooperative funded projects; 

(7) Cooperation in the implementation 

of range studies; 

(8) Control of livestock diseases and 

parasites; 

(9) Fencing or other structures 

necessary to implement any of the other 

provisions in the range management 

plan; 

(10) Special land uses; and 

(11) Water development and 

management. 

§ 161.204 How are carrying capacities and 

stocking rates established? 

(a) BIA, with the concurrence of the 

Navajo Nation, will prescribe, review 

and adjust the carrying capacity of each 

range unit by determining the number of 

livestock, and/or wildlife, that can be 

grazed on the Navajo Partitioned Lands 

without inducing damage to vegetation 

or related resources on each range unit 

and the season or seasons of use to 

achieve the objectives of the agricultural 

resource management plan and range 

unit management plan. 

(b) BIA, with the concurrence of the 

Navajo Nation, will establish the 

stocking rate of each range or 

management unit. The stocking rate will 

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) BIA will review the carrying 

capacity of the grazing units on a 

continuing basis and, in consultation 

with the Grazing Committee and 

affected permittees, adjust the stocking 

rate for each range or management unit 

as conditions warrant. 

(d) Any adjustments in stocking rates 

will be applied equally to each 

permittee within the management unit 

requiring adjustment. 

§ 161.205 How are range improvements 

treated? 

(a) Improvements placed on the 

Navajo Partitioned Lands will be 

considered affixed to the land unless 

specifically exempted in the permit. No 

improvement may be constructed or 

removed from Navajo Partitioned Lands 

without the written consent of BIA and 

the Navajo Nation. 

(b) Before undertaking an 

improvement, BIA, Navajo Nation and 

permittee will negotiate who will 

complete and maintain improvements. 

The improvement agreement will be 

reflected in the permit. 

§ 161.206 What must a permittee do to 

protect livestock from exposure to disease? 

In accordance with applicable law, 

permittees must: 

(a) Vaccinate livestock; 

(b) Treat all livestock exposed to or 

infected with contagious or infectious 

diseases; and 

(c) Restrict the movement of exposed 

or infected livestock. 

§ 161. 207 What livestock are authorized to 

graze? 

The following livestock are 

authorized to graze on the Navajo 

Partitioned Lands: horses, cattle, sheep, 

goats, mules, burros, donkeys, and 

llamas. 

Subpart D—Permit Requirements 

§ 161.300 When is a permit needed to 

authorize grazing use? 

Unless otherwise provided for in this 

part, any person or legal entity, 

including an independent legal entity 

owned and operated by the Navajo 

Nation, must obtain a permit under this 

part before using Navajo Partitioned 

Land for grazing purposes. 

§ 161.301 What will a grazing permit 

contain? 

(a) All grazing permits will contain 

the following provisions: 

(1) Name of permit holder; 

(2) Range management plan 

requirements; 

(3) Applicable stocking rate; 

(4) Range unit number and 

description of the permitted area; 

(5) Animal identification 

requirements (i.e., brand, microchip, 

freeze brand, earmark, tattoo, etc.); 

(6) Term of permit (including 

beginning and ending dates of the term 

allowed, as well as an option to renew, 

or extend); 

(7) A provision stating that the 

permittee agrees that he or she will not 

use, cause, or allow to be used any part 

of the permitted area for any unlawful 

conduct or purpose; 

(8) A provision stating that the permit 

authorizes no other privilege than 

grazing use; 

(9) A provision stating that no person 

is allowed to hold a grazing permit in 

more than one range unit of the Navajo 

Partitioned Lands, unless the customary 

use area extends beyond the range unit 

boundary; 

(10) A provision reserving a right of 

entry by BIA and the Navajo Nation for 

range survey, inventory and inspection 

or compliance purposes; 

(11) A provision prohibiting the 

creation of a nuisance, any illegal 

activity, and negligent use or waste of 

resources; 

(12) A provision stating how trespass 

proceeds are to be distributed; 

(13) A provision stating whether 

mediation will be used in the event of 

a permit violation; and 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58893 

(14) A provision stating that the 

permit cannot be subdivided once it has 

been issued. 

(b) Grazing permits will contain any 

other provision that in the discretion of 

BIA with the concurrence of the Navajo 

Nation is necessary to protect the land 

and/or resources. 

(c) Grazing permits containing any 

special land use authorized under 

§ 161.503 of this part must be included 

on the permit. 

§ 161.302 What restrictions are placed on 

grazing permits? 

Only a grazing permit issued under 

this part authorizes the grazing of 

livestock within the Navajo Partitioned 

Lands. Grazing permits are subject to 

the following restrictions: 

(a) Grazing permits should not be 

issued for less than 2 animal units (10 

sheep units) or exceed 70 animal units 

(350 sheep units). However, all grazing 

permits issued before the adoption of 

this regulation will be honored and 

reissued with an adjusted stocking rate 

if the permittee meets the eligibility and 

priority criteria found in § 161.400 of 

this part, and only if the carrying 

capacity and stocking rate as 

determined under §§ 161.204 and 

161.403 allows. 

(b) A grazing permit will be issued in 

the name of one individual. 

(c) Only two horses will be permitted 

on a grazing permit. 

(d) Grazing permits may contain 

additional conditions authorized by 

Federal law or Navajo Nation law. 

(e) A state/tribal brand only identifies 

the owner of the livestock, but does not 

authorize the grazing of any livestock 

within the Navajo Partitioned Lands. 

(f) A permit cannot be subdivided 

once it has been issued. 

§ 161.303 How long is a permit valid? 

After its initial issuance, each grazing 

permit is valid for one year beginning 

on the following January 1. All permits 

will be automatically renewed annually 

if the permittee is in compliance with 

all applicable laws including tallies and 

permit requirements. 

§ 161.304 Must a permit be recorded? 

A permit must be recorded by BIA 

following approval under this subpart. 

§ 161.305 When is a decision by BIA 

regarding a permit effective? 

BIA approval of a permit will be 

effective immediately upon signature, 

notwithstanding any appeal, which may 

be filed under part 2 of this title. Copies 

of the approved permit will be provided 

to the permittee and made available to 

the Navajo Nation upon request. 

§ 161.306 When are permits effective? 

Unless otherwise provided in the 

permit, a permit will be effective on the 

date on which BIA approves the permit. 

§ 161.307 When may a permittee 

commence grazing on Navajo Partitioned 

Land? 

The permittee may graze on Navajo 

Partitioned Land on the date specified 

in the permit as the beginning date of 

the term, but not before BIA approves 

the permit. 

§ 161.308 Must a permittee comply with 

standards of conduct if granted a permit? 

Yes. Permittees are expected to: 

(a) Conduct grazing operations in 

accordance with the principles of 

sustained yield management, 

agricultural resource management 

planning, sound conservation practices, 

and other community goals as expressed 

in Navajo Nation laws, agricultural 

resource management plans, and similar 

sources. 

(b) Comply with all applicable laws, 

ordinances, rules, provisions, and other 

legal requirements. Permittee must also 

pay all applicable penalties that may be 

assessed for non-compliance. 

(c) Fulfill all financial permit 

obligations owed to the Navajo Nation 

and the United States. 

(d) Conduct only those activities 

authorized by the permit. 

Subpart E—Reissuance of Grazing 

Permits 

§ 161.400 What are the criteria for 

reissuing grazing permits? 

(a) The Navajo Nation may prescribe 

eligibility requirements for grazing 

allocations within 180 days following 

the effective date of this part. BIA will 

prescribe the eligibility requirements 

after expiration of the 180-day period if 

the Navajo Nation does not prescribe 

eligibility requirements, or if 

satisfactory action is not taken by the 

Navajo Nation. 

(b) With the written concurrence of 

the Navajo Nation, BIA will prescribe 

the following eligibility requirements, 

where only those applicants who meet 

the following criteria are eligible to 

receive permits to graze livestock: 

(1) Those who had grazing permits on 

Navajo Partitioned Lands under 25 CFR 

part 167 (formerly part 152), and whose 

permits were canceled on October 14, 

1973; 

(2) Those who are listed in the 1974 

and 1975 Former Joint Use Area 

enumeration; 

(3) Those who are current residents 

on Navajo Partitioned Lands; and 

(4) Those who have a customary use 

area on Navajo Partitioned Lands. 

(c) Permits re-issued to applicants 

under this section may be granted by 

BIA based on the following priority 

criteria: 

(1) The first priority will go to 

individuals currently the age of 65 or 

older; and 

(2) The second priority will go to 

individuals under the age of 65. 

(d) Upon the recommendation of the 

NPL District Grazing Committee and 

Resources Committee, BIA or Navajo 

Nation will have authority to waive one 

of the eligibility or priority criteria. 

§ 161.401 Will new permits be granted 

after the initial reissuance of permits? 

(a) Following the initial reissuance of 

permits under § 161.400, the Navajo 

Nation can grant new permits, subject to 

BIA approval, if: 

(1) Additional permits become 

available; and 

(2) The carrying capacity and stocking 

rates as determined under §§ 161.204 

and 161.403 allow. 

(b) The Navajo Nation must inform 

BIA if it grants any permits under 

paragraph (a) of this section. 

§ 161.402 What are the procedures for 

reissuing permits? 

BIA, with the concurrence of the 

Navajo Nation, will reissue grazing 

permits only to individuals that meet 

the eligibility requirements in § 161.400. 

Responsibilities for reissuance of 

grazing permits are as follows: 

(a) BIA will develop a complete list 

consisting of all former permittees 

whose permits were cancelled and the 

number of animal units previously 

authorized in prior grazing permits. 

This list will be provided to the Grazing 

Committee and Resources Committee 

for their review. BIA will also provide 

the Grazing Committee and Resources 

Committee with the current carrying 

capacity and stocking rate for each range 

unit within the Navajo Partitioned 

Lands, as determined under § 161.204. 

(b) Within 90 days of receipt, the 

Grazing Committee will review the list 

developed under § 161.402(a), and make 

recommendations to the Resources 

Committee for the granting of grazing 

permits according to the eligibility and 

priority criteria in § 161.400. 

(c) If the Grazing Committee fails to 

make its recommendation to the 

Resources Committee within 90 days 

after receiving the list of potential 

permittees, BIA will submit its 

recommendations to the Resources 

Committee. 

(d) The Resources Committee will 

review and concur with the list of 

proposed permit grantees, and then 

forward a final list to BIA for the 

58894 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

reissuance of grazing permits. If the 

Resources Committee does not concur, 

the procedures outlined in § 161.800 

will govern. 

(e) The final determination list of 

eligible permittees will be published. 

Permits will not be issued sooner than 

90 days following publication of the 

final list. 

§ 161.403 How are grazing permits 

allocated within each range unit? 

(a) Initial allocation of the number of 

animal units authorized in each grazing 

permit will be determined by 

considering the number of animal units 

previously authorized in prior grazing 

permits and the current authorized 

stocking rate on a given range unit. 

(b) Grazing permit allocations may 

vary from range unit to range unit 

depending on the stocking rate of each 

unit, the range management plan, and 

the number of eligible grazing 

permittees in the unit. 

Subpart F—Modifying A Permit 

§ 161.500 May permits be transferred, 

assigned or modified? 

(a) Grazing permits may be 

transferred, assigned, or modified only 

as provided in this section. Permits may 

only be transferred or assigned as a 

single permit under Navajo Nation 

procedures and with the approval of 

BIA. Permittees must reside within the 

same range unit as the original 

permittee. 

(b) Permits may be transferred, 

assigned, or modified with the written 

consent of the permittee, District 

Grazing Committee and/or Resources 

Committee and approved by BIA. 

(c) BIA must record each transfer, 

assignment, or modification that it 

approves under a permit. 

§ 161.501 When will a permit modification 

be effective? 

BIA approval of a transfer, 

assignment, or modification under a 

permit will be effective immediately, 

notwithstanding any appeal, which may 

be filed under part 2 of this title. Copies 

of approved documents will be 

provided to the permittee and made 

available to the Navajo Nation upon 

request. 

§ 161.502 Will a special land use require 

permit modification? 

Yes. When the Navajo Nation and BIA 

approve a special land use, the grazing 

permit will be modified to reflect the 

change in available forage. If a special 

land use is inconsistent with grazing 

activities authorized in the permit, the 

special land use area will be withdrawn 

from the permit, and grazing cannot take 

place on that part of the range unit. 

Subpart G—Permit Violations 

§ 161.600 What permit violations are 

addressed by this subpart? 

This subpart addresses violations of 

permit provisions other than trespass. 

Trespass is addressed under subpart H. 

§ 161.601 How will BIA monitor permit 

compliance? 

Unless the permit provides otherwise, 

BIA and/or Navajo Nation may enter the 

range unit at any reasonable time, 

without prior notice, to protect the 

interests of the Navajo Nation and 

ensure that the permittee is in 

compliance with the operating 

requirements of the permit. 

§ 161.602 Will my permit be canceled for 

non-use? 

(a) If a grazing permit is not used by 

the permittee for a 2-year period, BIA 

may cancel the permit upon the 

recommendation of the Grazing 

Committee and with the concurrence of 

the Resources Committee under 

§ 161.606(c). Non-use consists of, but is 

not limited to, absence of livestock on 

the range unit, and/or abandonment of 

a permittee’s grazing permit. 

(b) Unused grazing permits or 

portions of grazing permits that are set 

aside for range recovery will not be 

cancelled for non-use. 

§ 161.603 Can mediation be used in the 

event of a permit violation or dispute? 

A permit may provide for permit 

disputes or violations to be resolved 

with the District Grazing Committee 

through mediation. 

(a) The District Grazing Committee 

will conduct the mediation before the 

Navajo Nation’s appropriate hearing 

body, before BIA invokes any 

cancellation remedies. 

(b) Conducting the mediation may 

substitute for permit cancellation. 

However, BIA retains the authority to 

cancel the permit under § 161.606. 

(c) The Navajo Nation’s appropriate 

hearing body decision will be final, 

unless it is appealed to the Navajo 

Nation Supreme Court on a question of 

law. BIA will defer to any ongoing 

proceedings, as appropriate, in deciding 

whether to exercise any of the remedies 

available to BIA under § 161.606. 

§ 161.604 What happens if a permit 

violation occurs? 

(a) If the Resources Committee 

notifies BIA that a specific permit 

violation has occurred, BIA will initiate 

an appropriate investigation within 5 

business days of that notification. 

(b) Unless otherwise provided under 

tribal law, when BIA has reason to 

believe that a permit violation has 

occurred, BIA or the authorized tribal 

representative will provide written 

notice to the permittee within 5 

business days. 

§ 161.605 What will a written notice of a 

permit violation contain? 

The written notice of a permit 

violation will provide the permittee 

with 10 days from the receipt of the 

written notice to: 

(a) Cure the permit violation and 

notify BIA that the violation is cured; 

(b) Explain why BIA should not 

cancel the permit; 

(c) Request in writing additional time 

to complete corrective actions. If 

additional time is granted, BIA may 

require that certain actions be taken 

immediately; or 

(d) Request mediation under 

§ 161.603. 

§ 161.606 What will BIA do if the permittee 

doesn’t cure a violation on time? 

(a) If the permittee does not cure a 

violation within the required time 

period, or if the violation is not referred 

to District Grazing Committee for 

mediation, BIA will consult with the 

Navajo Nation, as appropriate, and 

determine whether: 

(1) The permit may be canceled by 

BIA under paragraph (c) of this section 

and §§ 161.607 through 161.608; 

(2) BIA may invoke any other 

remedies available to BIA under the 

permit; 

(3) The Navajo Nation may invoke any 

remedies available to them under the 

permit; or 

(4) The permittee may be granted 

additional time in which to cure the 

violation. 

(b) If BIA grants a permittee a time 

extension to cure a violation, the 

permittee must proceed diligently to 

complete the necessary corrective 

actions within a reasonable or specified 

time from the date on which the 

extension is granted. 

(c) If BIA cancels the permit, BIA will 

send the permittee and the District 

Grazing Committee a written notice of 

cancellation within 5 business days of 

the decision. BIA will also provide 

actual or constructive notice of the 

cancellation to the Navajo Nation, as 

appropriate. The written notice of 

cancellation will: 

(1) Explain the grounds for 

cancellation; 

(2) Notify the permittee of the amount 

of any unpaid fees and other financial 

obligations due under the permit; 

(3) Notify the permittee of his or her 

right to appeal under 25 CFR part 2 of 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58895 

this title, as modified by § 161.607, 

including the amount of any appeal 

bond that must be posted with an 

appeal of the cancellation decision; and 

(4) Order the permittee to cease 

grazing livestock on the next 

anniversary date of the grazing permit or 

180 days following the receipt of the 

written notice of cancellation, 

whichever is sooner. 

§ 161.607 What appeal bond provisions 

apply to permit cancellation decisions? 

(a) The appeal bond provisions in 

§ 2.5 of part 2 of this title will not apply 

to appeals from permit cancellation 

decision. Instead, when BIA decides to 

cancel a permit, BIA may require the 

permittee to post an appeal bond with 

an appeal of the cancellation decision. 

The requirement to post an appeal bond 

will apply in addition to all of the other 

requirements in part 2 of this title. 

(b) An appeal bond should be set in 

an amount necessary to protect the 

Navajo Nation against financial losses 

that will likely result from the delay 

caused by an appeal. Appeal bond 

requirements will not be separately 

appealable, but may be contested during 

the appeal of the permit cancellation 

decision. 

§ 161.608 When will a permit cancellation 

be effective? 

A cancellation decision involving a 

permit will not be effective for 30 days 

after the permittee receives a written 

notice of cancellation from BIA. The 

cancellation decision will remain 

ineffective if the permittee files an 

appeal under § 161.607 and part 2 of 

this title, unless the decision is made 

immediately effective under part 2. 

While a cancellation decision is 

ineffective, the permittee must continue 

to comply with the other terms of the 

permit. If an appeal is not filed in 

accordance with § 161.607 and part 2 of 

this title, the cancellation decision will 

be effective on the 31st day after the 

permittee receives the written notice of 

cancellation from BIA. 

§ 161.609 Can BIA take emergency action 

if the rangeland is threatened? 

Yes, if a permittee or any other party 

causes or threatens to cause immediate, 

significant and irreparable harm to the 

Navajo Nation land during the term of 

a permit, BIA will take appropriate 

emergency action. Emergency action 

may include trespass proceedings under 

subpart H, or judicial action seeking 

immediate cessation of the activity 

resulting in or threatening harm. 

Reasonable efforts will be made to 

notify the Navajo Nation, either before 

or after the emergency action is taken. 

§ 161.610 What will BIA do if livestock is 

not removed when a permit expires or is 

cancelled? 

If the livestock is not removed after 

the expiration or cancellation of a 

permit, BIA will treat the unauthorized 

use as a trespass. BIA may remove the 

livestock on behalf of the Navajo Nation, 

and pursue any additional remedies 

available under applicable law, 

including the assessment of civil 

penalties and costs under subpart H. 

Subpart H—Trespass 

§ 161.700 What is trespass? 

Under this part, trespass is any 

unauthorized use of, or action on, 

Navajo partitioned grazing lands. 

§ 161.701 What is BIA’s trespass policy? 

BIA will: 

(a) Investigate accidental, willful, 

and/or incidental trespass on Navajo 

Partitioned Lands; 

(b) Respond to alleged trespass in a 

prompt, efficient manner; 

(c) Assess trespass penalties for the 

value of products used or removed, cost 

of damage to the Navajo Partitioned 

Lands, and enforcement costs incurred 

as a consequence of the trespass; and 

(d) Ensure, to the extent possible, that 

damage to Navajo Partitioned Lands 

resulting from trespass is rehabilitated 

and stabilized at the expense of the 

trespasser. 

§ 161.702 Who will enforce this subpart? 

(a) BIA enforces the provisions of this 

subpart. If the Navajo Nation adopts the 

provisions of this subpart, the Navajo 

Nation will have concurrent jurisdiction 

to enforce this subpart. Additionally, if 

the Navajo Nation so requests, BIA will 

defer to tribal prosecution of trespass on 

Navajo Partitioned Lands. 

(b) Nothing in this subpart will be 

construed to diminish the sovereign 

authority of the Navajo Nation with 

respect to trespass. 

Notification 

§ 161.703 How are trespassers notified of 

a trespass determination? 

(a) Unless otherwise provided under 

tribal law, when BIA has reason to 

believe that a trespass on Navajo 

Partitioned Lands has occurred, BIA or 

the authorized tribal representative will 

provide written notice within 5 business 

days to: 

(1) The alleged trespasser; 

(2) The possessor of trespass property; 

and 

(3) Any known lien holder. 

(b) The written notice under 

paragraph (a) of this section will include 

the following: 

(1) The basis for the trespass 

determination; 

(2) A legal description of where the 

trespass occurred; 

(3) A verification of ownership of 

unauthorized property (e.g., brands in 

the State Brand Book for cases of 

livestock trespass, if applicable); 

(4) Corrective actions that must be 

taken; 

(5) Time frames for taking the 

corrective actions; 

(6) Potential consequences and 

penalties for failure to take corrective 

action; and 

(7) A statement that unauthorized 

livestock or other property may not be 

removed or disposed of unless 

authorized by BIA under paragraph 

(b)(4) of this section. 

(c) If BIA determines that the alleged 

trespasser or possessor of trespass 

property is unknown or refuses delivery 

of the written notice, a public trespass 

notice will be posted at the tribal 

community building, U.S. Post Office, 

and published in the local newspaper 

nearest to the Indian agricultural lands 

where the trespass is occurring. 

(d) Trespass notices under this 

subpart are not subject to appeal under 

part 2 of this title. 

§ 161.704 What can a permittee do if they 

receive a trespass notice? 

The trespasser will within the time 

frame specified in the notice: 

(a) Comply with the ordered 

corrective actions; or 

(b) Contact BIA in writing to explain 

why the trespass notice is in error. The 

trespasser may contact BIA by telephone 

but any explanation of trespass must be 

provided in writing. If BIA determines 

that a trespass notice was issued in 

error, the notice will be withdrawn. 

§ 161.705 How long will a written trespass 

notice remain in effect? 

A written trespass notice will remain 

in effect for the same action identified 

in that written notice for a period of one 

year from the date of receipt of the 

written notice by the trespasser. 

Actions 

§ 161.706 What actions does BIA take 

against trespassers? 

If the trespasser fails to take the 

corrective action as specified, BIA may 

take one or more of the following 

actions, as appropriate: 

(a) Seize, impound, sell or dispose of 

unauthorized livestock or other property 

involved in the trespass. BIA may keep 

the property seized for use as evidence. 

(b) Assess penalties, damages, and 

costs under § 161.712. 

58896 Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 

§ 161.707 When will BIA impound 

unauthorized livestock or other property? 

BIA will impound unauthorized 

livestock or other property under the 

following conditions: 

(a) Where there is imminent danger of 

severe injury to growing or harvestable 

crop or destruction of the range forage. 

(b) When the known owner or the 

owner’s representative of the 

unauthorized livestock or other property 

refuses to accept delivery of a written 

notice of trespass and the unauthorized 

livestock or other property are not 

removed within the period prescribed in 

the written notice. 

(c) Any time after 5 days of providing 

notice of impoundment if the trespasser 

failed to correct the trespass. 

§ 161.708 How are trespassers notified of 

impoundments? 

(a) If the trespass is not corrected in 

the time specified in the initial trespass 

notice, BIA will send written notice of 

its intent to impound unauthorized 

livestock or other property to: 

(1) The unauthorized livestock or 

property owner or representative; and 

(2) Any known lien holder of the 

unauthorized livestock or other 

property. 

(b) If BIA determines that the owner 

of the unauthorized livestock or other 

property or the owner’s representative is 

unknown or refuses delivery of the 

written notice, a public notice of intent 

to impound will be posted at the tribal 

community building, U.S. Post Office, 

and published in the local newspaper 

nearest to the Indian agricultural lands 

where the trespass is occurring. 

(c) After BIA has given notice as 

described in § 161.707, unauthorized 

livestock or other property will be 

impounded without any further notice. 

§ 161.709 What happens after 

unauthorized livestock or other property are 

impounded? 

Following the impoundment of 

unauthorized livestock or other 

property, BIA will provide notice that 

the impounded property will be sold as 

follows: 

(a) BIA will provide written notice of 

the sale to the owner, the owner’s 

representative, and any known lien 

holder. The written notice must include 

the procedure by which the impounded 

property may be redeemed before the 

sale. 

(b) BIA will provide public notice of 

sale of impounded property by posting 

at the tribal community building, U.S. 

Post Office, and publishing in the local 

newspaper nearest to the Indian 

agricultural lands where the trespass is 

occurring. The public notice will 

include a description of the impounded 

property, and the date, time, and place 

of the public sale. The sale date must be 

at least 5 days after the publication and 

posting of notice. 

§ 161.710 How can impounded livestock or 

other property be redeemed? 

Impounded livestock or other 

property may be redeemed by 

submitting proof of ownership and 

paying all penalties, damages, and costs 

under § 161.712 and completing all 

corrective actions identified by BIA 

under § 161.704. 

§ 161.711 How will BIA sell impounded 

livestock or other property? 

(a) Unless the owner or known lien 

holder of the impounded livestock or 

other property redeems the property 

before the time set by the sale, by 

submitting proof of ownership and 

settling all obligations under §§ 161.704 

and 161.712, the property will be sold 

by public sale to the highest bidder. 

(b) If a satisfactory bid is not received, 

the livestock or property may be reoffered for sale, returned to the owner, 

condemned and destroyed, or otherwise 

disposed of. 

(c) BIA will give the purchaser a bill 

of sale or other written receipt 

evidencing the sale. 

Penalties, Damages, and Costs 

§ 161.712 What are the penalties, 

damages, and costs payable by 

trespassers? 

Trespassers on Navajo Partitioned 

Lands must pay the following penalties 

and costs: 

(a) Collection of the value of the 

products illegally used or removed plus 

a penalty of double their values; 

(b) Costs associated with any damage 

to Navajo Partitioned Lands and/or 

property; 

(c) The costs associated with 

enforcement of the provisions, 

including field examination and survey, 

damage appraisal, investigation 

assistance and reports, witness 

expenses, demand letters, court costs, 

and attorney fees; 

(d) Expenses incurred in gathering, 

impounding, caring for, and disposal of 

livestock in cases which necessitate 

impoundment under § 161.707; and 

(e) All other penalties authorized by 

law. 

§ 161.713 How will BIA determine the 

amount of damages to Navajo Partitioned 

Lands? 

(a) BIA will determine the damages by 

considering the costs of rehabilitation 

and re-vegetation, loss of future 

revenue, loss of profits, loss of 

productivity, loss of market value, 

damage to other resources, and other 

factors. 

(b) BIA will determine the value of 

forage or crops consumed or destroyed 

based upon the average rate received per 

month for comparable property or 

grazing privileges, or the estimated 

commercial value or replacement costs 

of the products or property. 

(c) BIA will determine the value of the 

products or property illegally used or 

removed based upon a valuation of 

similar products or property. 

§ 161.714 How will BIA determine the 

costs associated with enforcement of the 

trespass? 

Costs of enforcement may include 

detection and all actions taken by us 

through prosecution and collection of 

damages. This includes field 

examination and survey, damage 

appraisal, investigation assistance and 

report preparation, witness expenses, 

demand letters, court costs, attorney 

fees, and other costs. 

§ 161.715 What will BIA do if a trespasser 

fails to pay penalties, damages and costs? 

This section applies if a trespasser 

fails to pay the assessed penalties, 

damages, and costs as directed. Unless 

otherwise provided by applicable 

Navajo Nation law, BIA will: 

(a) Refuse to issue the permittee a 

permit for any use of Navajo Partitioned 

Lands; and 

(b) Forward the case for appropriate 

legal action. 

§ 161.716 How are the proceeds from 

trespass distributed? 

Unless otherwise provided by Navajo 

Nation law: 

(a) BIA will treat any amounts 

recovered under § 161.712 as proceeds 

from the sale of agricultural property 

from the Navajo Partitioned Lands upon 

which the trespass occurred. 

(b) Proceeds recovered under 

§ 161.712 may be distributed to: 

(1) Repair damages of the Navajo 

Partitioned Lands and property; or 

(2) Reimburse the affected parties, 

including the permittee for loss due to 

the trespass, as negotiated and provided 

in the permit. 

(c) Reimburse for costs associated 

with the enforcement. 

(d) If any money is left over after the 

distribution of the proceeds described in 

paragraph (b) of this section, BIA will 

return it to the trespasser or, where the 

owner of the impounded property 

cannot be identified within 180 days, 

the net proceeds of the sale will be 

deposited into the appropriate Navajo 

Nation account or transferred to the 

Navajo Nation under applicable tribal 

law. 

Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations 58897 

§ 161.717 What happens if BIA does not 

collect enough money to satisfy the 

penalty? 

BIA will send written notice to the 

trespasser demanding immediate 

settlement and advising the trespasser 

that unless settlement is received within 

5 business days from the date of receipt, 

BIA will forward the case for 

appropriate legal action. BIA may send 

a copy of the notice to the Navajo 

Nation, permittee, and any known lien 

holders. 

Subpart I—Concurrence/Appeals/ 

Amendments 

§ 161.800 How does the Navajo Nation 

provide concurrence to BIA? 

(a) Actions taken by BIA under this 

part require concurrence of the Navajo 

Nation under section 640d–9(e)(1)(A) of 

the Settlement Act. 

(b) For any action requiring the 

concurrence of the Resources 

Committee, the following procedures 

will apply: 

(1) Unless a longer time is specified 

in a particular section, or unless BIA 

grants an extension of time, the 

Resources Committee will have 45 days 

to review and concur with the proposed 

action; 

(2) If the Resources Committee 

concurs in writing with all or part of 

BIA proposed action, the action or a 

portion of it may be immediately 

implemented; 

(3) If the Resources Committee does 

not concur with all or part of the 

proposed action within the time 

prescribed in paragraph (b)(1) of this 

section, BIA will submit to the 

Resources Committee a written 

declaration of non-concurrence. BIA 

will then notify the Resources 

Committee in writing of a formal 

hearing to be held not sooner than 30 

days from the date of the nonconcurrence declaration; 

(4) The formal hearing on nonconcurrence will permit the submission 

of written evidence and argument 

concerning the proposal. BIA will take 

minutes of the hearing. Following the 

hearing, BIA may amend, alter, or 

otherwise change the proposed action. 

If, following a hearing, BIA alters or 

amends portions of the proposed plan of 

action, BIA will submit the altered or 

amended portions of the plan to the 

Resources Committee for its 

concurrence; and 

(5) If the Resources Committee fails or 

refuses to give its concurrence to the 

proposal, BIA 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 under the Settlement 

Act and the Agricultural Act. 

§ 161.801 May decisions under this part be 

appealed? 

(a) Appeals of BIA decisions issued 

under this part may be taken in 

accordance with procedures in part 2 of 

25 CFR. 

(b) All appeals of decisions by the 

Grazing Committee and Resources 

Committee will be forwarded to the 

Navajo Nation’s Office of Hearings and 

Appeals. 

§ 161.802 How will the Navajo Nation 

recommend amendments to this part? 

The Resources Committee will have 

final authority on behalf of the Navajo 

Nation to approve amendments to the 

Navajo Partitioned Lands grazing 

provisions, upon the recommendation 

of the Grazing Committee and the 

Navajo-Hopi Land Commission, and the 

concurrence of BIA. 

[FR Doc. 05–20100 Filed 10–6–05; 8:45 am] 

BILLING CODE 4310–W7–P