regulation

Friday,
October 7, 2005

Part V

Department of the
Interior
Bureau of Indian Affairs
25 CFR Part 161
Navajo Partitioned Lands Grazing Permits;
Final Rule

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Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations

DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 161
RIN 1076–AE46

Navajo Partitioned Lands Grazing
Permits
Bureau of Indian Affairs,
Interior.
ACTION: Final rule.
AGENCY:

SUMMARY: The Department of the
Interior (Department), Bureau of Indian
Affairs (BIA), is amending its
regulations by adding a new part to
govern the grazing of livestock on the
Navajo Partitioned Land (NPL) of the
Navajo-Hopi Former Joint Use Area
(FJUA) of the 1882 Executive Order
reservation. The purpose of this
regulation is to conserve the rangelands
of the NPL in order to maximize future
use of the land for grazing and other
purposes, while recognizing the
importance of livestock in the Navajo
way of life.
DATES: Effective January 5, 2006.
FOR FURTHER INFORMATION CONTACT:
Archibald H. Wells, Acting Deputy
Bureau Director, Trust Services, Attn:
Agriculture and Range, Mail Stop 4655–
MIB, 1849 C Street, NW., Washington,
DC 20240, Telephone 202–208–6464.
SUPPLEMENTARY INFORMATION:

I. Background
II. Response to Comments
III. Part-by-Part Analysis
IV. Procedural Requirements

I. Background
This regulation is issued to
implement the Secretary of the
Department of the Interior’s (Secretary)
responsibilities for the NPL as mandated
by the Navajo-Hopi Settlement Act of
1974, 25 U.S.C. 640d–6402–31, as
amended by the Navajo-Hopi Indian
Relocation Amendments Acts of 1980,
94 Stat. 929, and the Federal court
decisions of Healing v. Jones, 174 F.
Supp. 211 (D. Ariz. 1959) (Healing I),
Healing v. Jones, 210 F. Supp. 126 (D.
Ariz. 1962), aff’d 363 U.S. 758 (1963)
(Healing II), Hopi Tribe v. Watt, 530 F.
Supp. 1217 (D. Ariz. 1982), and Hopi
Tribe v. Watt, 719 F.2d 314 (9th Cir.
1983).
This regulation also incorporates the
requirements of the American Indian
Agricultural Resource Management Act
(AIARMA) (107 Stat. 2011, 25 U.S.C.
3701 et seq.), as amended. The purposes
of AIARMA include carrying out the
trust responsibility of the United States
and promoting self-determination of

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Indian tribes by providing for the
management of Indian agricultural lands
and related renewable resources in a
manner consistent with identified tribal
goals and priorities for conservation,
multiple use, and sustained yield; by
authorizing the Secretary to take part in
the management of Indian agricultural
lands with the participation of the
beneficial owners of the land in a
manner consistent with the trust
responsibility of the Secretary and the
objectives of beneficial owners; and by
providing for the development and
management of Indian agricultural land.
The AIARMA requires that the Secretary
conduct all land management activities
on Indian agricultural lands in
accordance with agricultural resource
management plans, integrated resources
management plans, and all tribal laws
and ordinances, except where such
compliance would be contrary to the
trust responsibility of the United States.
The proposed regulation was
published in the Federal Register on
November 12, 2003 (68 FR 64023), with
a 90-day public comment period that
ended on February 10, 2004. Before the
proposed regulation was published, BIA
received approval to publish the draft
regulation from the Navajo Nation at a
meeting held on June 26, 2003, in
Window Rock, Arizona.
On October 27, 2004, the Navajo Hopi
Land Commission, by a 6–0 vote, passed
a resolution recommending concurrence
in the final regulation. On February 10,
2005, the Navajo Nation Resources
Committee, by a 7–0 vote,
recommended concurrence, and referred
the final regulation to the Navajo Nation
Intergovernmental Relations Committee
for final concurrence. On April 8, 2005,
the Navajo Nation Intergovernmental
Relations Committee, by an 8–0 vote,
passed a resolution concurring in and
approving the final regulation.
This regulation will become effective
90 days after date of publication in the
Federal Register.
II. Response to Comments
The Department solicited comments
from all interested parties through its
publication of the Proposed Rule in the
Federal Register on November 12, 2003
(68 FR 64023). During the comment
period, BIA employees and
representatives from the Navajo Nation
Resources Committee, the Navajo-Hopi
Land Commission Office, the Navajo
Nation Department of Agriculture, and
the NPL District Grazing Committee
members held public meetings in
Tonalea, Arizona, on December 10,
2003, and in Pinon, Arizona, on
December 11, 2003. These meetings
were well attended, and many NPL

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residents testified in both the English
and Navajo languages. A certified
Navajo interpreter was present at the
meetings to translate comments for the
court reporter so that all testimony was
recorded.
The Department received a total of 63
comments, representing 53 individuals,
on all parts of the proposed rule. The
comments were carefully reviewed by
the regulation drafting team made up of
BIA employees from Washington, DC,
and the Navajo Regional Office,
attorneys from the Solicitor’s Office, and
representatives from the Navajo Nation,
and depending upon their merit, the
Department accepted, accepted with
revision, or rejected comments made on
each part of the rule. As noted in the
part-by-part analysis below, certain
sections of the regulation have been
clarified in direct response to
comments. Additionally, some language
has been deleted and/or added to
provide for increased clarity and
precision. Substantive comments are
summarized below.
III. Part-by-Part Analysis
25 CFR Part 16—Navajo Partitioned
Lands Grazing Permits
The purpose of this regulation is to
conserve the rangelands of the NPL in
order to maximize future use of the land
for grazing and other purposes, while
recognizing the importance of livestock
in the Navajo way of life. This
regulation is an addition to the
regulations of the Bureau of Indian
Affairs governing the grazing of
livestock on the NPL of the Navajo-Hopi
FJUA of the 1882 Executive Order
reservation.
The various subparts of part 161
address the purpose and scope of the
NPL grazing permits; the definition of
terms; the application of tribal policies
and laws pertaining to permits;
environmental compliance and
management documents required by
AIARMA; the process by which carrying
capacity and stocking rates are
established; permit requirements;
eligibility and priority criteria for
reissuance of cancelled permits; permit
transfer, assignment and modification;
procedures for the investigation,
notification and processing of permit
violations; procedures for trespass
notification, enforcement, actions and
penalties, damages and costs; and
procedures by which the Navajo Nation
provides concurrence to BIA under this
part.

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Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations
General Observations in Response to
Comments
Several commenters expressed
general support for the regulation’s
purpose of land restoration and resource
management. However, numerous
concerns and questions were raised by
commenters. Some commenters found
that the regulation did not clearly
identify whether BIA or the Navajo
Nation will oversee particular activities,
or expressed concern about the difficult
nature of enforcing the regulation. One
commenter felt that the regulation is too
‘‘authoritarian rather than flexible.’’
We believe the regulation provides
the significant flexibility in
implementation as required by statute.
Section 640d–9(e)(1)(A) of the
Settlement Act requires that all
conservation practices, including
grazing control and range restoration
activities be coordinated and executed
with the concurrence of the Navajo
Nation. Thus, conservation practices
will be cooperatively developed and
implemented by both BIA and the
Navajo Nation. Further, this regulation
provides the Navajo Nation with the
opportunity to take the lead role in any
part of this regulation, either by
enforcing tribal laws as provided in
subpart B, or through the contracting
process pursuant to Public Law 93–638.
The regulation therefore allows for a
range of approaches in implementation.
However, pursuant to AIARMA which
authorizes the Secretary to carry out the
trust responsibility of the United States
in managing Indian agricultural lands,
the Secretary retains the final authority
for actions taken under this part.
Subpart A—Definitions, Authority,
Purpose and Scope
Summary of Subpart
Subpart A contains key terms used
throughout the regulation. The terms are
consistent with those found in
AIARMA. This subpart also describes
the Secretary s authorities under part
161.
Comments
Numerous commenters expressed
concern that the regulation does not
address the importance of livestock in
the Navajo culture. Another commenter
was concerned that the regulation
rehabilitates the environment but not
human lives. We recognize the crucial
role of livestock, and have revised the
Summary and section 161.3 of the
regulation to note the importance of
livestock in the Navajo way of life,
tradition and culture. The BIA and
Navajo Nation were mindful of the
impact that this regulation would have

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on the NPL residents. The regulation is
intended to facilitate recovery of the
NPL rangeland which in turn will result
in improved conditions for NPL
residents.
A number of commenters stated that
additional funding is necessary in order
for the regulation to achieve its goals.
Two commenters inquired as to whether
funding was included as part of BIA’s
assistance in Navajo law enforcement.
While we have not made any change to
the regulation because funding is an
issue that is determined by Congress,
the Navajo Nation stated that it would
address its concerns about funding for
implementation of the regulation to the
Department in a forthcoming tribal
resolution.
Another commenter felt that
individuals should be compensated to
the extent that their rights are lost due
to the regulation. This regulation does
not intentionally contemplate the loss of
any individual rights. However, if an
individual feels that his or her rights
have been violated by a decision made
by BIA, the decision may be appealed
pursuant to 25 CFR part 2. Decisions
made by the Navajo Nation under this
part may be appealed to the appropriate
hearing body of the Navajo Nation.
Section 161.801 addresses appeals made
under this part. No change was made to
the regulation.
Several commenters requested
clarification of terms used in the
regulation. In response to these requests,
section 161.1 has been revised to further
define the term ‘‘improvements,’’ by
including examples such as windmills,
water troughs, fences, and cattleguards.
Also a definition of ‘‘other affected land
users’’ was added to section 161.4.
Several commenters also indicated
that the District Grazing Committee
should be given greater priority in
decision making. The term ‘‘Navajo
Nation’’ as used in this regulation
includes the District Grazing Committee
and such authority provided to it by the
Navajo Nation. No change was made to
the regulation.
One commenter questioned how the
regulation would classify Shetland
ponies, and one felt that the llama
should not count as an animal unit.
Shetland ponies will be classified as
horses, and llamas kept as livestock will
require a permit because such animals
consume forage and are used to guard
sheep. No change was made to the
regulation.
One commenter felt that NPL District
Rangers should play a larger role in
carrying out the regulation. The role of
NPL District Rangers will be determined
by the Navajo Nation and BIA at the

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implementation stage of this regulation.
No change was made to the regulation.
Another commenter stated that the
Secretary should be responsible for
assisting the Navajo people in
improving their farming methods under
section 161.1. Pursuant to AIARMA, the
Secretary is authorized to increase
educational and training opportunities
in all aspects of agricultural and land
management. Education and assistance
can be addressed on a continuing basis
by BIA and the Navajo Nation following
finalization of this regulation. No
change was made to the regulation.
One commenter was concerned that
there will be two different permits used
on the Navajo Reservation; i.e., 25 CFR
parts 167 and 161. Another commenter
expressed concern that this regulation
and part 167 create different standards
for permit eligibility. One commenter
was concerned that the regulation
would force people to choose between
either grazing on non-NPL Navajo lands
or the NPL. In response, part 167
governs grazing on the majority of the
Navajo Reservation. However, because
grazing management on the NPL must
comply with the requirements of the
Settlement Act, a separate permitting
system must be used on the NPL.
Pursuant to section 161.4, contiguous
areas outside of the NPL may be
included under this part which may
eliminate any confusion caused by two
different permitting systems on
contiguous parcels. The Navajo Nation
will have discretion to determine
whether an individual may hold permits
under both parts 161 and 167. No
change was made to the regulation.
Subpart B—Tribal Policies and Laws
Pertaining to Permits
Summary of Subpart
This subpart is consistent with
AIARMA, and makes clear that Navajo
Nation laws generally apply to land
under the jurisdiction of the Navajo
Nation, except to the extent that those
Navajo Nation laws are inconsistent
with applicable Federal law. Further,
unless prohibited by Federal law, BIA
will recognize and comply with tribal
laws regulating activities on the NPL,
including tribal laws relating to land
use, environmental protection, and
historic or cultural preservation.
Comments
Two commenters expressed concern
about conflicts between Federal law and
those of the Navajo Nation. Sections
161.100 and 161.101, in compliance
with section 3712(b) of AIARMA,
address this concern by providing that
Navajo Nation law applies so long as it

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does not conflict with Federal law, and
that the Navajo Nation is primarily
responsible for enforcing tribal laws on
the NPL. One commenter felt that the
enforcement role of the Navajo Nation
Resources Committee and the Navajo
Nation Courts is ignored under section
161.101. However, section 161.101
provides discretion for the Navajo
Nation to determine the roles of the
Navajo Nation Resources Committee
and Courts. No change was made to the
regulation.
Subpart C—General Provisions
Summary of Subpart
This subpart lists the environmental
compliance and management
documents that are required by
AIARMA. This subpart also discusses
how carrying capacity and stocking
rates are established.
Comments
Numerous commenters expressed
concern that this regulation will result
in the loss of livestock. One commenter
felt that stocking rate adjustments
should be prorated and not be made
equally under section 161.204. In
response, the regulation provides that
livestock numbers may be reduced
when stocking rates are established in
order to facilitate range recovery. While
the extent of such permit reductions
will not be known until BIA and the
Navajo Nation review the current
carrying capacity of each range unit
pursuant to section 161.204, both BIA
and the President’s Office of the Navajo
Nation will explore all possible
alternatives to the loss of livestock. No
change was made to the regulation.
Several commenters indicated that the
permit process should include more
environmental studies. Sections 161.200
and 161.201, in compliance with
AIARMA section 3711(b), address this
concern by requiring that an agricultural
resource management plan be prepared,
and that actions taken by BIA under this
regulation must comply with the
National Environmental Policy Act, 42
U.S.C. 431 et seq., applicable
regulations of the Council on
Environmental Quality, 40 CFR part
1500, and applicable tribal laws and
provisions of the Navajo Nation
Environmental Policy Act CAP–47–95,
where the tribal laws and provisions do
not violate a Federal or judicial decision
or conflict with the Secretary’s trust
responsibility under Federal law. No
change was made to the regulation.
One commenter questioned when
specific environmental standards would
be announced. The standards for
environmental compliance are set forth

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in the statutes and regulations listed
above. Compliance with these standards
and regulations is an ongoing
responsibility of the BIA and Navajo
Nation. No change was made to the
regulation.
Some commenters were concerned
that the regulation did not address the
manner in which current NPL livestock
will be treated if stocking rates are
reduced. We believe this comment
refers to the removal of livestock that
exceed permit stocking rates. This issue
will be addressed at the implementation
stage following finalization of the
regulation. Sufficient time and
accommodations will be made available
to implement changes for individuals
affected by this regulation. No change
was made to the regulation.
One commenter expressed concern
that livestock kept and grazed elsewhere
would count towards NPL livestock
limitations under section 161.204.
Livestock grazed elsewhere on the
Navajo Reservation will have no effect
on the number of NPL grazing permits
that are issued or on the stocking rates
for each permit. No change was made to
the regulation.
One commenter felt that private
agreements should be honored when
range unit boundaries are set, and
another was concerned that range units
would be established based on the
already standing fences. Section 161.202
provides flexibility in determining range
unit boundaries, and allows for
agreements to be reached based on
historical use. Fences may also be taken
into account when establishing range
unit boundaries. No change was made to
the regulation.
One commenter felt that more than
two horses should be allowed on a
grazing unit. In response, the BIA and
the Navajo Nation have determined that
because cattle, sheep and goat herd sizes
are relatively small, two horses are
sufficient for the management of these
herds. No change was made to the
regulation.
One commenter felt that the
regulation should discuss deferred
compensation. Determinations about
compensation will be made in
accordance with Federal and tribal law.
No change in the regulation was made.

Comments
Several commenters raised questions
regarding permit costs. The regulation
does not require that rentals or fees be
paid for permits because the Navajo
Nation requested that the regulation not
include grazing fee provisions. Several
commenters were concerned about the
period of permit validity and permit
renewals. Under section 161.303
permits are valid for one year, and will
be automatically renewed so long as the
permittee remains in good standing. No
change was made to the regulation.
Two commenters also indicated that
the manner in which permits will be
issued is unclear. We believe this
question refers to the process of
applying for and receiving permits. The
specific steps that must be taken by a
potential permittee when applying for a
permit are not outlined in this
regulation. However, BIA and Navajo
Nation personnel will be available to
answer questions about the permitting
process after finalization of this
regulation.
Several commenters were concerned
that the language of section
161.301(a)(14) would result in
permittees being held responsible for
the cleanup of hazardous waste spills,
or that hazardous dumping would be
authorized. Due to the continuing
confusion created by this language,
section 161.301(a)(14) was deleted from
the regulation. Section 161.301(a)(15)
was redesignated as section
161.301(a)(14). Nonetheless, liability
standards for hazardous waste are
governed by applicable statutes and
regulations, and the elimination of this
language from this regulation does not
alter such standards.
One commenter was concerned about
the ability of a family to share a permit.
Section 161.302(b) requires that a
permit be issued in the name of one
individual only, and section 161.302(f)
requires that a permit cannot be
subdivided once it has been issued. This
requirement was developed to ensure
that permit ownership and
accountability may be efficiently
tracked. It does not preclude a family
from sharing in permit responsibilities,
or for a permit holder from assigning his
or her permit to a family member under
section 161.500.

Subpart D—Grazing Permit
Requirements

Subpart E—Reissuance of Grazing
Permits

Summary of Subpart

Summary of Subpart
This subpart sets forth eligibility and
priority criteria for reissuance of
cancelled grazing permits. This subpart
makes clear that the Navajo Nation may
prescribe eligibility requirements for

This subpart describes the general
requirements for obtaining a permit, the
provisions contained in a grazing
permit, the restrictions placed on
permits, and other permit requirements.

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grazing allocations within 180 days
following the effective date of these
regulations. The BIA will prescribe the
eligibility requirements after expiration
of the 180-day period in the event that
the Navajo Nation does not prescribe
eligibility requirements, or in the event
that the Navajo Nation does not take
satisfactory action. This subpart also
describes how new permits may be
granted after the initial reissuance of
permits, and sets forth the procedures
for reissuing permits and allocating
permits within each range unit.
Comments
Many commenters indicated that
grazing permits of the deceased should
pass to their descendants. While permits
may not automatically pass to
descendants under this regulation, the
Navajo Nation has discretion under
section 161.401 to determine who may
be granted the permit of a deceased
permit holder in accordance with
Navajo Nation law. No change was
made to the regulation.
Several commenters expressed
concern that the regulation and
specifically section 161.400 give priority
to those over the age of 65. One
commenter indicated that all enrolled
Navajo Nation members over 18 should
be eligible to receive permits. In
response, priority under section
161.400(c)(1) was given to those aged 65
and older because persons of that age
are more likely to have had their
permits cancelled by the 1972 United
States District Court order in Hamilton
v. MacDonald, Civ. 579–PCT (1972),
and are more likely to be dependent on
livestock for subsistence. No change was
made to the regulation.
Commenters were also concerned that
those not fluent in the English language,
especially the elderly, will be
disadvantaged in exercising their rights
under the regulation. The BIA and the
Navajo Nation are committed to making
the materials and processes of this
regulation available in both the English
and Navajo languages. No change was
made to the regulation.
Commenters were also concerned that
decisions regarding permit reissuance
have already been made. Decisions
regarding permit reissuance have not
been made by either BIA or the Navajo
Nation, and any previous discussions of
permit reissuance were speculative and
non-binding.
One commenter felt that those who
previously grazed on Navajo and Hopi
land should receive permits under
section 161.400. Another commenter
stated that priority for permit reissuance
should go to those starting a business,
and one commenter indicated that first

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priority for reissuing permits should go
to those not paid for relocation. One
commenter expressed concern that
residents of Black Mesa, Arizona, would
be left out of permit reissuance. One
commenter questioned whether nonNavajos are qualified to receive permits,
and another expressed concern that
those outside the Joint Use Area will not
be qualified to receive permits. No
changes were made to the regulation in
response to these comments because the
Navajo Nation has the discretion to
determine permit eligibility for these
and other situations under sections
161.400 and 161.401. If the Navajo
Nation does not prescribe eligibility
criteria for permit reissuance, the
criteria presented in section 161.400
will be implemented. The criteria
presented in section 161.400 were
developed by BIA and the Navajo
Nation and are intended to restore
permits to those permittees who had
their permits cancelled by court order in
Hamilton v. MacDonald, Civ. 579–PCT
(1972). Under section 161.400, only
current residents of the NPL may
receive permits. This criterion was
developed to ensure that current NPL
residents receive permits before nonNPL residents receive them. Section
161.401 provides complete discretion to
the Navajo Nation to grant permits
based on its own criteria following
reissuance of permits under section
161.400. No change was made to the
regulation.
Another commenter felt that 180 days
is insufficient time for the Navajo
Nation to establish permit eligibility
requirements. The Navajo Nation may
receive an extension to determine
eligibility criteria under section 161.400
upon request and a showing that
progress is being made. No change was
made to the regulation.
Subpart F—Modifying A Permit
Summary of Subpart
This subpart describes how permits
may be transferred, assigned or
modified.
Comments
One commenter expressed concern
about the impact that outside businesses
would have on grazing permits under
section 161.502 if businesses were
allowed to occupy grazing lands and
remove those lands from a range unit.
Another commenter felt that in the
event that a special land use results in
permit modification, the permittee
should be compensated. In response,
section 161.502 provides discretion to
BIA and the Navajo Nations to
determine whether a special land use

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may occupy grazing land, but does not
require that special land uses be
approved. Determination about special
land uses will be made on a case-bycase basis by BIA and the Navajo
Nation. Determinations about
compensation will be made in
accordance with Federal and tribal law.
No change was made to the regulation.
Subpart G—Permit Violations
Summary of Subpart
This subpart sets forth the procedures
for investigation, notification and
processing of permit violations. This
subpart also describes the process by
which mediation can be used in the
event of a permit violation.
Comments
One commenter expressed concern
that the responsibilities for monitoring
permit compliance under section
161.601 were unclear. In response to
this concern, section 161.601 has been
slightly modified to add ‘‘and/or Navajo
Nation’’ to provide additional
enforcement capabilities.
One commenter suggested that section
161.603 be deleted. This section was
developed by BIA and the Navajo
Nation to provide an alternative means
of resolving permit violations or
disputes prior to permit cancellation.
No change was made to the regulation.
Subpart H—Trespass
Summary of Subpart
This subpart describes the process for
trespass notification, enforcement,
actions and penalties, damages and
costs. This subpart is substantially
similar to the general grazing
regulations, 25 CFR part 166, subpart I,
and is consistent with AIARMA.
Comments
Numerous commenters were
concerned that the trespass provisions
and penalties are too harsh and
insufficiently defined. However, section
3713 of AIARMA requires the Secretary
to establish civil penalties for the
commission of trespass on Indian
agricultural lands, and specifies what
those penalties must be. The trespass
provisions contained in this subpart are
substantially similar to the trespass
provisions contained in the general
grazing regulations in 25 CFR part 166,
and incorporate the requirements of
AIARMA. In accordance with section
161.101, BIA has agreed that it will use
the Navajo Nation Trespass Code when
resolving trespass issues on the NPL.
However, if a trespass issue remains
unresolved under the Navajo Nation
Trespass Code, the provisions of this

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subpart will be applied. No change was
made to the regulation.
Several commenters were concerned
that a trespass may result in loss of NPL
occupancy under section 161.715. This
is a concern to some NPL residents
because the issue of authorized
occupancy on the NPL is somewhat
unclear in some cases due the particular
history of the area. In response, we
slightly modified section 161.715(a) to
eliminate loss of occupancy as a
consequence of failure to pay penalties,
damages or costs.
Subpart I—Concurrence/Appeals/
Amendments
Summary of Subpart
This subpart sets forth the procedures
for the Navajo Nation to provide
concurrence to BIA under this part. This
subpart also states that decisions made
by BIA under this part may be appealed,
and that decisions made by the Navajo
Nation under this part may be appealed
to the appropriate hearing body of the
Navajo Nation.
Comments
Some commenters were concerned
with the possibility that BIA may
implement proposals without the
Navajo Nation’s concurrence under
section 161.800(b)(5). In response,
section 161.800 provides a detailed
procedure by which the Navajo Nation
provides concurrence to BIA
conservation practices, including
grazing control and range restoration
activities as required by section 640d–
9(e)(1)(A) of the Settlement Act. If
however, this process does not result in
Navajo Nation concurrence, BIA is
authorized to act by AIARMA, which
authorizes the Secretary to carry out the
trust responsibility of the United States
in managing Indian agricultural lands.
Every attempt will be made to resolve
issues of concern prior to the
implementation of section 161.800(b)(5).
No change was made to the regulation.
One commenter indicated that the
citation in section 161.800(a) should be
‘‘Hopi v. Watt’’ rather than the
‘‘Settlement Act.’’ We slightly modified
the regulation to include the specific
citation for the Settlement Act for
clarity.
Another commenter felt that the
Navajo-Hopi Land Commission is best
suited for recommending amendments
under section 161.802. This section
requires the Resources Committee to
incorporate the recommendation of the
Navajo-Hopi Land Commission in
approving amendments to this part. No
change was made to the regulation.

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IV. Procedural Requirements
A. Review Under Executive Order 12866
Under Executive Order 12866 (58 FR
51735, October 4, 1993), the Office of
Management and Budget (OMB) must
determine whether the regulatory action
is ‘‘significant’’ and therefore subject to
OMB review and the requirements of
the Executive Order. The Order defines
‘‘significant regulatory action’’ as one
that is likely to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
in the Executive Order.
The rule describes how BIA will
administer grazing permits on trust
land. Thus, the impact of the rule is
confined to the Federal Government and
individual Indian and the Navajo
Nation, and does not impose a
compliance burden on the economy
generally. Accordingly, it has been
determined that this rule is not a
‘‘significant regulatory action’’ under
any of the preceding criteria.
B. Review Under the Regulatory
Flexibility Act
Under the Regulatory Flexibility Act,
5 U.S.C. 601 et seq., as amended,
whenever an agency is required to
publish a notice of rule making for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effects of the rule on small
entities. Indian tribes are not considered
to be small entities for purposes of the
Regulatory Flexibility Act, and
consequently, no regulatory flexibility
analysis has been done.
This rule does not have significant
adverse effects on competition,
employment, investment, productivity,
innovation, or the ability of U.S. based
enterprises to compete with foreignbased enterprises because it concerns
only the Navajo Nation. Accordingly,
this regulation will not have an
economic impact on a substantial
number of small entities, and, therefore,

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no regulatory flexibility analysis has
been prepared.
C. Review Under the Small Business
Regulatory Enforcement Fairness Act
(SBREFA) of 1996
Under 5 U.S.C. 804(2), SBREFA, a
rule is major if OMB finds that it results
in:
a. An annual effect on the economy of
$100 million or more;
b. A major increase in costs or prices
for consumers, individual industries,
Federal, State, or local government
agencies, or geographic regions; or
c. Significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises.
This rule is not a major rule as
defined by section 804 of the SBREFA.
This rule is uniquely confined to the
Federal Government, individual Indians
and the Navajo Nation, thus, it will not
result in the expenditure by State, local
and tribal governments, in the aggregate,
or by the private sector, of $100 million
or more in any one year. This rule
provides regulatory guidance for grazing
permits on trust lands owned by
individual Indians and the Navajo
Nation.
D. Review Under the Unfunded
Mandates Reform Act
This rule would not impose unfunded
mandates as defined by the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4, March 22, 1995, 109 Stat. 48).
This rule will not result in the
expenditure by State, local and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year (2 U.S.C. 1532). The
impact of this rule is confined to grazing
permits on land held in trust for the
Navajo Nation. Accordingly, this
proposed rule will not result in the
expenditure of $100 million or more in
any one year.
E. Review Under Executive Order 12630
This rule does not have significant
‘‘takings’’ implications. Policies that
have taking implications do not include
actions affecting properties that are held
in trust by the United States. The NPL
grazing regulations provide specific
regulatory guidance on trust lands.
F. Review Under Executive Order 13211
On May 18, 2001, the President issued
Executive Order 13211 that speaks to
regulations that significantly affect
energy supply, distribution, and use.
The Executive Order requires agencies
to prepare Statements of Energy Effects
when undertaking certain actions. This

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Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations
rule is restricted to 25 CFR 161, NPL
Grazing Permits on lands held in trust
for individual Indians and tribes.
Mineral development on lands held in
trust for individual Indians and the
Navajo Nation are regulated under the
Indian Mineral Development Act.
Regulations for mineral development
are provided under a separate part in 25
CFR 211, 212 and 225. This proposed
implementation guidance is not
expected to significantly affect energy
supplies, distribution, or use. Therefore,
no Statement of Energy Effects has been
prepared.
G. Review Under Executive Order 12612
This rule does not have significant
Federalism effects because it pertains
solely to Federal-tribal relations and
will not interfere with the roles, rights,
and responsibilities of States. While this
proposed rule will impact tribal
governments, there is no federalism
impact on the trust relationship or
balance of power between the United
States government and the various tribal
governments affected by this
rulemaking. Therefore, in accordance
with Executive Order 13132, it is
determined that this rule will not have
sufficient federalism implications to
warrant the preparation of a federalism
assessment.

(4) Specifies the retroactive affect if
any;
(5) Adequately defines key terms; and
(6) Addresses other important issues
affecting clarity and general
draftsmanship.
Section 3(c) of Executive Order 12988
requires executive agencies to review
regulations in light of the applicable
standards in section 3(a) and section
3(b) to determine whether they are met
or it is unreasonable to meet on one or
more of them. This rule does not unduly
burden the judicial system and meets
the applicable standards provided in
sections 3(a) and 3(b)(2) of the Executive
Order 12988.

H. Review Under Executive Order 12988

I. Review Under the National
Environmental Policy Act (NEPA)
This rule is categorically excluded
from the preparation of an
environmental assessment or an
environmental impact statement under
the NEPA of 1969, 42 U.S.C. 4321, et
seq., because its environmental effects
are too broad, speculative, or conjectural
to lend themselves to meaningful
analysis and the Federal actions under
this rule will be subject at the time of
the action itself to the NEPA process,
either collectively or case-by-case.
Further, no extraordinary circumstances
exist to require preparation of an
environmental assessment or
environmental impact statement.

With respect to the review of existing
regulations and the promulgation of
new regulations, section 3(a) of the
Executive Order 12988, Civil Justice
Reform, 61 FR 4729, February 7, 1996,
imposes on executive agencies the
general duty to adhere to the following
requirements:
(1) Eliminate drafting errors and
ambiguity;
(2) Write regulations to minimize
litigation; and
(3) Provide a clear legal standard for
effective conduct rather than a general
standard and promote simplification
and burden reduction.
With regard to the review required by
section 3(a), section (b) of Executive
Order 12988 specifically requires that
executive agencies make every
reasonable effort to insure that the
regulations:
(1) Clearly specifies the preemptive
effect, if any;
(2) Clearly specifies any effect on
existing federal law or regulation;
(3) Provides a clear legal standard for
affecting conduct while promoting
simplification and burden reduction;

J. Review Under Executive Order 13175
Pursuant to Executive Order 13175 of
November 6, 2000, Consultation and
Coordination with Indian Tribal
Governments, the Department has
determined that because this rule will
uniquely affect tribal governments, it
will follow Department and
Administrative protocols in consulting
with tribal governments on rulemaking.
Consequently, tribal governments were
notified through the proposed
rulemaking published in the Federal
Register and through BIA field offices,
of the ramifications of this rule. This
enabled tribal officials and the affected
tribal constituency throughout the NPL
to have meaningful and timely input in
the development of this rule. This will
reinforce good intergovernmental
relations with the Navajo Nation and
better inform, educate and advise the
Navajo Nation on compliance
requirements of this rule. We consulted
with representatives of the Navajo
Nation during the formulation of this
rule. Representatives from the NavajoHopi Land Commission and Navajo

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58887

Nation Natural Resources Committee
met in consultation several times from
November 2002 to June of 2003 to draft
the proposed regulations. The
comments received from these
consultations were taken into
consideration in the formulation of this
rule. We also consulted with the Navajo
Nation in the formulation of this rule.
K. Review Under the Paperwork
Reduction Act
This rule requires an information
collection from 10 or more parties, and
therefore was subject to review under
the Paperwork Reduction Act of 1995
(Pub. L. 104–13). The information
collection regulates grazing permits and
the use of the Navajo Partitioned Lands.
The information collection will also
help protect the lands from overgrazing
and aid in restoring lands that have
been overgrazed. The information
collection involves 5,370 responses with
an hourly annual burden of 1227 hours
for an average burden of approximately
14 minutes. The respondents are not
required to keep records but many do as
part of their business. Responses are
given in order to obtain or retain a
benefit, namely, acquiring or keeping a
grazing permit as authorized by the
Navajo-Hopi Settlement Act of 1974 as
amended, by federal court decisions
(Healing v. Jones, 174 F. Supp. 211 (D.
Ariz. 1959) (Healing I), Healing v. Jones,
210 F. Supp. 126 (D. Ariz. 1962), and
Hopi Tribe v. Watt, 530 F. Supp. 1217
(D. Ariz. 1982), and Hopi Tribe v. Watt,
719 F. 2d 314 (9th Cir. 1983), and the
American Indian Agricultural Resource
Management Act (AIARMA), (107 Stat.
2011, 25 U.S.C. 3701 et seq.) as
amended. Interior submitted a request
for approval of the information request
which was approved. The OMB Control
Number is 1076–0162 and expires
January 31, 2007.
Comments on this information
collection can be made at any time and
sent to the Information Collection
Clearance Officer at 625 Herndon
Parkway, Herndon, VA 20170. Please
note that comments about the burden
are separate from comments on the rule.
If you wish to withhold personal
information, such as your name, you
must state this prominently at the
beginning of your comments. We will
honor your request to the extent that the
law allows.
The table showing the burden of the
information collection is included
below for your information.

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Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations
TABLE OF BURDEN FOR 25 CFR 161
Number of
respondents

CFR section
161.102
161.206
161.301
161.302
161.304
161.402
161.500
161.502
161.604
161.606
161.703
161.704
161.708
161.717
161.800
161.801
161.802

Number of annual responses

Hourly burden
per response
(hours)

Total annual
hourly burden

..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................

700
700
700
700
700
700
70
70
35
35
35
35
10
10
700
85
85

700
700
700
700
700
700
70
70
35
35
35
35
10
10
700
85
85

............................
1⁄2
............................
1⁄3
............................
1⁄3
1⁄3
............................
1⁄2
1⁄2
1⁄2
1⁄2
1⁄2
1
1⁄4
1⁄2
1

..............................
350
..............................
233
..............................
233
23
..............................
17.5
17.5
17.5
17.5
5
10
175
42.5
85

Totals ......................................................................................

700

5,370

............................

1,226.5

TABLE OF BURDEN FOR 25 CFR 161
Salary: $5.00 ×
total hourly burden = total hourly burden cost

CFR section

161.102
161.206
161.301
161.302
161.304
161.402
161.500
161.502
161.604
161.606
161.703
161.704
161.708
161.717
161.800
161.801
161.802

Federal burden
per response
(hours)

Total Federal annual burden hours

Salary: $18.52 ×
total hourly burden = total Federal burden cost

..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................
..........................................................................................

............................
$1,750
............................
1,165
............................
1,165
115
............................
87
87
87
88
25
50
875
213
425

12

⁄
⁄
1⁄4
1⁄4
1⁄4
1
1
1⁄4
1
1
1
1
1
2
1⁄4
1
1⁄2

350
175
175
175
175
700
70
17.5
35
35
35
35
10
20
212.5
85
42.5

$6,482
3,241
3,241
3,241
3,241
12,964
1,296
324
648
648
648
648
185
370
3,936
1,575
787

Totals ......................................................................................

6,132

............................

2,347.5

43,475

List of Subjects in 25 CFR Part 161

PART 161—NAVAJO PARTITIONED
LANDS GRAZING PERMITS

Grazing lands, Indians—lands,
Livestock.
Dated: July 29, 2005.
Michael D. Olsen,
Acting Principal Deputy Assistant Secretary—
Indian Affairs.

For the reasons stated in the preamble,
the Department of the Interior, Bureau
of Indian Affairs, is adding part 161 to
chapter I of title 25 of the Code of
Federal Regulations as follows.

■

14

Subpart A—Definitions, Authority, Purpose
and Scope
Sec.
161.1 What definitions do I need to know?
161.2 What are the Secretary’s authorities
under this part?
161.3 What is the purpose of this part?
161.4 To what lands does this part apply?
161.5 Can BIA waive the application of this
part?
161.6 Are there any other restrictions on
information given to BIA?
Subpart B—Tribal Policies and Laws
Pertaining to Permits
161.100 Do tribal laws apply to grazing
permits?

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161.101 How will tribal laws be enforced
on the Navajo Partitioned Lands?
161.102 What notifications are required that
tribal laws apply to grazing permits on
the Navajo Partitioned Lands?
Subpart C—General Provisions
161.200 Is an Indian agricultural resource
management plan required?
161.201 Is environmental compliance
required?
161.202 How are range units established?
161.203 Are range management plans
required?
161.204 How are carrying capacities and
stocking rates established?
161.205 How are range improvements
treated?
161.206 What must a permittee do to
protect livestock from exposure to
disease?

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Federal Register / Vol. 70, No. 194 / Friday, October 7, 2005 / Rules and Regulations
161.207 What livestock are authorized to
graze?
Subpart D—Permit Requirements
161.300 When is a permit needed to
authorize grazing use?
161.301 What will a grazing permit
contain?
161.302 What restrictions are placed on
grazing permits?
161.303 How long is a permit valid?
161.304 Must a permit be recorded?
161.305 When is a decision by BIA
regarding a permit effective?
161.306 When are permits effective?
161.307 When may a permittee commence
grazing on Navajo Partitioned Land?
161.308 Must a permittee comply with
standards of conduct if granted a permit?
Subpart E—Reissuance of Grazing Permits
161.400 What are the criteria for reissuing
grazing permits?
161.401 Will new permits be granted after
the initial reissuance of permits?
161.402 What are the procedures for
reissuing permits?
161.403 How are grazing permits allocated
within each range unit?
Subpart F—Modifying A Permit
161.500 May permits be transferred,
assigned or modified?
161.501 When will a permit modification
be effective?
161.502 Will a special land use require
permit modification?
Subpart G—Permit Violations
161.600 What permit violations are
addressed by this subpart?
161.601 How will BIA monitor permit
compliance?
161.602 Will my permit be canceled for
non-use?
161.603 Can mediation be used in the event
of a permit violation or dispute?
161.604 What happens if a permit violation
occurs?
161.605 What will a written notice of a
permit violation contain?
161.606 What will BIA do if the permitee
doesn’t cure a violation on time?
161.607 What appeal bond provisions apply
to permit cancellation decisions?
161.608 When will a permit cancellation be
effective?
161.609 Can BIA take emergency action if
the rangeland is threatened?
161.610 What will BIA do if livestock is not
removed when a permit expires or is
cancelled?
Subpart H—Trespass
161.700 What is trespass?
161.701 What is BIA’s trespass policy?
161.702 Who will enforce this subpart?
Notification
161.703 How are trespassers notified of a
trespass determination?
161.704 What can a permittee do if they
receive a trespass notice?
161.705 How long will a written trespass
notice remain in effect?

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Actions
161.706 What actions does BIA take against
trespassers?
161.707 When will BIA impound
unauthorized livestock or other
property?
161.708 How are trespassers notified of
impoundments?
161.709 What happens after unauthorized
livestock or other property are
impounded?
161.710 How can impounded livestock or
other property be redeemed?
161.711 How will BIA sell impounded
livestock or other property?
Penalties, Damages, and Costs
161.712 What are the penalties, damages,
and costs payable by trespassers?
161.713 How will BIA determine the
amount of damages to Navajo Partitioned
Lands?
161.714 How will BIA determine the costs
associated with enforcement of the
trespass?
161.715 What will BIA do if a trespasser
fails to pay penalties, damages and costs?
161.716 How are the proceeds from trespass
distributed?
161.717 What happens if BIA does not
collect enough money to satisfy the
penalty?
Subpart I—Concurrence/Appeals/
Amendments
161.800 How does the Navajo Nation
provide concurrence to BIA?
161.801 May decisions under this part be
appealed?
161.802 How will the Navajo Nation
recommend amendments to this part?
Authority: 25 U.S.C. 2; 5 U.S.C. 301; 25
U.S.C. 640d et seq.

Subpart A—Definitions, Authority,
Purpose, and Scope
§ 161.1
know?

What definitions do I need to

Agricultural Act means the American
Indians Agricultural Resource
Management Act (AIARMA) of
December 3, 1993 (107 Stat. 2011, 25
U.S.C. 3701 et seq.), and amended on
November 2, 1994 (108 Stat. 4572).
Agricultural resource management
plan means a 10-year plan developed
through the public review process
specifying the tribal management goals
and objectives developed for tribal
agricultural and grazing resources. Plans
developed and approved under
AIARMA will govern the management
and administration of Indian
agricultural resources and Indian
agricultural lands by BIA and Indian
tribal governments.
Allocation means the number of
animal units authorized in each grazing
permit.
Animal Unit (AU) means one adult
cow and her 6-month-old calf or the
equivalent thereof based on comparable

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58889

forage consumption. Thus as defined in
the following:
(1) One adult sheep or goat is
equivalent to one-fifth (0.20) of an AU;
(2) One adult horse, mule, or burro is
equivalent to one and one quarter (1.25)
AU; or
(3) One adult llama is equivalent to
three-fifths (0.60) of an AU.
Appeal means a written request for
review of an action or the inaction of an
official of the Bureau of Indian Affairs
that is claimed to adversely affect the
interested party making the request.
Appeal Bond means a bond posted
upon filing of an appeal that provides a
security or guaranty if an appeal creates
a delay in implementing our decision
that could cause a significant and
measurable financial loss to another
party.
BIA means the Bureau of Indian
Affairs within the Department of the
Interior.
Bond means security for the
performance of certain permit
obligations, as furnished by the
permittee, or a guaranty of such
performance as furnished by a thirdparty surety.
Business day means Monday through
Friday, excluding federally or tribally
recognized holidays.
Carrying capacity means the number
of livestock and/or wildlife, which may
be sustained on a management unit
compatible with management objectives
for the unit.
Concurrence means the written
agreement of the Navajo Nation with a
policy, action, decision or finding
submitted for consideration by BIA.
Conservation practice refers to any
management measure taken to maintain
or improve the condition, productivity,
sustainability, or usability of targeted
resources.
Customary Use Area refers to an area
to which an individual traditionally
confined his or her traditional grazing
use and occupancy and/or an area
traditionally inhabited by his or her
ancestors.
Day means a calendar day, unless
otherwise specified.
Enumeration means the list of persons
living on and identified improvements
located within the Former Joint Use
Area obtained through interviews
conducted by BIA in 1974 and 1975.
Former Joint Use Area means the area
that was divided between the Navajo
Nation and the Hopi Tribe by the
Judgment of Partition issued April 18,
1979, by the United States District Court
for the District of Arizona. This area was
established by the United States District
Court for the District of Arizona in
Healing v. Jones, 210 F. Supp. 125

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(1962), aff’d. 373 U.S. 758 (1963) and is
located:
(1) Inside the Executive Order area
(Executive Order of December 16, 1882);
and
(2) Outside Land Management District
6.
Grazing Committee means the District
Grazing Committee established by the
Navajo Nation Council, that is
responsible for enforcing and
implementing tribal grazing regulations
on the Navajo Partitioned Lands.
Grazing Permit means a revocable
privilege granted in writing and limited
to entering on and utilizing forage by
domestic livestock on a specified range
unit. The term as used herein shall
include authorizations issued to enable
the crossing or trailing of domestic
livestock within an assigned range unit.
Historical Land Use see Customary
Use Area.
Improvement means any structure or
excavation to facilitate management of
the range for livestock, such as: Fences,
cattle guards, spring developments,
windmills, stock ponds, and corrals.
Livestock means horses, cattle, sheep,
goats, mules, burros, donkeys, and
llamas.
Management Unit is a subdivision of
a geographic area where unique
resource conditions, goals, concerns, or
opportunities require specific and
separate management planning.
Navajo Nation means all offices/
entities/programs under the direct
jurisdiction of the Navajo Nation
Government.
Navajo Partitioned Lands (NPL)
means that portion of the Former Joint
Use Area awarded to the Navajo Nation
under the Judgment of Partition issued
April 18, 1979, by the United States
District Court for the District of Arizona,
and now a separate administrative
entity within the Navajo Indian
Reservation.
Non-Concurrence means the official
written denial of approval by the Navajo
Nation of a policy, action, decision, or
finding submitted for consideration by
BIA.
Range management plan is a
statement of management objectives for
grazing, farming, or other agriculture
management including contract
stipulations defining required uses,
operations, and improvements.
Range Unit means a tract of land
designated as a separate management
subdivision for the administration of
grazing.
Resident means a person who lives on
the Navajo Partitioned Lands.
Resources Committee means the
oversight committee for the Division of
Natural Resources within the Navajo

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Nation Government. The Resources
Committee of the Navajo Nation Council
to whom authority is delegated to
exercise the powers of the Navajo
Nation with regards to the range
development and grazing management
of the Navajo Partitioned Lands.
Secretary means the Secretary of the
Interior or his or her designated
representative.
Settlement Act means the Navajo
Hopi Settlement Act of December 22,
1974 (88 Stat. 1712, 25 U.S.C. 64d et
seq., as amended).
Sheep Unit means an adult ewe with
un-weaned lamb. It is also the basic unit
in which forage allocations are
expressed.
Special land use means all land usage
for purposes other than for grazing
withdrawn in accordance with Navajo
Nation laws, Federal laws, and BIA
policies and procedures, such as but not
limited to: Housing permits, farm leases,
governmental facilities, rights-of-way,
schools, parks, business leases, etc.
Stocking rate means the maximum
number of sheep units, or animal units
authorized to graze on a particular
pasture, management unit, or range unit
during a specified period of time.
Trespass means any unauthorized
occupancy, grazing, use of, or action on
the Navajo Partitioned Lands.
§ 161.2 What are the Secretary’s
authorities under this part?

(a) Under Section 640d–9(e) of the
Settlement Act, lands partitioned under
the Settlement Act are subject to the
jurisdiction of the tribe to whom
partitioned. The laws of the tribe apply
to the partitioned lands as in paragraphs
(a)(1) and (a)(2) of this section.
(1) Effective October 6, 1980:
(i) All conservation practices on the
Navajo Partitioned Lands, including
control and range restoration activities,
must be coordinated and executed with
the concurrence of the Navajo Nation;
and
(ii) All grazing and range restoration
matters on the Navajo Reservation lands
must be administered by BIA, under
applicable laws and regulations.
(2) Effective April 18, 1981, the
Navajo Nation has jurisdiction and
authority over any lands partitioned to
it and over all persons on these lands.
This jurisdiction and authority apply:
(i) To the same extent as is applicable
to those other portions of the Navajo
reservation; and
(ii) Notwithstanding any provision of
law to the contrary, except where there
is a conflict with the laws and
regulations referred to in paragraph (a)
of this section.
(b) Under the Agricultural Act, the
Secretary is authorized to:

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(1) Carry out the trust responsibility of
the United States and promote Indian
tribal self-determination by providing
for management of Indian agricultural
lands and renewable resources
consistent with tribal goals and
priorities for conservation, multiple use,
and sustained yield;
(2) Take part in managing Indian
agricultural lands, with the
participation of the land’s beneficial
owners, in a manner consistent with the
Secretary’s trust responsibility and with
the objectives of the beneficial owners;
(3) Provide for the development and
management of Indian agricultural
lands; and
(4) Improve the expertise and
technical abilities of Indian tribes and
their members by increasing the
educational and training opportunities
available to Indian people and
communities in the practical, technical,
and professional aspects of agricultural
and land management.
§ 161.3

What is the purpose of this part?

The purpose of this part is to describe
the goals and objectives of grazing
management on the Navajo Partitioned
Lands:
(a) To respect and recognize the
importance that livestock and land have
in sustaining Navajo tradition and
culture.
(b) Provide resources to rehabilitate
range resources in the preservation of
forage, soil, and water on the Navajo
Partitioned Lands;
(c) Monitor the recovery of those
resources where they have deteriorated;
(d) Protect, conserve, utilize, and
maintain the highest productive
potential on the Navajo Partitioned
Lands through the application of sound
conservation practices and techniques.
These practices and techniques will be
applied to planning, development,
inventorying, classification, and
management of agricultural resources;
(e) Increase production and expand
the diversity and availability of
agricultural products for subsistence,
income, and employment of Indians,
through the development of agricultural
resources on the Navajo Partitioned
Lands;
(f) Manage agricultural resources
consistent with integrated resource
management plans in order to protect
and maintain other values such as
wildlife, fisheries, cultural resources,
recreation and to regulate water runoff
and minimize soil erosion;
(g) Enable the Navajo Nation to
maximize the potential benefits
available to its members from their
lands by providing technical assistance,
training, and education in conservation

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practices, management and economics
of agribusiness, sources and use of
credit and marketing of agricultural
products, and other applicable subject
areas;
(h) Develop the Navajo Partitioned
Lands to promote self-sustaining
communities; and
(i) Assist the Navajo Nation with
permitting the Navajo Partitioned
Lands, consistent with prudent
management and conservation practices,
and community goals as expressed in
the tribal management plans and
appropriate tribal ordinances.
§ 161.4
apply?

To what lands does this part

The grazing regulations in this part
apply to the Navajo Partitioned Lands
within the boundaries of the Navajo
Indian Reservation held in trust by the
United States for the Navajo Nation.
Contiguous areas outside of the Navajo
Partitioned Lands may be included
under this part for management
purposes by BIA in consultation with
the affected permittees and other
affected land users, and with the
concurrence of the Resources
Committee. Other affected land users
include those holding approved
assignments, permits, leases, and rights
of way for activities such as: home sites,
farm plots, roads, utilities, businesses,
and schools.
§ 161.5 Can BIA waive the application of
this part?

Yes. If a provision of this part
conflicts with the objectives of the
agricultural resource management plan
provided for in § 161.200, or with a
tribal law, BIA may waive the
application of this part unless the
waiver would either:
(a) Constitute a violation of a federal
statute or judicial decision; or
(b) Conflict with BIA’s general trust
responsibility under federal law.
§ 161.6 Are there any other restrictions on
information given to BIA?

Information that the BIA collects in
connection with permits for NPL in
sections 161.102, 161.206, 161.301,
161.302, 161.304, 161.402, 161.500,
161.502, 161.604, 161.606, 161.703,
161.704, 161.708, 161.717, 161.800,
161.801, and 161.802 have been
reviewed and approved by the Office of
Management and Budget. The OMB
Control Number assigned is 1076–0162.
Please note that a federal agency may
not conduct or sponsor, and you are not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.

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Subpart B—Tribal Policies and Laws
Pertaining to Permits

decision or conflict with the Secretary’s
trust responsibility under federal law.

§ 161.100
permits?

§ 161.102 What notifications are required
that tribal laws apply to grazing permits on
the Navajo Partitioned Lands?

Do tribal laws apply to grazing

Navajo Nation laws generally apply to
land under the jurisdiction of the
Navajo Nation, except to the extent that
those Navajo Nation laws are
inconsistent with this part or other
applicable federal law. This part may be
superseded or modified by Navajo
Nation laws with Secretarial approval,
however, so long as:
(a) The Navajo Nation laws are
consistent with the enacting Navajo
Nation’s governing documents;
(b) The Navajo Nation has notified
BIA of the superseding or modifying
effect of the Navajo Nation laws;
(c) The superseding or modifying of
the regulation would not violate a
federal statute or judicial decision, or
conflict with the Secretary’s general
trust responsibility under federal law;
and
(d) The superseding or modifying of
the regulation applies only to Navajo
Partitioned Lands.
§ 161.101 How will tribal laws be enforced
on the Navajo Partitioned Lands?

(a) Unless prohibited by federal law,
BIA will recognize and comply with
tribal laws regulating activities on the
Navajo Partitioned Lands, including
tribal laws relating to land use,
environmental protection, and historic
or cultural preservation.
(b) While the Navajo Nation is
primarily responsible for enforcing
tribal laws pertaining to the Navajo
Partitioned Lands, BIA will:
(1) Assist in the enforcement of
Navajo Nation laws;
(2) Provide notice of Navajo Nation
laws to persons or entities undertaking
activities on the Navajo Partitioned
Lands; and
(3) Require appropriate federal
officials to appear in tribal forums when
requested by the tribe, so long as the
appearance would not:
(i) Be inconsistent with the
restrictions on employee testimony set
forth at 43 CFR part 2, subpart E;
(ii) Constitute a waiver of the
sovereign immunity of the United
States; or
(iii) Authorize or result in a review of
(BIA) actions by the tribal court.
(c) Where the provisions in this
subpart are inconsistent with a Navajo
Nation law, but the provisions cannot be
superseded or modified by the Navajo
Nation laws under § 161.5, BIA may
waive the provisions under part 1 of 25
CFR, so long as the new waiver does not
violate a federal statute or judicial

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(a) The Navajo Nation must provide
BIA with an official copy of any tribal
law or tribal policy that relates to this
part. The Navajo Nation must notify BIA
of the content and effective dates of
tribal laws.
(b) BIA will then notify affected
permittees of the effect of the Navajo
Nation law on their grazing permits. BIA
will:
(1) Provide individual written notice;
or
(2) Post public notice. This notice will
be posted at the tribal community
building, U.S. Post Office, announced
on local radio station, and/or published
in the local newspaper nearest to the
permitted Navajo Partitioned Lands
where activities are occurring.
Subpart C—General Provisions
§ 161.200 Is an Indian agricultural
resource management plan required?

(a) Yes, Navajo Partitioned Lands
must be managed in accordance with
the goals and objectives in the
agricultural resource management plan
developed by the Navajo Nation, or by
BIA in close consultation with the
Navajo Nation, under the Agricultural
Act.
(b) The 10-year agricultural resource
management and monitoring plan must
be developed through public meetings
and completed within 3 years of the
initiation of the planning activity. The
plan must be based on the public
meeting records and existing survey
documents, reports, and other research
from Federal agencies, tribal community
colleges, and land grant universities.
When completed, the plan must:
(1) Determine available agricultural
resources;
(2) Identify specific tribal agricultural
resource goals and objectives;
(3) Establish management objectives
for the resources;
(4) Define critical values of the tribe
and its members and provide identified
resource management objectives; and
(5) Identify actions to be taken to
reach established objectives.
(c) Where the provisions in this
subpart are inconsistent with the Navajo
Nation’s agricultural resource
management plan, the Secretary may
waive the provisions under part 1 of this
title, so long as the waiver does not
violate a federal statute or judicial
decision or conflict with the Secretary’s
trust responsibility under federal law.

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§ 161.201 Is environmental compliance
required?

Actions taken by BIA under this part
must comply with the National
Environmental Policy Act of 1969, 42
U.S.C. 4321 et seq., applicable
provisions of the Council on
Environmental Quality, 40 CFR part
1500, and applicable tribal laws and
provisions of the Navajo Nation
Environmental Policy Act CAP–47–95,
where the tribal laws and provisions do
not violate a federal or judicial decision
or conflict with the Secretary’s trust
responsibility under federal law.
§ 161.202 How are range units
established?

(a) BIA, with the concurrence of the
Navajo Nation, will establish range units
on the Navajo Partitioned Lands to
provide unified areas for which range
management plans can be developed to
improve and maintain soil and forage
resources. Physical land features,
watersheds, drainage patterns,
vegetation, soil, resident concentration,
problem areas, historical land use
patterns, chapter boundaries, special
land uses and comprehensive land use
planning will be considered in the
determination of range unit boundaries.
(b) BIA may modify range unit
boundaries with the concurrence of the
Navajo Nation. This may include small
and/or isolated portions of Navajo
Partitioned Lands contiguous to Navajo
tribal lands in order to develop more
efficient land management.
§ 161.203 Are range management plans
required?

Yes. BIA will:
(a) Consult with the Navajo Nation in
planning conservation practices,
including grazing control and range
restoration activities for the Navajo
Partitioned Lands.
(b) Develop range management plans
with the concurrence of the Navajo
Nation.
(c) Approve the range management
plans, after concurrence with the Navajo
Nation, and the implementation of the
plan may begin immediately. The plan
will address, but is not limited to, the
following issues:
(1) Goals for improving vegetative
productivity and diversity;
(2) Stocking rates;
(3) Grazing schedules;
(4) Wildlife management;
(5) Needs assessment for range and
livestock improvements;
(6) Schedule for operation and
maintenance of existing range
improvements and development for
cooperative funded projects;
(7) Cooperation in the implementation
of range studies;

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(8) Control of livestock diseases and
parasites;
(9) Fencing or other structures
necessary to implement any of the other
provisions in the range management
plan;
(10) Special land uses; and
(11) Water development and
management.
§ 161.204 How are carrying capacities and
stocking rates established?

(a) BIA, with the concurrence of the
Navajo Nation, will prescribe, review
and adjust the carrying capacity of each
range unit by determining the number of
livestock, and/or wildlife, that can be
grazed on the Navajo Partitioned Lands
without inducing damage to vegetation
or related resources on each range unit
and the season or seasons of use to
achieve the objectives of the agricultural
resource management plan and range
unit management plan.
(b) BIA, with the concurrence of the
Navajo Nation, will establish the
stocking rate of each range or
management unit. The stocking rate will
be based on forage production, range
utilization, the application of land
management practices, and range
improvements in place to achieve
uniformity of grazing under sustained
yield management principles on each
range or management unit.
(c) BIA will review the carrying
capacity of the grazing units on a
continuing basis and, in consultation
with the Grazing Committee and
affected permittees, adjust the stocking
rate for each range or management unit
as conditions warrant.
(d) Any adjustments in stocking rates
will be applied equally to each
permittee within the management unit
requiring adjustment.
§ 161.205
treated?

How are range improvements

(a) Improvements placed on the
Navajo Partitioned Lands will be
considered affixed to the land unless
specifically exempted in the permit. No
improvement may be constructed or
removed from Navajo Partitioned Lands
without the written consent of BIA and
the Navajo Nation.
(b) Before undertaking an
improvement, BIA, Navajo Nation and
permittee will negotiate who will
complete and maintain improvements.
The improvement agreement will be
reflected in the permit.
§ 161.206 What must a permittee do to
protect livestock from exposure to disease?

In accordance with applicable law,
permittees must:
(a) Vaccinate livestock;

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(b) Treat all livestock exposed to or
infected with contagious or infectious
diseases; and
(c) Restrict the movement of exposed
or infected livestock.
§ 161. 207
graze?

What livestock are authorized to

The following livestock are
authorized to graze on the Navajo
Partitioned Lands: horses, cattle, sheep,
goats, mules, burros, donkeys, and
llamas.
Subpart D—Permit Requirements
§ 161.300 When is a permit needed to
authorize grazing use?

Unless otherwise provided for in this
part, any person or legal entity,
including an independent legal entity
owned and operated by the Navajo
Nation, must obtain a permit under this
part before using Navajo Partitioned
Land for grazing purposes.
§ 161.301
contain?

What will a grazing permit

(a) All grazing permits will contain
the following provisions:
(1) Name of permit holder;
(2) Range management plan
requirements;
(3) Applicable stocking rate;
(4) Range unit number and
description of the permitted area;
(5) Animal identification
requirements (i.e., brand, microchip,
freeze brand, earmark, tattoo, etc.);
(6) Term of permit (including
beginning and ending dates of the term
allowed, as well as an option to renew,
or extend);
(7) A provision stating that the
permittee agrees that he or she will not
use, cause, or allow to be used any part
of the permitted area for any unlawful
conduct or purpose;
(8) A provision stating that the permit
authorizes no other privilege than
grazing use;
(9) A provision stating that no person
is allowed to hold a grazing permit in
more than one range unit of the Navajo
Partitioned Lands, unless the customary
use area extends beyond the range unit
boundary;
(10) A provision reserving a right of
entry by BIA and the Navajo Nation for
range survey, inventory and inspection
or compliance purposes;
(11) A provision prohibiting the
creation of a nuisance, any illegal
activity, and negligent use or waste of
resources;
(12) A provision stating how trespass
proceeds are to be distributed;
(13) A provision stating whether
mediation will be used in the event of
a permit violation; and

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(14) A provision stating that the
permit cannot be subdivided once it has
been issued.
(b) Grazing permits will contain any
other provision that in the discretion of
BIA with the concurrence of the Navajo
Nation is necessary to protect the land
and/or resources.
(c) Grazing permits containing any
special land use authorized under
§ 161.503 of this part must be included
on the permit.
§ 161.302 What restrictions are placed on
grazing permits?

Only a grazing permit issued under
this part authorizes the grazing of
livestock within the Navajo Partitioned
Lands. Grazing permits are subject to
the following restrictions:
(a) Grazing permits should not be
issued for less than 2 animal units (10
sheep units) or exceed 70 animal units
(350 sheep units). However, all grazing
permits issued before the adoption of
this regulation will be honored and
reissued with an adjusted stocking rate
if the permittee meets the eligibility and
priority criteria found in § 161.400 of
this part, and only if the carrying
capacity and stocking rate as
determined under §§ 161.204 and
161.403 allows.
(b) A grazing permit will be issued in
the name of one individual.
(c) Only two horses will be permitted
on a grazing permit.
(d) Grazing permits may contain
additional conditions authorized by
Federal law or Navajo Nation law.
(e) A state/tribal brand only identifies
the owner of the livestock, but does not
authorize the grazing of any livestock
within the Navajo Partitioned Lands.
(f) A permit cannot be subdivided
once it has been issued.
§ 161.303

How long is a permit valid?

After its initial issuance, each grazing
permit is valid for one year beginning
on the following January 1. All permits
will be automatically renewed annually
if the permittee is in compliance with
all applicable laws including tallies and
permit requirements.
§ 161.304

Must a permit be recorded?

A permit must be recorded by BIA
following approval under this subpart.
§ 161.305 When is a decision by BIA
regarding a permit effective?

BIA approval of a permit will be
effective immediately upon signature,
notwithstanding any appeal, which may
be filed under part 2 of this title. Copies
of the approved permit will be provided
to the permittee and made available to
the Navajo Nation upon request.

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§ 161.306

When are permits effective?

Unless otherwise provided in the
permit, a permit will be effective on the
date on which BIA approves the permit.
§ 161.307 When may a permittee
commence grazing on Navajo Partitioned
Land?

The permittee may graze on Navajo
Partitioned Land on the date specified
in the permit as the beginning date of
the term, but not before BIA approves
the permit.
§ 161.308 Must a permittee comply with
standards of conduct if granted a permit?

Yes. Permittees are expected to:
(a) Conduct grazing operations in
accordance with the principles of
sustained yield management,
agricultural resource management
planning, sound conservation practices,
and other community goals as expressed
in Navajo Nation laws, agricultural
resource management plans, and similar
sources.
(b) Comply with all applicable laws,
ordinances, rules, provisions, and other
legal requirements. Permittee must also
pay all applicable penalties that may be
assessed for non-compliance.
(c) Fulfill all financial permit
obligations owed to the Navajo Nation
and the United States.
(d) Conduct only those activities
authorized by the permit.
Subpart E—Reissuance of Grazing
Permits
§ 161.400 What are the criteria for
reissuing grazing permits?

(a) The Navajo Nation may prescribe
eligibility requirements for grazing
allocations within 180 days following
the effective date of this part. BIA will
prescribe the eligibility requirements
after expiration of the 180-day period if
the Navajo Nation does not prescribe
eligibility requirements, or if
satisfactory action is not taken by the
Navajo Nation.
(b) With the written concurrence of
the Navajo Nation, BIA will prescribe
the following eligibility requirements,
where only those applicants who meet
the following criteria are eligible to
receive permits to graze livestock:
(1) Those who had grazing permits on
Navajo Partitioned Lands under 25 CFR
part 167 (formerly part 152), and whose
permits were canceled on October 14,
1973;
(2) Those who are listed in the 1974
and 1975 Former Joint Use Area
enumeration;
(3) Those who are current residents
on Navajo Partitioned Lands; and
(4) Those who have a customary use
area on Navajo Partitioned Lands.

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(c) Permits re-issued to applicants
under this section may be granted by
BIA based on the following priority
criteria:
(1) The first priority will go to
individuals currently the age of 65 or
older; and
(2) The second priority will go to
individuals under the age of 65.
(d) Upon the recommendation of the
NPL District Grazing Committee and
Resources Committee, BIA or Navajo
Nation will have authority to waive one
of the eligibility or priority criteria.
§ 161.401 Will new permits be granted
after the initial reissuance of permits?

(a) Following the initial reissuance of
permits under § 161.400, the Navajo
Nation can grant new permits, subject to
BIA approval, if:
(1) Additional permits become
available; and
(2) The carrying capacity and stocking
rates as determined under §§ 161.204
and 161.403 allow.
(b) The Navajo Nation must inform
BIA if it grants any permits under
paragraph (a) of this section.
§ 161.402 What are the procedures for
reissuing permits?

BIA, with the concurrence of the
Navajo Nation, will reissue grazing
permits only to individuals that meet
the eligibility requirements in § 161.400.
Responsibilities for reissuance of
grazing permits are as follows:
(a) BIA will develop a complete list
consisting of all former permittees
whose permits were cancelled and the
number of animal units previously
authorized in prior grazing permits.
This list will be provided to the Grazing
Committee and Resources Committee
for their review. BIA will also provide
the Grazing Committee and Resources
Committee with the current carrying
capacity and stocking rate for each range
unit within the Navajo Partitioned
Lands, as determined under § 161.204.
(b) Within 90 days of receipt, the
Grazing Committee will review the list
developed under § 161.402(a), and make
recommendations to the Resources
Committee for the granting of grazing
permits according to the eligibility and
priority criteria in § 161.400.
(c) If the Grazing Committee fails to
make its recommendation to the
Resources Committee within 90 days
after receiving the list of potential
permittees, BIA will submit its
recommendations to the Resources
Committee.
(d) The Resources Committee will
review and concur with the list of
proposed permit grantees, and then
forward a final list to BIA for the

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reissuance of grazing permits. If the
Resources Committee does not concur,
the procedures outlined in § 161.800
will govern.
(e) The final determination list of
eligible permittees will be published.
Permits will not be issued sooner than
90 days following publication of the
final list.

from the permit, and grazing cannot take
place on that part of the range unit.
Subpart G—Permit Violations
§ 161.600 What permit violations are
addressed by this subpart?

This subpart addresses violations of
permit provisions other than trespass.
Trespass is addressed under subpart H.

§ 161.403 How are grazing permits
allocated within each range unit?

§ 161.601 How will BIA monitor permit
compliance?

(a) Initial allocation of the number of
animal units authorized in each grazing
permit will be determined by
considering the number of animal units
previously authorized in prior grazing
permits and the current authorized
stocking rate on a given range unit.
(b) Grazing permit allocations may
vary from range unit to range unit
depending on the stocking rate of each
unit, the range management plan, and
the number of eligible grazing
permittees in the unit.

Unless the permit provides otherwise,
BIA and/or Navajo Nation may enter the
range unit at any reasonable time,
without prior notice, to protect the
interests of the Navajo Nation and
ensure that the permittee is in
compliance with the operating
requirements of the permit.

Subpart F—Modifying A Permit
§ 161.500 May permits be transferred,
assigned or modified?

(a) Grazing permits may be
transferred, assigned, or modified only
as provided in this section. Permits may
only be transferred or assigned as a
single permit under Navajo Nation
procedures and with the approval of
BIA. Permittees must reside within the
same range unit as the original
permittee.
(b) Permits may be transferred,
assigned, or modified with the written
consent of the permittee, District
Grazing Committee and/or Resources
Committee and approved by BIA.
(c) BIA must record each transfer,
assignment, or modification that it
approves under a permit.
§ 161.501 When will a permit modification
be effective?

BIA approval of a transfer,
assignment, or modification under a
permit will be effective immediately,
notwithstanding any appeal, which may
be filed under part 2 of this title. Copies
of approved documents will be
provided to the permittee and made
available to the Navajo Nation upon
request.
§ 161.502 Will a special land use require
permit modification?

Yes. When the Navajo Nation and BIA
approve a special land use, the grazing
permit will be modified to reflect the
change in available forage. If a special
land use is inconsistent with grazing
activities authorized in the permit, the
special land use area will be withdrawn

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§ 161.602 Will my permit be canceled for
non-use?

(a) If a grazing permit is not used by
the permittee for a 2-year period, BIA
may cancel the permit upon the
recommendation of the Grazing
Committee and with the concurrence of
the Resources Committee under
§ 161.606(c). Non-use consists of, but is
not limited to, absence of livestock on
the range unit, and/or abandonment of
a permittee’s grazing permit.
(b) Unused grazing permits or
portions of grazing permits that are set
aside for range recovery will not be
cancelled for non-use.
§ 161.603 Can mediation be used in the
event of a permit violation or dispute?

A permit may provide for permit
disputes or violations to be resolved
with the District Grazing Committee
through mediation.
(a) The District Grazing Committee
will conduct the mediation before the
Navajo Nation’s appropriate hearing
body, before BIA invokes any
cancellation remedies.
(b) Conducting the mediation may
substitute for permit cancellation.
However, BIA retains the authority to
cancel the permit under § 161.606.
(c) The Navajo Nation’s appropriate
hearing body decision will be final,
unless it is appealed to the Navajo
Nation Supreme Court on a question of
law. BIA will defer to any ongoing
proceedings, as appropriate, in deciding
whether to exercise any of the remedies
available to BIA under § 161.606.
§ 161.604 What happens if a permit
violation occurs?

(a) If the Resources Committee
notifies BIA that a specific permit
violation has occurred, BIA will initiate
an appropriate investigation within 5
business days of that notification.

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(b) Unless otherwise provided under
tribal law, when BIA has reason to
believe that a permit violation has
occurred, BIA or the authorized tribal
representative will provide written
notice to the permittee within 5
business days.
§ 161.605 What will a written notice of a
permit violation contain?

The written notice of a permit
violation will provide the permittee
with 10 days from the receipt of the
written notice to:
(a) Cure the permit violation and
notify BIA that the violation is cured;
(b) Explain why BIA should not
cancel the permit;
(c) Request in writing additional time
to complete corrective actions. If
additional time is granted, BIA may
require that certain actions be taken
immediately; or
(d) Request mediation under
§ 161.603.
§ 161.606 What will BIA do if the permittee
doesn’t cure a violation on time?

(a) If the permittee does not cure a
violation within the required time
period, or if the violation is not referred
to District Grazing Committee for
mediation, BIA will consult with the
Navajo Nation, as appropriate, and
determine whether:
(1) The permit may be canceled by
BIA under paragraph (c) of this section
and §§ 161.607 through 161.608;
(2) BIA may invoke any other
remedies available to BIA under the
permit;
(3) The Navajo Nation may invoke any
remedies available to them under the
permit; or
(4) The permittee may be granted
additional time in which to cure the
violation.
(b) If BIA grants a permittee a time
extension to cure a violation, the
permittee must proceed diligently to
complete the necessary corrective
actions within a reasonable or specified
time from the date on which the
extension is granted.
(c) If BIA cancels the permit, BIA will
send the permittee and the District
Grazing Committee a written notice of
cancellation within 5 business days of
the decision. BIA will also provide
actual or constructive notice of the
cancellation to the Navajo Nation, as
appropriate. The written notice of
cancellation will:
(1) Explain the grounds for
cancellation;
(2) Notify the permittee of the amount
of any unpaid fees and other financial
obligations due under the permit;
(3) Notify the permittee of his or her
right to appeal under 25 CFR part 2 of

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this title, as modified by § 161.607,
including the amount of any appeal
bond that must be posted with an
appeal of the cancellation decision; and
(4) Order the permittee to cease
grazing livestock on the next
anniversary date of the grazing permit or
180 days following the receipt of the
written notice of cancellation,
whichever is sooner.
§ 161.607 What appeal bond provisions
apply to permit cancellation decisions?

(a) The appeal bond provisions in
§ 2.5 of part 2 of this title will not apply
to appeals from permit cancellation
decision. Instead, when BIA decides to
cancel a permit, BIA may require the
permittee to post an appeal bond with
an appeal of the cancellation decision.
The requirement to post an appeal bond
will apply in addition to all of the other
requirements in part 2 of this title.
(b) An appeal bond should be set in
an amount necessary to protect the
Navajo Nation against financial losses
that will likely result from the delay
caused by an appeal. Appeal bond
requirements will not be separately
appealable, but may be contested during
the appeal of the permit cancellation
decision.
§ 161.608 When will a permit cancellation
be effective?

A cancellation decision involving a
permit will not be effective for 30 days
after the permittee receives a written
notice of cancellation from BIA. The
cancellation decision will remain
ineffective if the permittee files an
appeal under § 161.607 and part 2 of
this title, unless the decision is made
immediately effective under part 2.
While a cancellation decision is
ineffective, the permittee must continue
to comply with the other terms of the
permit. If an appeal is not filed in
accordance with § 161.607 and part 2 of
this title, the cancellation decision will
be effective on the 31st day after the
permittee receives the written notice of
cancellation from BIA.
§ 161.609 Can BIA take emergency action
if the rangeland is threatened?

Yes, if a permittee or any other party
causes or threatens to cause immediate,
significant and irreparable harm to the
Navajo Nation land during the term of
a permit, BIA will take appropriate
emergency action. Emergency action
may include trespass proceedings under
subpart H, or judicial action seeking
immediate cessation of the activity
resulting in or threatening harm.
Reasonable efforts will be made to
notify the Navajo Nation, either before
or after the emergency action is taken.

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§ 161.610 What will BIA do if livestock is
not removed when a permit expires or is
cancelled?

If the livestock is not removed after
the expiration or cancellation of a
permit, BIA will treat the unauthorized
use as a trespass. BIA may remove the
livestock on behalf of the Navajo Nation,
and pursue any additional remedies
available under applicable law,
including the assessment of civil
penalties and costs under subpart H.
Subpart H—Trespass
§ 161.700

What is trespass?

Under this part, trespass is any
unauthorized use of, or action on,
Navajo partitioned grazing lands.
§ 161.701

What is BIA’s trespass policy?

BIA will:
(a) Investigate accidental, willful,
and/or incidental trespass on Navajo
Partitioned Lands;
(b) Respond to alleged trespass in a
prompt, efficient manner;
(c) Assess trespass penalties for the
value of products used or removed, cost
of damage to the Navajo Partitioned
Lands, and enforcement costs incurred
as a consequence of the trespass; and
(d) Ensure, to the extent possible, that
damage to Navajo Partitioned Lands
resulting from trespass is rehabilitated
and stabilized at the expense of the
trespasser.
§ 161.702

Who will enforce this subpart?

(a) BIA enforces the provisions of this
subpart. If the Navajo Nation adopts the
provisions of this subpart, the Navajo
Nation will have concurrent jurisdiction
to enforce this subpart. Additionally, if
the Navajo Nation so requests, BIA will
defer to tribal prosecution of trespass on
Navajo Partitioned Lands.
(b) Nothing in this subpart will be
construed to diminish the sovereign
authority of the Navajo Nation with
respect to trespass.
Notification
§ 161.703 How are trespassers notified of
a trespass determination?

(a) Unless otherwise provided under
tribal law, when BIA has reason to
believe that a trespass on Navajo
Partitioned Lands has occurred, BIA or
the authorized tribal representative will
provide written notice within 5 business
days to:
(1) The alleged trespasser;
(2) The possessor of trespass property;
and
(3) Any known lien holder.
(b) The written notice under
paragraph (a) of this section will include
the following:

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(1) The basis for the trespass
determination;
(2) A legal description of where the
trespass occurred;
(3) A verification of ownership of
unauthorized property (e.g., brands in
the State Brand Book for cases of
livestock trespass, if applicable);
(4) Corrective actions that must be
taken;
(5) Time frames for taking the
corrective actions;
(6) Potential consequences and
penalties for failure to take corrective
action; and
(7) A statement that unauthorized
livestock or other property may not be
removed or disposed of unless
authorized by BIA under paragraph
(b)(4) of this section.
(c) If BIA determines that the alleged
trespasser or possessor of trespass
property is unknown or refuses delivery
of the written notice, a public trespass
notice will be posted at the tribal
community building, U.S. Post Office,
and published in the local newspaper
nearest to the Indian agricultural lands
where the trespass is occurring.
(d) Trespass notices under this
subpart are not subject to appeal under
part 2 of this title.
§ 161.704 What can a permittee do if they
receive a trespass notice?

The trespasser will within the time
frame specified in the notice:
(a) Comply with the ordered
corrective actions; or
(b) Contact BIA in writing to explain
why the trespass notice is in error. The
trespasser may contact BIA by telephone
but any explanation of trespass must be
provided in writing. If BIA determines
that a trespass notice was issued in
error, the notice will be withdrawn.
§ 161.705 How long will a written trespass
notice remain in effect?

A written trespass notice will remain
in effect for the same action identified
in that written notice for a period of one
year from the date of receipt of the
written notice by the trespasser.
Actions
§ 161.706 What actions does BIA take
against trespassers?

If the trespasser fails to take the
corrective action as specified, BIA may
take one or more of the following
actions, as appropriate:
(a) Seize, impound, sell or dispose of
unauthorized livestock or other property
involved in the trespass. BIA may keep
the property seized for use as evidence.
(b) Assess penalties, damages, and
costs under § 161.712.

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§ 161.707 When will BIA impound
unauthorized livestock or other property?

BIA will impound unauthorized
livestock or other property under the
following conditions:
(a) Where there is imminent danger of
severe injury to growing or harvestable
crop or destruction of the range forage.
(b) When the known owner or the
owner’s representative of the
unauthorized livestock or other property
refuses to accept delivery of a written
notice of trespass and the unauthorized
livestock or other property are not
removed within the period prescribed in
the written notice.
(c) Any time after 5 days of providing
notice of impoundment if the trespasser
failed to correct the trespass.
§ 161.708 How are trespassers notified of
impoundments?

(a) If the trespass is not corrected in
the time specified in the initial trespass
notice, BIA will send written notice of
its intent to impound unauthorized
livestock or other property to:
(1) The unauthorized livestock or
property owner or representative; and
(2) Any known lien holder of the
unauthorized livestock or other
property.
(b) If BIA determines that the owner
of the unauthorized livestock or other
property or the owner’s representative is
unknown or refuses delivery of the
written notice, a public notice of intent
to impound will be posted at the tribal
community building, U.S. Post Office,
and published in the local newspaper
nearest to the Indian agricultural lands
where the trespass is occurring.
(c) After BIA has given notice as
described in § 161.707, unauthorized
livestock or other property will be
impounded without any further notice.
§ 161.709 What happens after
unauthorized livestock or other property are
impounded?

Following the impoundment of
unauthorized livestock or other
property, BIA will provide notice that
the impounded property will be sold as
follows:
(a) BIA will provide written notice of
the sale to the owner, the owner’s
representative, and any known lien
holder. The written notice must include
the procedure by which the impounded
property may be redeemed before the
sale.
(b) BIA will provide public notice of
sale of impounded property by posting
at the tribal community building, U.S.
Post Office, and publishing in the local
newspaper nearest to the Indian
agricultural lands where the trespass is
occurring. The public notice will

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include a description of the impounded
property, and the date, time, and place
of the public sale. The sale date must be
at least 5 days after the publication and
posting of notice.
§ 161.710 How can impounded livestock or
other property be redeemed?

Impounded livestock or other
property may be redeemed by
submitting proof of ownership and
paying all penalties, damages, and costs
under § 161.712 and completing all
corrective actions identified by BIA
under § 161.704.
§ 161.711 How will BIA sell impounded
livestock or other property?

(a) Unless the owner or known lien
holder of the impounded livestock or
other property redeems the property
before the time set by the sale, by
submitting proof of ownership and
settling all obligations under §§ 161.704
and 161.712, the property will be sold
by public sale to the highest bidder.
(b) If a satisfactory bid is not received,
the livestock or property may be reoffered for sale, returned to the owner,
condemned and destroyed, or otherwise
disposed of.
(c) BIA will give the purchaser a bill
of sale or other written receipt
evidencing the sale.
Penalties, Damages, and Costs
§ 161.712 What are the penalties,
damages, and costs payable by
trespassers?

Trespassers on Navajo Partitioned
Lands must pay the following penalties
and costs:
(a) Collection of the value of the
products illegally used or removed plus
a penalty of double their values;
(b) Costs associated with any damage
to Navajo Partitioned Lands and/or
property;
(c) The costs associated with
enforcement of the provisions,
including field examination and survey,
damage appraisal, investigation
assistance and reports, witness
expenses, demand letters, court costs,
and attorney fees;
(d) Expenses incurred in gathering,
impounding, caring for, and disposal of
livestock in cases which necessitate
impoundment under § 161.707; and
(e) All other penalties authorized by
law.
§ 161.713 How will BIA determine the
amount of damages to Navajo Partitioned
Lands?

(a) BIA will determine the damages by
considering the costs of rehabilitation
and re-vegetation, loss of future
revenue, loss of profits, loss of
productivity, loss of market value,

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damage to other resources, and other
factors.
(b) BIA will determine the value of
forage or crops consumed or destroyed
based upon the average rate received per
month for comparable property or
grazing privileges, or the estimated
commercial value or replacement costs
of the products or property.
(c) BIA will determine the value of the
products or property illegally used or
removed based upon a valuation of
similar products or property.
§ 161.714 How will BIA determine the
costs associated with enforcement of the
trespass?

Costs of enforcement may include
detection and all actions taken by us
through prosecution and collection of
damages. This includes field
examination and survey, damage
appraisal, investigation assistance and
report preparation, witness expenses,
demand letters, court costs, attorney
fees, and other costs.
§ 161.715 What will BIA do if a trespasser
fails to pay penalties, damages and costs?

This section applies if a trespasser
fails to pay the assessed penalties,
damages, and costs as directed. Unless
otherwise provided by applicable
Navajo Nation law, BIA will:
(a) Refuse to issue the permittee a
permit for any use of Navajo Partitioned
Lands; and
(b) Forward the case for appropriate
legal action.
§ 161.716 How are the proceeds from
trespass distributed?

Unless otherwise provided by Navajo
Nation law:
(a) BIA will treat any amounts
recovered under § 161.712 as proceeds
from the sale of agricultural property
from the Navajo Partitioned Lands upon
which the trespass occurred.
(b) Proceeds recovered under
§ 161.712 may be distributed to:
(1) Repair damages of the Navajo
Partitioned Lands and property; or
(2) Reimburse the affected parties,
including the permittee for loss due to
the trespass, as negotiated and provided
in the permit.
(c) Reimburse for costs associated
with the enforcement.
(d) If any money is left over after the
distribution of the proceeds described in
paragraph (b) of this section, BIA will
return it to the trespasser or, where the
owner of the impounded property
cannot be identified within 180 days,
the net proceeds of the sale will be
deposited into the appropriate Navajo
Nation account or transferred to the
Navajo Nation under applicable tribal
law.

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§ 161.717 What happens if BIA does not
collect enough money to satisfy the
penalty?

BIA will send written notice to the
trespasser demanding immediate
settlement and advising the trespasser
that unless settlement is received within
5 business days from the date of receipt,
BIA will forward the case for
appropriate legal action. BIA may send
a copy of the notice to the Navajo
Nation, permittee, and any known lien
holders.
Subpart I—Concurrence/Appeals/
Amendments
§ 161.800 How does the Navajo Nation
provide concurrence to BIA?

(a) Actions taken by BIA under this
part require concurrence of the Navajo
Nation under section 640d–9(e)(1)(A) of
the Settlement Act.
(b) For any action requiring the
concurrence of the Resources
Committee, the following procedures
will apply:
(1) Unless a longer time is specified
in a particular section, or unless BIA
grants an extension of time, the
Resources Committee will have 45 days
to review and concur with the proposed
action;

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(2) If the Resources Committee
concurs in writing with all or part of
BIA proposed action, the action or a
portion of it may be immediately
implemented;
(3) If the Resources Committee does
not concur with all or part of the
proposed action within the time
prescribed in paragraph (b)(1) of this
section, BIA will submit to the
Resources Committee a written
declaration of non-concurrence. BIA
will then notify the Resources
Committee in writing of a formal
hearing to be held not sooner than 30
days from the date of the nonconcurrence declaration;
(4) The formal hearing on nonconcurrence will permit the submission
of written evidence and argument
concerning the proposal. BIA will take
minutes of the hearing. Following the
hearing, BIA may amend, alter, or
otherwise change the proposed action.
If, following a hearing, BIA alters or
amends portions of the proposed plan of
action, BIA will submit the altered or
amended portions of the plan to the
Resources Committee for its
concurrence; and
(5) If the Resources Committee fails or
refuses to give its concurrence to the

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proposal, BIA may implement the
proposal only after issuing a written
order, based upon findings of fact, that
the proposed action is necessary to
protect the land under the Settlement
Act and the Agricultural Act.
§ 161.801 May decisions under this part be
appealed?

(a) Appeals of BIA decisions issued
under this part may be taken in
accordance with procedures in part 2 of
25 CFR.
(b) All appeals of decisions by the
Grazing Committee and Resources
Committee will be forwarded to the
Navajo Nation’s Office of Hearings and
Appeals.
§ 161.802 How will the Navajo Nation
recommend amendments to this part?

The Resources Committee will have
final authority on behalf of the Navajo
Nation to approve amendments to the
Navajo Partitioned Lands grazing
provisions, upon the recommendation
of the Grazing Committee and the
Navajo-Hopi Land Commission, and the
concurrence of BIA.
[FR Doc. 05–20100 Filed 10–6–05; 8:45 am]
BILLING CODE 4310–W7–P

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