II 116th CONGRESS 2d Session S. 4288 IN THE SENATE OF THE UNITED STATES July 22, 2020 Mr. Tester introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To establish the Badger-Two Medicine Cultural Heritage Area in the State of Montana, and for other purposes.

1. Short title This Act may be cited as the Badger-Two Medicine Protection Act . 2. Definitions In this Act: (1) Cultural Heritage Area The term Cultural Heritage Area means the Badger-Two Medicine Cultural Heritage Area established by section 5(a). (2) Existing use The term existing use means a use that is occurring within the Cultural Heritage Area as of the date of enactment of this Act. (3) Management plan The term management plan means the management plan for the Cultural Heritage Area required by section 5(d)(1). (4) Map The term map means the map entitled Badger-Two Medicine Cultural Heritage Area Map and dated July 21, 2020. (5) Native knowledge The term Native knowledge has the meaning given the term in section 219.19 of title 36, Code of Federal Regulations (as in effect on the date of enactment of this Act). (6) New use (A) In general The term new use means— (i) a use that— (I) involves a surface disturbance; and (II) is not occurring within the Cultural Heritage Area as of the date of enactment of this Act; or (ii) an existing use that is being modified— (I) to create a surface disturbance; or (II) to significantly expand or alter impacts on the land, water, air, fish, wildlife, or cultural resources of the Cultural Heritage Area. (B) Exclusion The term new use does not include a use that is— (i) determined by the Secretary not to, individually or cumulatively, have a significant effect on the human environment; (ii) necessary to maintain a road, trail, structure, or facility within the Cultural Heritage Area in existence as of the date of enactment of this Act; or (iii) carried out to comply with the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.). (7) Secretary The term Secretary means the Secretary of Agriculture. (8) State The term State means the State of Montana. (9) Tribal Business Council The term Tribal Business Council means the Blackfeet Tribal Business Council. (10) Tribe The term Tribe means the Blackfeet Nation. 3. Findings Congress finds that— (1) the Badger-Two Medicine is sacred land, a living cultural landscape, a hunting ground, a refuge, a wildlife sanctuary, a place of refuge for wild nature, and an important part of both Tribal and non-Tribal community values; (2) the Badger-Two Medicine is a stronghold for wild nature, isolated from and unmarred by development, where natural processes continue to function and relatively uncommon plant and animal communities continue to exist; (3) the people of the Tribe have been present in the Badger-Two Medicine area for time immemorial, using the plant, mineral, and animal resources and landforms of that area for sustenance and cultural, medicinal, and ceremonial activities, purposes for which the people of the Tribe continue to use that area today; (4) a community of Tribal and non-Tribal people have used the Badger-Two Medicine for multiple generations for hunting, fishing, camping, horse­pack­ing, and wilderness solitude, purposes for which the community continues to use the area today; (5) the Badger-Two Medicine contains— (A) several important headwater streams of the Missouri River basin, which provide critical clean water for ecological, agricultural, and domestic purposes; and (B) abundant fish and wildlife, spectacular natural scenery, and outstanding recreational opportunities; (6) the Badger-Two Medicine provides important ecological connectivity to Glacier National Park, the Bob Marshall Wilderness Complex, the Blackfeet Indian Reservation, and other public lands; (7) through treaties and agreements with the Federal Government, the Tribe retains rights to conduct various activities within the Badger-Two Medicine region; and (8) the establishment of the Badger-Two Medicine Cultural Heritage Area is vital to the continuation and revitalization of the Blackfeet culture, while continuing to serve the heritage of the broader public as a place of recreation, traditional use, and sanctuary. 4. Purposes The purposes of this Act are— (1) to protect the cultural, ecological, scenic, and recreational resources of the Badger-Two Medicine area for the benefit, use, and enjoyment of present and future generations; (2) to permanently protect the cultural values, attributes, and integrity of the Badger-Two Medicine Traditional Cultural District; (3) to protect the ability of the Tribe— (A) to exercise their treaty rights; and (B) to enhance the opportunity for the Blackfeet people to continue to use the Badger-Two Medicine area, as they have since time immemorial; (4) to protect the ability of Tribal and non-Tribal people to use the Badger-Two Medicine area for traditional activities, including hunting, fishing, hiking, horsepacking, and camping, as they have for generations; (5) (A) to protect and enhance the ecological integrity of the Badger-Two Medicine, including fish and wildlife habitat; and (B) to ensure that the Badger-Two Medicine area continues to serve as an ecological corridor connecting adjacent lands; (6) to maintain the water quality and free-flowing character of the rivers and streams within the Badger-Two Medicine area; and (7) to establish a management framework for the Badger-Two Medicine area that recognizes— (A) the treaty rights of the Tribe; and (B) the historical and contemporary connection of the Tribe with the natural and cultural world of the area. 5. Badger-Two Medicine Cultural Heritage Area (a) Establishment Subject to valid existing rights, there is established the Badger-Two Medicine Cultural Heritage Area in the State. (b) Area included The Cultural Heritage Area shall consist of 127,447 acres of Federal land managed by the Forest Service, as generally depicted on the map. (c) Purposes The purposes of the Cultural Heritage Area are— (1) to preserve for the benefit and enjoyment of present and future generations the cultural, ecological, scenic, and recreational values of the Cultural Heritage Area; and (2) to enable the people of the Tribe to continue to carry out traditional cultural practices in the Cultural Heritage Area. (d) Management plan (1) In general Not later than 3 years after the date of enactment of this Act and in accordance with paragraph (2), the Secretary shall develop, as an amendment to the land and resource management plan for the Helena-Lewis and Clark National Forest, a comprehensive plan for the long-term protection and management of the Cultural Heritage Area. (2) Requirements In developing the management plan, the Secretary shall— (A) consult with— (i) appropriate State, Tribal, and local governmental entities; (ii) the Tribe; (iii) the Badger-Two Medicine Advisory Council established by section 7(a); and (iv) members of the public; (B) at the request of the Tribe, include the Tribe as a cooperating agency in the development of the management plan; (C) incorporate Native knowledge into the management plan to the maximum extent practicable; (D) include public education and interpretation regarding— (i) the cultural significance of the Badger-Two Medicine region to the Tribe; and (ii) traditional uses and place names within the region; and (E) provide for recreational opportunities to occur within the Cultural Heritage Area, including hiking, fishing, hunting, horseback riding, and camping. (3) Incorporation of existing plan In developing the management plan, to the extent consistent with this section, the Secretary may incorporate any provision of the land and resource management plan for the Helena-Lewis and Clark National Forest. (e) Management (1) In general The Secretary shall manage the Cultural Heritage Area— (A) in a manner that conserves, protects, and enhances the resources of the Cultural Heritage Area; and (B) in accordance with— (i) the laws (including regulations) and rules applicable to the National Forest System; (ii) this Act; and (iii) any other applicable laws (including regulations). (2) Uses The Secretary shall only allow such uses of the Cultural Heritage Area that the Secretary determines, in consultation with the Tribe, would further the purposes described in subsection (c). (f) Prohibitions Subject to valid existing rights, the following activities shall be prohibited on National Forest System land within the Cultural Heritage Area: (1) Construction of new or temporary roads, except temporary roads necessary to protect public health and safety. (2) The use of motorized or mechanized vehicles, except— (A) for administrative purposes authorized in relation to an existing permit, agreement, or lease; or (B) to respond to an emergency. (3) Commercial timber harvest. (4) Construction of permanent structures, except as necessary to meet minimum requirements for the administration of the Cultural Heritage Area (including pursuant to special use permits and leases). (g) Vegetation management Nothing in this section prevents the Secretary from conducting noncommercial vegetation management projects within the Cultural Heritage Area— (1) subject to— (A) such reasonable regulations, policies, and practices as the Secretary determines to be appropriate; and (B) all applicable laws (including regulations); and (2) in a manner consistent with the purposes described in subsection (c). (h) Grazing The Secretary shall permit grazing within the Cultural Heritage Area, if established on the date of enactment of this Act— (1) subject to— (A) such reasonable regulations, policies, and practices as the Secretary determines appropriate; and (B) all applicable laws; and (2) in a manner consistent with the purposes described in subsection (c). (i) Wildfire Wildfire suppression within the Cultural Heritage Area shall be conducted— (1) in a manner consistent with the purposes described in subsection (c); and (2) using such means as the Secretary determines to be appropriate. (j) Native American cultural and religious uses (1) In general Nothing in this section diminishes any rights of the Tribe regarding access to the Cultural Heritage Area for Tribal activities, including spiritual, cultural, and traditional food-gathering activities. (2) Native American uses and interests (A) Access and use In accordance with applicable law, the Secretary shall ensure access to the Cultural Heritage Area by members of the Tribe for traditional cultural purposes. (B) Temporary closure (i) In general In carrying out subparagraph (A), the Secretary, on request of the Tribe, may temporarily close to the general public use of one or more specific portions of the Cultural Heritage Area for the purpose of protecting the privacy of traditional cultural activities in the Cultural Heritage Area by members of the Tribe. (ii) Limited effect A closure under clause (i) shall be made— (I) to affect the smallest practicable area; and (II) for the minimum period of time necessary for the purpose described in that clause. (C) Purpose of access Access described in subparagraph (A) shall be consistent with the purpose and intent of Public Law 95–341 ( 42 U.S.C. 1996 ) (commonly known as the American Indian Religious Freedom Act ) and other applicable laws. (k) Adjacent management (1) In general The designation of the Cultural Heritage Area shall not create a protective perimeter or buffer zone around the Cultural Heritage Area. (2) Effect The fact that activities or uses can be seen or heard from areas within the Cultural Heritage Area shall not preclude the conduct of the activities or uses outside the boundary of the Cultural Heritage Area. (l) Law enforcement The Secretary, in coordination with the Tribe, shall ensure adequate law enforcement presence to maintain the integrity of the Cultural Heritage Area. (m) Cooperative agreements The Secretary may enter into cooperative agreements with the Tribe to further the protection, management, or public interpretation of the Cultural Heritage Area. (n) Water resource facilities (1) Definitions In this subsection: (A) Reservation The term Reservation means the Blackfeet Indian Reservation located in the State. (B) Water resource facility The term water resource facility means a dam, irrigation or pumping facility, reservoir, water conservation works, aqueduct, canal, ditch, pipeline, well, hydropower project, transmission or other ancillary facility of a hydropower project, and other water diversion, storage, or carriage structure. (2) Prohibition on new water resource facilities After the date of enactment of this Act, the President or any other officer, employee, or agent of the United States shall not fund, assist, authorize, or issue a license or permit for the development of any new water resource facility within the Cultural Heritage Area. (3) Effect Nothing in this subsection prevents— (A) the development, maintenance, or operation of any water resource facility located on— (i) the Reservation; (ii) Federal land outside the Cultural Heritage Area; or (iii) non-Federal land; or (B) the maintenance or repair of any water resource facility within the Cultural Heritage Area in existence on the date of enactment of this Act. (o) Map and legal description (1) In general As soon as practicable after the date of enactment of this Act, the Secretary shall submit a map and a legal description of the Cultural Heritage Area to— (A) the Committee on Energy and Natural Resources of the Senate; and (B) the Committee on Natural Resources of the House of Representatives. (2) Force of law The map and legal description submitted under paragraph (1) shall have the same force and effect as if included in this section, except that the Secretary may correct typographical errors in the map and legal description. (3) Public availability The map and legal description submitted under paragraph (1) shall be on file and available for public inspection in the appropriate offices of the Forest Service. 6. Tribal coordination (a) Consultation (1) In general The Secretary shall consult with the Tribe not less than twice each year, unless otherwise mutually agreed, regarding— (A) the protection, preservation, and management of the Cultural Heritage Area; (B) proposed new uses; (C) whether management is compatible with the values and attributes of the Badger-Two Medicine Traditional Cultural District; and (D) management actions within the Cultural Heritage Area necessary— (i) to fulfill the purposes of this Act; (ii) to ensure management decisions reflect Native knowledge; and (iii) to protect the off-reservation rights of the Tribe. (2) Process for consultation (A) Existing regulations The Secretary shall carry out consultation under this section in accordance with this Act and chapter 1560 of the Forest Service Manual (or successor regulations). (B) Schedule As soon as practicable after the date of enactment of this Act, the Secretary shall establish, in consultation with the Tribal Business Council, a schedule for consultation. (C) Initiation To initiate consultation, the Secretary shall request, in writing, to consult with the Tribal Business Council. (D) In-person consultation The Secretary shall carry out consultations, in person, with the Tribal Business Council. (E) Summary Within 30 days after the completion of each consultation, the Secretary shall send a written summary of the consultation to the Tribal Business Council. (F) Reopening consultation If the Tribal Business Council disagrees with the summary of consultation, the Tribal Business Council may, within 30 days, request to reopen the consultation. (3) Tribal management proposals The Secretary shall— (A) consider proposals for management actions within the Cultural Heritage Area submitted by the Tribe; and (B) respond to the Tribe, in writing, within 90 days if a management action proposed by the Tribe is rejected. (b) New uses (1) In general (A) Request for consent after consultation (i) Denial of consent If the Tribe denies consent for a new use within the Cultural Heritage Area within 30 days after completion of the consultation process under subsection (a), the Secretary shall not proceed with the new use. (ii) Granting of consent If the Tribe consents to a new use within the Cultural Heritage Area in writing or fails to respond within 30 days after completion of the consultation process under subsection (a), the Secretary may proceed with the notice and comment process and the environmental analysis with respect to the new use. (B) Final request for consent (i) Request Before the Secretary signs a record of decision or decision notice for a proposed new use within the Cultural Heritage Area, the Secretary shall again request the consent of the Tribe. (ii) Denial of consent If the Tribe denies consent for a new use within 30 days after receipt of the proposed record of decision or decision notice under clause (i), the new use shall not be authorized. (2) Public involvement With respect to a proposed new use within the Cultural Heritage Area, the public shall be provided notice of— (A) the purpose and need for the proposed new use; (B) the role of the Tribe in the decision­making process; and (C) the position of the Tribe on the proposal. (c) Emergencies and emergency closure orders (1) Authority The Secretary shall retain the authority of the Secretary to manage emergency situations within the Cultural Heritage Area— (A) to provide for public safety; and (B) by issuing emergency closure orders in the Cultural Heritage Area subject to applicable law. (2) Notice The Secretary shall notify the Tribe regarding emergencies, public safety issues, and emergency closure orders that apply to the Cultural Heritage Area as soon as practicable. 7. Badger-Two Medicine Advisory Council (a) Establishment Not later than 180 days after the date of enactment of this Act, the Secretary shall establish an advisory council, to be known as the Badger-Two Medicine Advisory Council (referred to in this section as the Council ). (b) Duties The Council shall advise the Secretary with respect to the preparation and implementation of the management plan. (c) Applicable law The Council shall be subject to the Federal Advisory Committee Act (5 U.S.C. App.). (d) Members The Council shall include 9 members, to be appointed by the Secretary, with backgrounds that reflect— (1) the purposes for which the Cultural Heritage Area was established; and (2) the interests of the stakeholders that are affected by the planning and management of the Cultural Heritage Area. (e) Representation (1) In general The Secretary shall ensure that the membership of the Council is fairly balanced in terms of the points of view represented and the functions to be performed by the Council. (2) Tribal representation The Council shall include a representative of the Tribe, who shall be recommended to the Secretary by the Tribal Business Council. (f) Duration The Council shall terminate on the date that is 1 year after the date on which the management plan is adopted by the Secretary. 8. Self-determination contracts (a) In general The Secretary may contract with the Tribe to perform administrative or management functions within the Cultural Heritage Area through contracts entered into under the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5301 et seq.). (b) Requirements With respect to any contract carried out under subsection (a)— (1) the Secretary shall carry out all functions delegated to the Secretary of the Interior under the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5301 et seq.); and (2) the contract or project shall be entered into under, and in accordance with, section 403(b)(2) of the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5363(b)(2) ). (c) Effect on environmental and other requirements (1) In general Nothing in this section alters or abridges the application of— (A) the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.); or (B) any other Federal environmental law (including regulations). (2) Environmental analyses Nothing in this section allows the Secretary or the Tribe to waive completion of any necessary environmental analysis under applicable Federal law. (3) Retention of NEPA responsibilities The Secretary shall make any decision required to be made under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) or other applicable Federal law (including regulations) with respect to any activity to be carried out on Federal land under this section. (4) Applicability of the Administrative Procedure Act Nothing in this section alters or abridges the application of subchapter II of chapter 5 or chapter 7 of title 5, United States Code, with respect to this section. 9. Legal effect (a) Fish and wildlife Nothing in this Act affects the jurisdiction or responsibilities of the State with respect to fish and wildlife. (b) Public access Except as otherwise provided in this Act, nothing in this Act affects public access to the Cultural Heritage Area. (c) Water rights (1) In general Nothing in this Act— (A) constitutes an express or implied reservation by the United States of water or water rights for any purpose; or (B) modifies or otherwise affects any water rights existing on the date of enactment of this Act, including any water rights held by the United States. (2) State water law The Secretary shall follow the procedural and substantive requirements of the applicable State and Federal law to obtain and hold any water rights not in existence on the date of enactment of this Act with respect to the Cultural Heritage Area. (d) Treaty rights; Tribal land (1) Treaty rights Nothing in this Act alters, modifies, enlarges, diminishes, or abrogates the treaty rights of any Indian Tribe, including the off-reservation reserved rights secured by the Treaty with the Blackfoot Indians on October 17, 1855, and the Agreement with the Indians of the Blackfeet Indian Reservation on September 26, 1895. (2) Tribal land Nothing in this Act affects any land or interest in land held in trust by the Secretary of the Interior for the Tribe or individual members of the Tribe. (e) No effect on jurisdiction Nothing in this Act limits or otherwise affects the civil or criminal regulatory jurisdiction, including law enforcement, for issues under the jurisdiction of the Tribe. (f) Existing structures The maintenance of structures within the Cultural Heritage Area in existence as of the date of enactment of this Act may be permitted to continue— (1) in accordance with— (A) this Act; and (B) applicable law; (2) in a manner consistent with the purposes described in section 5(c); and (3) subject to such reasonable regulations, policies, and practices as the Secretary considers necessary. 10. Nondisclosure of cultural sites (a) In general The Secretary shall not disclose to the public information regarding the nature and location of cultural sites where the Secretary determines, in consultation with the Tribe, that the disclosure may— (1) risk harm to cultural resources of the site; (2) cause a significant invasion of privacy; or (3) impede the use of the site for traditional cultural activities by the Tribe or members of the Tribe. (b) Effect Information withheld from the public under subsection (a) shall not be considered to be a Federal record for purposes of section 552 of title 5, United States Code (commonly known as the Freedom of Information Act ).