Subscribe

Email Updates
Sign up to stay informed about the latest happenings at Interior.

Subscribe

Sign up to stay informed about the latest happenings at Interior.
Email Updates
Sign up to stay informed about the latest happenings at Interior.
U.S. Department of the Interior
twitter facebook youtube tumblr instagram Google+ flickr
Resources:

Health insurance that works for you - and your employees
Share

Synopsis




Horst Greczmiel, Associate Director for NEPA Oversight, President's Council on Environmental Quality (CEQ):

Extended a warm welcome to the attendees of this Tribal Involvement in Federal Decision Making and NEPA session and thanks to the Department of the Interior's Offices of Environmental Policy and Compliance, and Collaborative Action and Dispute Resolution for providing this forum for discussion and dialogue. This session is part of an on-going series of discussions on government-to-government consultation with Tribes that is lead by the Office of Collaborative Action and Dispute Resolution in the Department of the Interior.

Federal Agencies are called upon to maintain government-to-government consultation with federally recognized tribes (Tribes) that include Tribal Nations, Native Americans and Native Hawai'ians. The agencies are often faced with the question of how that consultation responsibility should be met when the agency is engaging in a NEPA process that is analyzing the environmental effects of a proposed federal action that affects a Tribal interest. This session will focus on the federal agencies' responsibilities for engaging Tribes in NEPA processes and provide the participants an overview of training being developed to address interaction with Tribes as part of CEQ efforts to improve implementation of NEPA.

Kathryn Lynn, Native ADR Program Coordinator, Office of Collaborative Action and Dispute Resolution, Department of the Interior (DOI):

This session in the cross-federal dialogue series on government-to-government consultation is being co-sponsored by the Council on Environmental Quality, DOI's Office of Environmental Policy and Compliance, and DOI's Office of Collaborative Action and Dispute Resolution. This dialogue series was started because of the expressed desire of a great number of federal employees for more information on consultation. The first event was a 2-day workshop held in August 2004. Other sessions have been held on "The Law Behind Government-to-Government Consultation" and "Best Practices in Consultation under Section 106 of the National Historic Preservation Act."

Information about prior events in the series can be found at CADR's website at http://www.doi.gov/cadr. This information includes an overview of the legal background of consultation that was presented by James Van Ness, with DoD, at the first workshop, in addition to information from "The Law Behind Government-to-Government Consultation" session. Participants were urged to take a look at this information to get a further context for consultation and their patience was requested because this website is in the midst of extensive renovation -- the information is there, and a consistent format is still a work in progress.

CADR has done these events in collaboration with other federal agencies. There is no reason why events couldn't be co-sponsored by tribes and other organizations.

Participants were asked to contact CADR if their organization would be interested in co-sponsoring a session on a topic of interest concerning government-to-government consultation.

At a recent symposium on consultation presented by Southwest Strategy, one of the speakers started his presentation by asking the audience to turn to their left and shake hands with the person on their left with their left hand. After the audience dissolved into laughter because they weren't doing it correctly, he said, "Confusing, isn't it? That's what consultation is often like. How well you do depends on how well you listen, how well you follow instructions, and how much you want to succeed."

Consultation should be on-going, not a one-time event. It should be a relationship between the tribes and the federal government. But there are also other requirements for working with Tribes, and the requirements under NEPA are what we are discussing today. How do you fulfill both your consultation and NEPA requirements?

Horst Greczmiel:

The National Environmental Policy Act calls for federal agencies to consider the environmental aspects of their decisions. There are basically three levels of NEPA analysis -- Categorical Exclusion, Environmental Assessment and Environmental Impact Statement -- used by the agency to conduct the NEPA process for a particular proposed action and decision making process. Regardless of the level of NEPA analysis and documentation, the federal agency should ensure that the Tribes whose interests may be affected by the proposed action are aware of the NEPA process and the opportunities for coordination and collaboration throughout the NEPA process. Awareness of the NEPA process and the opportunities it provides can and should be raised through the on-going government-to-government consultation process.

The government-to-government consultation is very different from other types of consultation, so the Federal agency cannot assume that engaging Tribal representatives in the NEPA process is going to be sufficient for government-to-government consultation, unless the government-to-government consultation leads to agreement on this approach.

To increase the effectiveness of the NEPA process, agencies have learned how important it is to get input on the environmental issues, conditions and potential effects from those closest to the resource -- whether the resource is a cultural site or a wetland. We need to work together to ensure that the NEPA process is meaningful and used effectively. A number of initiatives are currently underway to improve the NEPA process and today we'll hear about one such initiative that is designed to better educate all potential participants in the NEPA process on how that process works and how it interacts with government-to-government consultation. The training initiative is being implemented as one of several initiatives originating in the recommendations made by the CEQ NEPA Task Force.

This initiative is addressing training for anyone who may be engaged in a NEPA process, whether businesses, Tribes, agencies, or others interested publics. Our objective today is to provide an overview of the draft training modules to stimulate discussion and gather your input on the issues addressed and whether we're addressing the right issues.

Cheryl Wasserman, leader of the NEPA Task Force Training Work Group was introduced and asked to provide an overview of that effort.

Cheryl Wasserman, Associate Director for Policy Analysis, Office of Federal Activities, Office of Enforcement and Compliance Assurance, US Environmental Protection Agency

Cheryl greeted everyone attending in person and on the telephone. CEQ tasked the Interagency Work Group that she is leading to develop NEPA training for five groups: Senior Decision Makers, state and local government, Tribes, NGOs and federal permit and grant applicants. The work group is starting by developing generic NEPA training modules drawn from the best of what Federal agencies have already developed, reaching out to the various constituent groups to determine what they think should be emphasized both in developing NEPA training they could provide as well as what should be emphasized about them in NEPA training for other groups, then to develop and pilot integrated NEPA training to the various groups before delivering the products to CEQ. We foresee very flexible NEPA training programs which can be adapted to the goals and available time of the groups.

The discussion then highlighted why it is so important for Tribes to more effectively engage in the NEPA process, why this training is so important, and showed slides that were developed in draft for the purpose of soliciting input and generating discussion. The slide presentation addressed the draft training developed to date. [NOTE: Based on comments received from this and other forums, the draft was significantly changed shortly after this presentation. In order to prevent any confusion that might result from the substantial changes, the slide presentation is not reproduced here.]

Some of the broad areas that were highlighted in the presentation are:

  • Numerous laws to protect tribes can be brought together within the NEPA umbrella and the NEPA process must be understood by tribes and others. The NEPA process can provide an important vehicle to sustain Tribal cultural heritage and identity. The goal is for more effective Tribal involvement and understanding of NEPA analyses and processes and how NEPA can be used in federal agency decision making to help achieve national and Tribal goals to sustain cultural heritage and identity and to avoid adverse impacts on sacred sites, and on tribes' culture and way of life.
  • Tribes may fall within the definition of an "environmental justice" community that can be disproportionately affected by proposed federal actions. However, unlike other groups within the environmental justice community, Tribes are sovereigns and government-to-government consultation is required and may, when the Tribe and agency agree, be satisfied through the NEPA process. Thus it is necessary within a NEPA analysis for agencies and Tribes to more effectively identify tribal interests.
  • Tribes are sovereign and their relationship with the Federal government is a government-to-government relationship.
  • Consultation is a process, not just a one-time event. Agencies must work over time to build a relationship with the Tribal government, and also to build trust. It must be understood that we should try to work with the tribe, and not for the tribe. For consultation to be "meaningful," the discussion should be open to consideration of alternatives, information, concerns and mitigation.
  • There are a number of challenges that agencies face in conducting consultation. To begin with, there are over 560 federally recognized Tribes, each with their own unique government structure, interests, and culture. The governance structure of a particular Tribe may be complex and very different from the federal agencies' structure and understanding it is critical to connecting with the Tribe. It must also be recognized that Tribal interests that might be affected may not be readily identified nor freely shared, especially if a trusting relationship has not yet been established.
  • In order to ensure that government-to-government consultation responsibilities are fulfilled, it is important to approach Tribes as soon as possible. When consulting about a proposed action and the associated NEPA process, remember to ask Tribe how it wants to conduct the government-to-government consultation and to discuss the extent of the Tribe's role in the NEPA process.
  • Communication is an on-going and evolving process. One way to help enhance communication is to spell out the expectations by developing a Memorandum of Understanding (MOU) between the involved Tribes and federal agencies in advance of any proposed federal action. This will help make it clear to all parties what is expected of them. A few key items to have in such an MOU include: who to consult (tribal leader, council, etc.), when to consult, and how the Tribe will be engaged in consultation.
  • It may be in the best interest of Tribes to create their own internal process for responding to agencies on proposed actions to allow for more efficient communication and to ensure that key groups are not left out of the process. Additionally, Tribes can consider providing agencies with advance information on tribal interests that need to be protected, so that they will be contacted and involved in discussions about proposed actions that may effect those Tribal interests. It is important for both parties (Tribes and agencies) to ensure that communication happens.
    • Tribal rights are very complex, and can exist whether or not the Tribe has a land base. Not all Tribes have tribal lands or hold those lands in the same way -- there are reservations, trust land, restricted land, Tribes with no tribal lands, and retained interests in lands that were ceded to the federal government. Alaska Natives have a different set of land types altogether. There is only one "tribe" in Alaska -- the Metlakatla Indian Community -- but Native Alaskans have rights that must be respected . Finally, in order to ensure effective consultation, it is important to understand the powers Tribes have over their members as well as over non-members.
  • Tribal involvement in the NEPA process can mean a range of levels of involvement, and ideally can help create alternatives or mitigate effects. CEQ stresses the value of tribal involvement through Cooperating Agency Agreements where the NEPA process is more of a collaborative effort -- always with the caveat that the final decision authority must be respected. Consultation is an exchange of information and points of view at the highest level of government. This is important because Tribes, which have more in-depth knowledge of the aspects of their lives, need to be able to communicate their interests directly to federal agencies who are entrusted with responsibility to help Tribes sustain their culture.
  • Agencies and Tribes may have very different styles of communication and this creates a gap that must be bridged for consultation to be effective. It is important to anticipate and find ways to overcome differences.
  • Sacred sites and the protection of sacred sites has been an issue of concern during past NEPA processes. Information about these sites can be very private, and some are not made known to the world outside of the tribes. This can include not just the location, but everything to do with the site, including the fact that it exists. Thus, even when Tribes find it is in their best interest to identify a sacred site so that it can be protected, they may be unwilling to do so out of concern that the site may be made public and therefore become vulnerable to damage and intrusion. Therefore, it is important to address concerns about protecting sacred sites and potential requests under the Freedom of Information Act.
  • NEPA-like laws and other Tribal environmental laws and their interaction with NEPA and federal environmental laws need to be considered when working through the NEPA process.
Discussion:

Audience comments:

  • Elected tribal leaders must be at consultations. This will help agencies be more inclusive rather than exclusive.
  • We need to train all federal employees who have any interaction with this process so that they understand everything discussed today.
  • Another critical aspect is teaching people about tribal culture. Federal employees need to understand the history of the tribes they are working with. They need to know this before going to work with the tribes.
  • We need to stress that consultation is with tribal leaders which can be more inclusive than just elected tribal officials. When consulting with tribes it is important to bring in the full range of both traditional and new leadership including those who may be outspoken on an issue.
  • I [Dean Seneca] teach a class at an agency on working effectively with Tribal governments and encourage those folks in other agencies to develop a comparable 1-day training. Our course is delivered at the Centers for Disease Control related to emergency preparedness but could be adapted.
  • Within the discussion of culture you should add religion or tradition.
  • Everyone should try to make NEPA as flexible as possible in order to best be prepared for conflict. Meaningful consultation is very important.
  • We should try to increase coordination between agencies. By building on relationships built by others, you can save a lot of time and labor.
  • HUD has special legislation for assistance to Tribes and within that legislation tribes are responsible for NEPA compliance and environmental review.
  • It can be useful to hold meeting near Tribal residences so that Tribal residents can attend as well as local non-tribal residents. The tribal citizens may have different opinions than their leaders.
  • Federal agencies often have deadlines to meet and other time constraints, and tribes have their own time tables and priorities. These are not always compatible and raise an inherent tension over time lines.

  • Audience Question: How do you address issues of confidentiality when it comes to information about sacred sites, for example?
    • Audience Response: DoD has a provision that commits to keep any of this information confidential.
    • Audience response: The Freedom of Information Act would make any attempt to maintain confidentiality problematic. We try to identify general areas without getting too specific.
  • Audience question: What is the difference between being a cooperating agency and government-to-government consultation?
    • HG Response: Government-to-government consultation is an ongoing requirement while cooperating agency status is established for a particular NEPA process. Under NEPA, Tribal governmental entities can be cooperating agencies when they have special expertise or jurisdiction over a proposed action or alternative.
    • As has been repeatedly stated, it is necessary to involve, not just request comment from, the Tribes that may be effected by the proposal that is the subject of the NEPA process. We want the Tribes to be involved early in the NEPA process. We don't want the federal agencies' to develop and publish their work and then begin to engage the public -- including the Tribes -- by asking, "what do you think?" Even if cooperating status is not used, we need to make sure that a helpful dialog is established.
  • Audience comment: Tribes like to enter into MOUs to clarify the understanding of both parties. While this is beneficial, sometimes MOUs overlap. In certain cases, this is okay, but in others, the overlap will cause conflict or create too great a restriction on the agency. So before entering into an MOU, it is critical to thoroughly understand what it says so that the MOU will work as you intend.
    • Audience response: Generally MOUs work well, but the previous point is well made. Each Tribe generally wants its own MOU, but that might not be the best route. Instead, it might be better to create one MOU for a group of Tribes, thus preventing possible overlap. In any event, everyone needs to understand the MOU and be sure that it carries out their intentions.
    • CW response: It is useful for agencies to share draft protocols or MOUs with other agencies and Tribes to determine whether they can be more broadly applied, and also to avoid conflict and create efficiencies in this process.
    • Audience response: In order to make MOUs for a group of Tribes, it may be useful to have the Tribes identify their individual areas of interest. Then you could group the Tribes by cultural interest, geographic areas of interest, or even by county. At the very least, you need to have a protocol. EPA's Region 2 did this with the Haudenashomee tribes and it worked very well and efficiently.
  • Audience question: How can a consultation work when two Tribes disagree about what should happen?
    • HG response: There is no easy answer to that question. You must engage both tribes in the NEPA process that is analyzing the proposed action, and at some point the agency will have to make a decision about how to best proceed. The NEPA process can provide a useful way to balance the cultural needs of both tribes.
  • Audience question: Were tribes consulted on the creation of the NEPA process?
    • HG response: From talking with people who were at CEQ when the guidelines and regulations were developed, tribes had some input. We want to ensure that Tribal involvement in NEPA is a priority as we move forward with our task force initiatives.
  • Audience comment: When you train Tribal representatives in NEPA, I would recommend including federal agencies. This will help to make the training meaningful. Giving the training meaning is very important, because otherwise the training might not be taken to heart.
    • CW response: I agree with this point and we will be encouraging joint training, particularly to build the federal-tribal NEPA working relationships as well as the consultation piece of the relationship that makes everything else work more smoothly.
  • Audience question: Can Tribes be interested parties and cooperating agencies?
    • HG response: Cooperating Agency status is a special status for Tribal governments and governmental entities. The existence of cooperating agency status does not eliminate or change the fact that a Tribe is an interested party when Tribal interests are at issue.
  • Audience comment: There is special legislation to assist Native Americans, where they can in effect become the federal government and conduct the NEPA review.
    • CW response: I am aware of a provision in the Energy Policy Act that provides a mechanism to designate tribes to develop the NEPA analysis and carry out the process.
    • HG response: And HUD also has a program under which tribes can conduct the NEPA review.
  • Audience question: USGS is a science agency. How can we work with others to provide technical capacity in building relationships with tribes?
    • HG response: You can offer training to tribes as well as agencies. Currently we are trying to compile all training programs from different organizations and agencies so let us know of your current programs so that we can continue to update the NEPAnet website.
  • Audience question: Will training cover what happens with tribes that are in the process of being terminated, or tribes seeking recognition? And what status they have?
    • HG response: Thank you for pointing out that the training should address tribes that are not federally recognized.
  • Audience comment: It would make things easier if the NEPA website that CEQ manages could become a one-stop site for all agencies that deal with tribes on NEPA issues.
    • HG response: Our goal is to have NEPAnet provide access via links to sites that address Tribal issues.
    • CW response: We are currently trying to make a web portal. However, this is easier said than done. It will take time.

Kathryn Lynn Closing Comment: Thank you for your comments and participation today. When you do your evaluations, please include in feedback your suggestions on what issues should be raised for the training group as well as any other suggestions you have for making the NEPA process more effective and efficient.