On June 29, 2016, Secretary of the Interior Sally Jewell announced that the National Park Service (NPS) has completed the process of changing its regulations to allow members of federally recognized Indian tribes to gather and remove plants or plant parts for traditional purposes at locations within National Park areas. The Final Rule was published in the FEDERAL REGISTER on July 12 (81 Fed. Reg.45024) and takes effect on August 11. The Final Rule is available at: https://www.federalregister.gov/articles/2016/07/12/2016-16434/gathering-of-certain-plants-or-plant-parts-by-federally-recognized-indian-tribes-for-traditional
Long-standing NPS regulations have prohibited gathering and removing plants or plant parts from areas in the National Park system except in limited circumstances, such as where specifically authorized by federal statute or treaty rights (36 C.F.R. § 2.1). On April 20, 2015, NPS published a proposed rule to relax this prohibition and create a process through which tribes can enter into agreements with NPS to authorize traditional plant gathering by tribal members. 80 Fed. Reg. 21674; see our General Memorandum 15-034 (April 30, 2015). The final rule completes the process of relaxing the general prohibition. Gathering and removal by members of federally recognized tribes is now allowed if NPS and the tribe have entered into an agreement that meets all the requirements set out in a new section of the regulations (to be codified at 36 C.F.R. § 2.6), and if the Superintendent of the park area has issued a permit to the tribe.
The final rule is generally consistent with the April 2015 proposed rule, although NPS did make a few changes in response to comments. A paragraph was added requiring the Superintendent to initiate consultation with the tribe within 90 days after receipt of a request to enter an agreement; if the Superintendent fails to do so, the tribe may submit the request to the Regional Director. An appeal process was added – if the NPS Superintendent denies a tribe’s request for an agreement, a written decision must be provided, which can be appealed to the Regional Director. Also, as proposed, when an agreement is in place, the issuance of a permit by the Superintendent to the tribe would have required concurrence by the Regional Director; the requirement for concurrence at that step has been dropped. A definition of “traditional gathering” was added, which specifies that only hand tools are allowed.
To qualify for an agreement, a tribe must have a traditional association with the specific park area that predates the establishment of the park and the proposed gathering must be for a traditional purpose that is rooted in the tribe’s history and important for continuation of the tribe’s culture. In the preamble of the Final Rule, NPS says it believes that some 433 tribes may be associated with some 215 areas of the National Park system, and that it does not know how many of those tribes may be interested in seeking agreements under the Final Rule.
A tribe that wants such an agreement begins with a request to the Park Superintendent that must include descriptions of: (1) the tribe’s traditional association to the park area; (2) the traditional purposes of the gathering activities; and (3) the gathering activities the tribe wants to conduct, including a list of the plants or plant parts to be gathered and methods to be used. The Superintendent must determine that the tribe does in fact have a traditional association with the park area and that the proposed gathering activities are for a traditional purpose.
The Final Rule lists a number of items that must be included in an agreement, including: a system for administering the gathering, with a means of identifying tribal members designated by the tribe to do the gathering; description of plants or plant parts that may be removed, specifying size and quantity; times and locations for gathering and removal; protocols for monitoring, with thresholds for intervention by NPS and tribal management; periodic review; and protocols for non-compliance. The agreement must also include a statement that sale or commercial use is prohibited, although, in response to comments, NPS included a statement in the preamble regarding the possible use by tribal members of plants or plant parts gathered in park areas under this rule to make and sell traditional handicrafts, saying such “limited commercial use … may help tribes maintain traditional cultural practices, which is a primary purpose of this rule. Accordingly, this rule does not purport to regulate or prohibit this activity.” 81 Fed. Reg. 45033.
Prior to executing an agreement, the Superintendent must ensure compliance with applicable federal laws including the National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), and Endangered Species Act (ESA). With respect to NEPA, the final rule adds specificity that was not in the proposed rule – NEPA compliance will require an environmental assessment and finding of no significant impact. If the NEPA analysis leads to a finding that the agreement would have a significant adverse impact on park area resources or values, the Superintendent is barred from entering into it.
With respect to NHPA, the preamble includes a brief discussion in response to comments regarding the correlation between places where traditional gathering was historically practiced and the category of historic property known as “traditional cultural properties” (TCPs). While acknowledging some overlap, NPS says that “not every plant-gathering location will have enhanced cultural significance,” and that nominating locations to the National Register of Historic Places as TCPs would not be a substitute for the final rule. Since NHPA compliance is a requirement, however, a determination of whether a proposed gathering location is eligible for the National Register as a TCP will typically need to be made. Eligibility (as distinct from nomination) may be beneficial, in part because it renders applicable NHPA section 304, which authorizes NPS to withhold sensitive information from disclosure to the public. With respect to ESA, the Final Rule requires that a clause be included in any agreement stating that it does not authorize gathering any species listed as threatened or endangered.
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