September 12, 2001
Mr. Terry Virden, Director
Office of Trust Responsibilities
Bureau of Indian Affairs
MS 4513-MIB
1849 C Street N.W.
Washington, D.C. 20240
RE: Comments on Proposed Withdrawal of Final Rule Regarding Acquisition of Title to Land in Trust
66 Fed.Register No. 156, PP. 42,474-42,475 (August 13, 2001)
Dear Mr. Virden:
The National Governors Association appreciates the opportunity to comment on the proposed withdrawal of the final rule governing procedures for the taking of land into trust, 66 Fed. Register No. 156, pp. 42,474-42, 475 (August 13, 2001). As indicated in our letters of June 13, 2001 and April 9, 2001, the nation's Governors strongly support withdrawal of the final rule and hope these comments will assist the department as it considers further action in this matter.
As stated in our previous comments, the Governors have consistently opposed the final rule for the acquisition of trust lands. Notwithstanding our objections, the Governors understand the need for tribal acquisition of land and commend the department for its efforts on this issue. The Governors believe that, with input from all parties, the department can promulgate a final rule supported by federal, state, local and tribal governments.
In the notice of proposed withdrawal of the final rule, the department identified the following areas for comment: (1) the expedition of individual applications for trust land for housing; (2) the submission of land use plans in the application for a Tribal Land Acquisition Area (TLAA); (3) evidentiary standards for trust land acquisitions; and (4) the length of time for review by state and local governments of applications for trust land status. Each of these areas is addressed below.
1. Limitations should be placed on the expedition of trust land applications for housing or home site purposes.
The Governors recognize the need for trust land acquisition for the purpose of providing housing and home sites. However, limitations must be placed on any expedited process for the taking of land into trust. Specifically, individuals belonging to tribes with existing reservations should not be allowed to participate in this process - particularly those belonging to large reservations. To ensure complete consideration of state and local concerns, lands located in developed or developing areas should also be excluded from any expedited acquisition process.
Finally, tribal housing developments present unique environmental concerns, as federal law does not govern septic systems discharging to groundwater rather than surface waters. Because the taking of this land into trust will remove the land from the jurisdiction of state environmental laws, any expedited process must continue to ensure close review of potential environmental impacts.
2. Tribes should be required to submit land use plans in applications for TLAA designation. Furthermore, limitations should be placed on the designation of a TLAA.
The nation's Governors support the submission and approval of land use plans as a part of a TLAA application. Notwithstanding this additional requirement, questions remain concerning the creation of a TLAA. Once accorded TLAA status, land within the TLAA may be acquired under lesser standards for on-reservation lands. Ultimately, the designation of a TLAA may significantly impact state and local governments in a variety of areas including gaming, tax revenues, and environmental regulations. The designation of a TLAA should be limited to only those tribes without reservations, as the rule was originally intended, and should not be extended to tribes as a means of promoting self-determination and economic development, as the rule currently provides.
3. Standards imposed for the taking of land into trust must be fair and equitable to both tribes and state and local governments.
As noted in our previous comments, the Governors ask that evidentiary standards for the taking of land into trust be fair and equitable to both tribes and state and local governments. The Governors appreciate efforts by the department to clarify these standards as noted in the notice of proposed withdrawal of the final rule. Nevertheless, the proposed standard of "substantial evidence" imposed on tribes for both on-reservation and off-reservation land acquisition remains a lesser standard than the "clear evidence" standard imposed on state and local governments. Moreover, state and local governments must show "severe harm" to defeat on-reservation acquisitions and "significant harm" to defeat off-reservation acquisitions. The respective burdens of proof for tribes and state and local governments must be equitable and should not favor the taking of land into trust.
4. The length of time for comment on applications for on-reservation and off-reservation trust land acquisition should be extended. Furthermore, tribal trust land applications must provide full disclosure of intended land uses.
The Governors support an extension of time for comment by state and local governments from 30 to 60 days for on-reservation acquisitions and 60 to 90 days for off-reservation acquisitions. In addition, and as stated in our earlier comments, materials submitted by tribes in the application for trust land acquisition should be shared automatically and immediately shared with state and local governments. Following the March 5, 2001 U.S. Supreme Court decision in U.S. Department of Interior v. Klamath Water Users Protective Association, such materials are available under the Freedom of Information Act. It has been the experience of many Governors, however, that the department regularly delays releasing information submitted by tribes until well after the statutory deadlines and comment periods have expired. Also, to allow adequate comment by state and local governments, trust land applications must provide full and complete disclosure of all intended uses of trust lands, including gaming.
In addition to the above remarks, the Governors reiterate concerns expressed in our previous comments to the department. Specifically, a final trust land rule should provide for an impartial and non-biased mediator to hear final decisions on trust land acquisitions. In addition, we ask that the department comply with E.O. 13132 on federalism and consider the significant impact of trust land acquisition on state and local governments, including zoning, land uses, tax revenues, environmental regulations and public safety.
On behalf of the nation's Governors, I thank the department for its thoughtful consideration of this issue and encourage the department to provide a venue for state, local and tribal governments to negotiate and reach a consensus on trust land acquisitions. If I can be of assistance, please do not hesitate to ask.
Sincerely,
Raymond C. Scheppach
Executive Director
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