Or. Admin. R. 350-082-0130 - Tribal Treaty Rights and Consultation

(1) Tribal Treaty Rights and Consultation in the GMA

(a) Notice requirements to the governments of the four Columbia River Treaty Tribes are in 350-082-0110.

(b) Applications for proposed new review uses and development located in, providing recreation river access to, or on parcels that adjoin the Columbia River or its fishbearing tributaries shall include the following supplemental information:

(A) The site plan map shall show adjacent river areas at least 1/2 mile upstream and downstream from the project site, the locations at which river access is planned, and the locations of all tribal fishing sites known to the project applicant;

(B) A description of the type of river access and uses proposed, estimated period when the development would be used, and anticipated levels of use (people, boats, and other uses) during peak-use periods; and

(C) Proposed treaty rights protection measures that will be used to avoid effects to Indian treaty or other rights. These measures may include reducing the size and modifying the location or design of the proposed uses, seasonal closures, stringent onsite monitoring, information signs, and highly visible buoys or other markers delineating fishing net locations.

(c) At the same time that the Executive Director sends notice of the proposed development, they shall offer to meet with or consult with the tribal governments prior to making a decision on the proposed development. Offers to meet or consult with a tribal government shall include phone calls and electronic communication to tribal government chairs, chief administrative officers, and natural and cultural resource staff. The Executive Director shall make more than one attempt to contact a tribal government.

(d) Tribal governments shall have 30 calendar days from the date a notice is mailed to request that the Executive Director consult with the tribal government regarding potential effects or modifications to treaty or other rights of the tribe. All substantive comments, recommendations, or concerns expressed by tribal governments during the consultation meeting shall be summarized in the Executive Director's decision, subject to the following confidentiality standards:

(A) The Executive Director shall keep confidential and may not disclose to any person or party who is not the applicant and the applicant's representative the tribal government's comments, recommendations, and concerns, and notes of the consultation and other information related to protection of treaty rights, unless the tribal government expressly authorizes disclosure.

(B) The confidential information shall be submitted to the Gorge Commission for review in the event of an appeal, and shall remain confidential and not subject to disclosure to any person or party other than the applicant, the applicant's representative, the appeal parties and their representatives, and the necessary Gorge Commission staff and Gorge Commission members, unless the tribal government expressly authorizes further disclosure.

(e) Any time periods specified in this land use ordinance shall stop when a tribal government requests consultation and shall not start again until the Executive Director meets with all tribal governments that requested consultation and the Executive Director receives all additional information and actions from the project applicant necessary to avoid effects to treaty rights to the satisfaction of the tribal governments that requested consultation.

(f) A tribal government's choice to consult with the Executive Director shall, in no way, be interpreted as a waiver of the tribe's sovereign immunity or waiver of any claim that the proposed use affects or modifies a treaty right or other tribal rights.

(g) All substantive comments, recommendations, or concerns expressed by tribal governments during the consultation meeting shall be resolved by the Executive Director or project applicant through revisions to the project application, conditions of approval, and, if necessary, in a treaty rights protection plan. The protection plan shall include measures to avoid effects or modifications to treaty and other rights of any Indian tribe.

(h) The Executive Director's decision shall integrate findings of fact that address their effort to meet with or consult with the tribal governments and any revisions and treaty rights protection plan resolving the tribal governments' comments, recommendations, or concerns.

(i) The treaty rights protection process may conclude if the Executive Director determines that the proposed uses would not affect or modify treaty or other rights of any Indian tribe. Uses that would affect or modify such rights shall be prohibited.

(j) A finding by the Executive Director that the proposed uses would not affect or modify treaty or other rights, or a failure of an Indian tribe to comment or consult on the proposed uses as provided in these guidelines, in no way shall be interpreted as a waiver by the Indian tribe of a claim that such uses affect or modify treaty or other tribal rights.

(2) Indian Tribal Treaty Rights and Consultation in the SMAs: For new development and uses in the SMAs, the Forest Service shall determine effects on treaty rights and shall notify the Executive Director of the determination.

Notes

Or. Admin. R. 350-082-0130

CRGC 1-2022, adopt filed 03/02/2022, effective 5/1/2022

Statutory/Other Authority: ORS 196.150, RCW 43.97.015, 16 USC § 544e(c), 16 USC § 544f(l)

Statutes/Other Implemented: ORS 196.150, RCW 43.97.015, 16 USC § 544e(c), 16 USC § 544f(l), 16 USC § 544o(a)(1)