FWS's plan to share management of bison refuge with tribes sparks lawsuit

The Bitterroot Salish, Kootenai and Pen d'Oreilles tribes consider Montana's National Bison Range part of their heritage, a link to the animals their ancestors once hunted and worshipped.

More than 100 years ago, Congress bought more than 16,000 acres of the tribes' Flathead Reservation to create the range. According to tribal history, the bison there today partly descend from six calves brought to the area by one of the tribes' ancestors.

So it's no surprise the Confederated Salish and Kootenai Tribes (CSKT) want a larger role in managing the range. Last month, the Fish and Wildlife Service released a draft agreement that would hand over most of the range's day-to-day responsibilities to the tribes, with oversight from the agency's refuge manager.

To the tribes, it's a victory. But to some environmental groups and former Interior Department officials, it's a dangerous precedent that could jeopardize the nation's wildlife refuges.

"The law is clear on management. Management must rest with the Fish and Wildlife Service. Must," said Nathaniel Reed, a former Interior assistant secretary, in a recent interview. "There are no exceptions to the law."


Reed is one of several former Interior officials who -- along with the watchdog group Public Employees for Environmental Responsibility -- filed a lawsuit against the agency for entering a similar funding agreement with the tribes in 2008. Their claim: The agreement violated the National Wildlife Refuge System Administration Act and the Indian Self-Determination and Education Assistance Act.

But Dean Rundle, the FWS manager of the refuge, emphasized that under the agreement, final management decisions rest with the agency. It is also a draft, he said, that is open for comment and criticism.

The central disagreement lies in the definition of management. The tribes and FWS officials say the agreement does not cede sole control for the range to the tribes and gives final authority to the agency. Critics say that is misleading: Most positions at the refuge would go to the tribe, which would also be able to protest the FWS manager's every decision.

The Refuge Act and the Self-Determination Act add further complication. The former stipulates FWS must manage refuges; the latter sets out various requirements encouraging agencies to enter contracts with tribes to administer programs as long as they do not outsource "inherently federal" functions.

"Unfortunately, we don't have a cookbook from Congress" on how to accommodate both laws, Rundle said. But "we don't believe that the draft turns over final management decision to the tribes."

'Tribal takeover' or co-management?

PEER has been the most outspoken group against the arrangement since Interior first negotiated an agreement with the tribes in 2006. Not only did the group see it as a legal precedent for tribal management of refuges, but also as a symbolic one. The National Bison Range is one of the nation's oldest -- and most celebrated -- refuges.

In 2010, PEER won a partial victory when the lawsuit it filed resulted in the rescission of the second agreement between FWS and the tribes. A U.S. district judge ruled the agency had not followed procedures under the National Environmental Policy Act. But he declined to rule on the rest of the lawsuit's claims, leaving the door open for another agreement -- and possibly another lawsuit.

In a recent news release, the watchdog called the latest proposed agreement a "tribal takeover" of the "crown jewel of the National Wildlife Refuge System."

"Unfortunately with this new Bison Range contract, the third time is not the charm," PEER senior counsel Paula Dinerstein said in a statement. "The basic problem remains that this agreement would improperly contract out major federal functions without adequate oversight to protect taxpayers."

The group has a long list of concerns, including the tribe's authority to screen all employees and volunteers, gain prompt access to complaints, and claim the salary and benefits of any FWS employee who leaves.

The tribe also is not subject to the Freedom of Information Act. Though any documents it provides to FWS would fall under the law, other internal tribal documents about the range would be off limits to the public.

But PEER's prime argument -- and that of other groups -- is that the agreement effectively hands over control of a national refuge to an independent tribal nation. The tribes would be allowed to fill most of the positions at the range, and all work plans would be done "cooperatively" with the tribes, though FWS has the last say.

Of particular concern is a provision that allows the tribes to enter a dispute resolution process if tribal officials do not agree with a decision made by the refuge manager. In comments on the draft, PEER calls this "a bureaucratic nightmare designed to daunt even the most adamant Refuge Manager from making any decision or taking any action with which the CSKT may disagree."

The National Wildlife Refuge Association shares PEER's concerns. President Evan Hirsche emphasized that his group was not criticizing the tribes' abilities, but he said the proposed agreement potentially undermines the FWS management's "decisionmaking authority."

"Look, it's important that the Fish and Wildlife Service work with the tribes and other partners, but we can't give away the stores," he said, adding that the proposed plan also neglects to stipulate a price ceiling for the contract. "We can't be providing unlimited dollars to a partner under a plan that doesn't provide great certainty on Fish and Wildlife management and oversight."

Hirsche also argued that before FWS enters into contracts with tribes, it should finalize a national policy on annual funding agreements -- one that outlines "inherently federal" positions, stipulates that agreements must be cost-effective and clearly states FWS authority, among other things.

Rundle said that FWS is in the process of creating a national policy but that negotiations with the Confederated Salish and Kootenai Tribes have taken place on a "parallel track."

'Deep historical connection'

The proposed agreement is just one step of several before the tribes can begin to co-manage the refuge.

Rundle said the agency plans to release a draft environmental assessment by early fall and make a decision on whether to launch a full environmental impact statement by the end of this year.

PEER is pushing for the full EIS. But not all environmental groups agree.

The National Wildlife Foundation awarded the tribes its 2012 Conservation Achievement Award in Government "for their leadership on fish and wildlife conservation that has provided an example for local, state and federal governments across the Pacific Northwest."

Among their achievements: establishing the first tribally designated wilderness area, restoring trumpeter swans to Flathead Reservation and joining the National Wildlife Foundation to stop a proposed dam on the Kootenai River in northwest Montana.

Garrit Voggesser, the foundation's national director of tribal partnerships, said in a recent interview that the tribes have managed "millions of acres of habitat and wildlife for 80-plus years."

"We support a strong management role for tribes at the Bison Range," he said. "They have a deep historical connection to the bison and to the range."

Voggesser also dismissed the argument that the proposed agreement on the range would set a precedent. He pointed to the Obama administration's recent proposal to allow the Oglala Sioux Tribe of South Dakota to operate a unit of the Badlands National Park.

The difference is that the land belongs to the Oglala Sioux Tribe, while the National Bison Range does not belong to Confederated Salish and Kootenai Tribes. In the former case, the government took over management of the land but not the deed; in the latter, Congress bought the land to turn it into a refuge.

But CSKT spokesman Robert McDonald said in a recent interview that the range sits in the middle of the tribes' reservation -- and was obtained during a time when the United States government was forcing tribes to sell.

Still, he said, the tribes are not trying to turn back time.

"We're not attempting to buy it, we're not attempting to take it over 100 percent -- we're not even in a position to," McDonald said. "We're partners with the Fish and Wildlife Service, and as partners, there's an understanding that we have a say."

But officials at FWS have not always embraced the idea of co-managing the range with the tribes.

In 2007, the House Natural Resources Committee pressured then-Interior Secretary Dirk Kempthorne to follow through with a funding agreement, despite misgivings within FWS. In a letter to Kempthorne, Reps. Nick Rahall (D-W.Va.) and Don Young (R-Alaska) -- then the chairman and ranking member -- called it a "logical partnership" that did not violate the Refuge Act or the Self-Determination Act.

"We ... are concerned that the lack of support of this agreement by some individuals within the FWS may have resulted in a distorted record concerning NBR activities under the [annual funding agreement]," they wrote.

"CSKT's connections to the [National Bison Range Complex], and its bison, make for unique circumstances," they continued. "Also, in this instance, CSKT owns the land on which two of the NBRC's ancillary refuges are located. In fact, the Ninepipe and Pablo National Wildlife Refuges are operated by FWS pursuant to easements obtained from CSKT."

Since then, Congress has stayed publicly silent on the agreement, leaving FWS to quietly negotiate with the tribes in the wake of the 2010 court decision. But PEER has kept the issue in the spotlight.

"Frankly, this is a politically incorrect thing to do," PEER Executive Director Jeff Ruch said. But he argued it was necessary to ensure other refuges did not follow the same path. "This basic dynamic of tribes wanting more control is happening more."

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