Oregon Administrative Rules › Chapter 350 - COLUMBIA RIVER GORGE COMMISSION › Division 82 - LAND USE ORDINANCE › Section 350-082-0130 - Tribal Treaty Rights and Consultation

Current through Register Vol. 63, No. 7, July 1, 2024
(1) Tribal Treaty
			 Rights and Consultation in the GMA
(a) Notice
			 requirements to the governments of the four Columbia River Treaty Tribes are in
			 350-082-0110.
(b) Applications for
			 proposed new review uses and development located in, providing recreation river
			 access to, or on parcels that adjoin the Columbia River or its fishbearing
			 tributaries shall include the following supplemental information:
(A) The site plan map shall show adjacent
			 river areas at least 1/2 mile upstream and downstream from the project site,
			 the locations at which river access is planned, and the locations of all tribal
			 fishing sites known to the project applicant;
(B) A description of the type of river access
			 and uses proposed, estimated period when the development would be used, and
			 anticipated levels of use (people, boats, and other uses) during peak-use
			 periods; and
(C) Proposed treaty
			 rights protection measures that will be used to avoid effects to Indian treaty
			 or other rights. These measures may include reducing the size and modifying the
			 location or design of the proposed uses, seasonal closures, stringent onsite
			 monitoring, information signs, and highly visible buoys or other markers
			 delineating fishing net locations.
(c) At the same time that the Executive
			 Director sends notice of the proposed development, they shall offer to meet
			 with or consult with the tribal governments prior to making a decision on the
			 proposed development. Offers to meet or consult with a tribal government shall
			 include phone calls and electronic communication to tribal government chairs,
			 chief administrative officers, and natural and cultural resource staff. The
			 Executive Director shall make more than one attempt to contact a tribal
			 government.
(d) Tribal governments
			 shall have 30 calendar days from the date a notice is mailed to request that
			 the Executive Director consult with the tribal government regarding potential
			 effects or modifications to treaty or other rights of the tribe. All
			 substantive comments, recommendations, or concerns expressed by tribal
			 governments during the consultation meeting shall be summarized in the
			 Executive Director's decision, subject to the following confidentiality
			 standards:
(A) The Executive Director shall
			 keep confidential and may not disclose to any person or party who is not the
			 applicant and the applicant's representative the tribal government's comments,
			 recommendations, and concerns, and notes of the consultation and other
			 information related to protection of treaty rights, unless the tribal
			 government expressly authorizes disclosure.
(B) The confidential information shall be
			 submitted to the Gorge Commission for review in the event of an appeal, and
			 shall remain confidential and not subject to disclosure to any person or party
			 other than the applicant, the applicant's representative, the appeal parties
			 and their representatives, and the necessary Gorge Commission staff and Gorge
			 Commission members, unless the tribal government expressly authorizes further
			 disclosure.
(e) Any time
			 periods specified in this land use ordinance shall stop when a tribal
			 government requests consultation and shall not start again until the Executive
			 Director meets with all tribal governments that requested consultation and the
			 Executive Director receives all additional information and actions from the
			 project applicant necessary to avoid effects to treaty rights to the
			 satisfaction of the tribal governments that requested consultation.
(f) A tribal government's choice to consult
			 with the Executive Director shall, in no way, be interpreted as a waiver of the
			 tribe's sovereign immunity or waiver of any claim that the proposed use affects
			 or modifies a treaty right or other tribal rights.
(g) All substantive comments,
			 recommendations, or concerns expressed by tribal governments during the
			 consultation meeting shall be resolved by the Executive Director or project
			 applicant through revisions to the project application, conditions of approval,
			 and, if necessary, in a treaty rights protection plan. The protection plan
			 shall include measures to avoid effects or modifications to treaty and other
			 rights of any Indian tribe.
(h) The
			 Executive Director's decision shall integrate findings of fact that address
			 their effort to meet with or consult with the tribal governments and any
			 revisions and treaty rights protection plan resolving the tribal governments'
			 comments, recommendations, or concerns.
(i) The treaty rights protection process may
			 conclude if the Executive Director determines that the proposed uses would not
			 affect or modify treaty or other rights of any Indian tribe. Uses that would
			 affect or modify such rights shall be prohibited.
(j) A finding by the Executive Director that
			 the proposed uses would not affect or modify treaty or other rights, or a
			 failure of an Indian tribe to comment or consult on the proposed uses as
			 provided in these guidelines, in no way shall be interpreted as a waiver by the
			 Indian tribe of a claim that such uses affect or modify treaty or other tribal
			 rights.