[Federal Register Volume 70, Number 194 (Friday, October 7, 2005)]
[Rules and Regulations]
[Pages 58882-58897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20100]



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Part V





Department of the Interior





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Bureau of Indian Affairs



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25 CFR Part 161



Navajo Partitioned Lands Grazing Permits; Final Rule

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

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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.

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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.

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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

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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

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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 non-Navajos 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 non-NPL 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-
by-case 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

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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 foreign-based 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

[[Page 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 Navajo-Hopi 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.

[[Page 58888]]



                                         Table of Burden for 25 CFR 161
----------------------------------------------------------------------------------------------------------------
                                                                               Hourly burden
              CFR section                    Number of     Number of annual    per response       Total annual
                                            respondents        responses          (hours)        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
----------------------------------------------------------------------------------------------------------------
                                          Salary: $5.00 x                                       Salary: $18.52 x
                                           total hourly     Federal burden     Total Federal      total hourly
              CFR section                 burden = total     per response      annual burden     burden = total
                                           hourly burden        (hours)            hours         Federal burden
                                               cost                                                   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.

0
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?

[[Page 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


Sec.  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 third-party 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

[[Page 58890]]

(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.


Sec.  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.


Sec.  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

[[Page 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.


Sec.  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.


Sec.  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 Sec.  
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.


Sec.  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


Sec.  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.


Sec.  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 Sec.  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.


Sec.  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


Sec.  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.

[[Page 58892]]

Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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


Sec.  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.


Sec.  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

[[Page 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 Sec.  161.503 of this part must be included on the permit.


Sec.  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 
Sec.  161.400 of this part, and only if the carrying capacity and 
stocking rate as determined under Sec. Sec.  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.


Sec.  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.


Sec.  161.304  Must a permit be recorded?

    A permit must be recorded by BIA following approval under this 
subpart.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  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


Sec.  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.


Sec.  161.401  Will new permits be granted after the initial reissuance 
of permits?

    (a) Following the initial reissuance of permits under Sec.  
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 
Sec. Sec.  161.204 and 161.403 allow.
    (b) The Navajo Nation must inform BIA if it grants any permits 
under paragraph (a) of this section.


Sec.  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 Sec.  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 
Sec.  161.204.
    (b) Within 90 days of receipt, the Grazing Committee will review 
the list developed under Sec.  161.402(a), and make recommendations to 
the Resources Committee for the granting of grazing permits according 
to the eligibility and priority criteria in Sec.  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

[[Page 58894]]

reissuance of grazing permits. If the Resources Committee does not 
concur, the procedures outlined in Sec.  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.


Sec.  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


Sec.  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.


Sec.  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.


Sec.  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


Sec.  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.


Sec.  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.


Sec.  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 Sec.  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.


Sec.  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 Sec.  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 Sec.  161.606.


Sec.  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.


Sec.  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 Sec.  161.603.


Sec.  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 Sec. Sec.  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

[[Page 58895]]

this title, as modified by Sec.  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.


Sec.  161.607  What appeal bond provisions apply to permit cancellation 
decisions?

    (a) The appeal bond provisions in Sec.  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.


Sec.  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 Sec.  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 Sec.  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.


Sec.  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.


Sec.  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


Sec.  161.700  What is trespass?

    Under this part, trespass is any unauthorized use of, or action on, 
Navajo partitioned grazing lands.


Sec.  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.


Sec.  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


Sec.  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.


Sec.  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.


Sec.  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


Sec.  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 Sec.  161.712.

[[Page 58896]]

Sec.  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.


Sec.  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 Sec.  161.707, 
unauthorized livestock or other property will be impounded without any 
further notice.


Sec.  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.


Sec.  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 
Sec.  161.712 and completing all corrective actions identified by BIA 
under Sec.  161.704.


Sec.  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 Sec. Sec.  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 re-offered 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


Sec.  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 
Sec.  161.707; and
    (e) All other penalties authorized by law.


Sec.  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.


Sec.  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.


Sec.  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.


Sec.  161.716  How are the proceeds from trespass distributed?

    Unless otherwise provided by Navajo Nation law:
    (a) BIA will treat any amounts recovered under Sec.  161.712 as 
proceeds from the sale of agricultural property from the Navajo 
Partitioned Lands upon which the trespass occurred.
    (b) Proceeds recovered under Sec.  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.

[[Page 58897]]

Sec.  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


Sec.  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 non-concurrence declaration;
    (4) The formal hearing on non-concurrence 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.


Sec.  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.


Sec.  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