On July 24, 2015, the U.S. Forest Service published a notice in the FEDERAL REGISTER seeking public comments on proposed revised internal Forest Service directives on American Indian and Alaska Native relations. 80 Fed. Reg. 44019 (copy attached). The revised directives are to be issued as a chapter in the Forest Service Manual (FSM 1500, Chapter 1560) and a chapter in a Forest Service Handbook (FSH 1509.13, Chapter 10). The notice provides a summary and section-by-section analysis of the proposed changes, but not the actual text of the proposed changes. Rather, it provides a website address: www.fs.fed.us/spf/tribalrelations/bundledconsultation.shtml. The proposed revised directives can be found at that website, along with the existing directives and several other documents. As stated in the notice, the Forest Service engaged in consultation with tribes on these proposed changes in June 2013 and considers this consultation to be ongoing while the proposed directives are open for public comment. The deadline for submitting comments is September 22, 2015.
The proposed directives are intended to ensure that the Forest Service complies with several sources of law and policy, and to ensure that it is accountable for compliance. Among the sources of authority cited in the notice are two statutes: the Tribal Forest Protection Act of 2004 (PL 108-278; codified at 25 U.S.C. § 3115a) and Title VIII Subtitle B of the Food, Conservation, and Energy Act of 2008 (the “2008 Farm Bill”; PL 110-246; codified as “Cultural and Heritage Cooperation Authority” at 25 U.S.C. §§ 3051-3057). The 2004 Act authorizes agreements for tribes to carry out land management activities on National Forest lands. The 2008 Farm Bill enacted statutory authority for: reburial of Native American human remains and cultural items on National Forest lands; ensuring access to National Forest lands for traditional and cultural purposes; providing trees and forest products to tribes at no charge for traditional and cultural purposes; and withholding culturally sensitive information from disclosure.
Another source of authority cited for the proposed directives is U.S. Department of Agriculture (USDA) Regulation 1350-002, Tribal Consultation, Coordination, and Collaboration (Jan. 18, 2013), available at www.ocio.usda.gov/document/departmental-regulation-1350-002. That Departmental Regulation, which applies to all USDA agencies including the Forest Service, was issued to implement President Obama’s 2009 Memorandum to Heads of Executive Departments and Agencies on Tribal Consultation.
The notice also says that the proposed directives are intended to implement the recommendations in the 2012 Report to the Secretary, USDA Policy and Procedures Review and Recommendations: Indian Sacred Sites. Finally, the notice cites the interagency Memorandum of Understanding among the Departments of Defense, Interior, Agriculture, and Energy and the Advisory Council on Historic Preservation regarding Interagency Coordination and Collaboration for the Protection of Indian Sacred Sites. (Dec. 2012), available at: www.achp.gov/sacredsiteprotection.html. (See our General Memorandum 12-133 of December 14, 2012.) The proposed directives would implement certain elements of the Action Plan implementing the Sacred Sites MOU that relate to the Forest Service.
In explaining the background and need for the proposed directives, the notice states, “Every part of the Forest Service involves Tribal relations; every Forest Service employee shares in that responsibility.” The proposal is intended to “help Forest Service employees improve their understanding of the requirements, complexities, and opportunities of tribal relations,” and to bring about “changes in behavior that will lead to enhanced relationships with Indian tribes, which in turn will enable the Forest Service to better accomplish its mission.” As such, the Forest Service believes that the proposed directives “will result in more effective and efficient protection of tribal rights and interests, as well as better information for the Agency in its planning, decision making, and program delivery.”
As noted above, the revised directives are to be issued as a chapter in the Forest Service Manual and a chapter in a Forest Service Handbook. The Manual is a system of reference documents designed to provide Forest Service staff with legal authorities, objectives, responsibilities, instructions, and guidance needed on an ongoing basis to plan and carry out programs and activities. The Handbooks contain specialized guidance intended for staff specialists and technicians.
The proposed Manual release (FSM 1500, Chapter 1560) is 77 pages in length, including 23 pages of references to legal authorities. It would supersede a version of Chapter 1560 that was released on July 18, 2012. The Handbook release (FSH 1509.13, Chapter 10) is 28 pages in length and would supersede an interim version of the Handbook that was released on April 1, 2014, and which expires on October 1, 2015. The Handbook includes instructions on how to conduct consultation with tribes and also addresses training for Forest Service personnel.
Please let us know if we may provide additional information regarding these proposed Forest Service directives or if you would like assistance in preparing comments.