Submission Number: UBR-DEIS-00471
Received: 1/28/2021 1:32:52 PM
Organization: Ute Indian Tribe of the Uintah and Ouray Reservation
Initiative: Uinta Basin Railway EIS
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Ute Indian Tribe of the Uintah and Ouray Reservation
Comments to the Surface Transportation Board’s Draft Environmental Impact Statement for the Uintah Basin Railway Project, STB Finance Docket No. FD 36284
January 28, 2021
The Ute Indian Tribe of the Uintah and Ouray Reservation (“Ute Indian Tribe” or “Tribe”) respectfully submits the following comments in response to the Surface Transportation Board’s (“STB”) [Footnote 1: As used in these comments, “STB” is inclusive of the STB’s Office of Environmental Analysis, referred to in the DEIS under the acronym “OEA.”] Draft Environmental Impact Statement (“DEIS”) for the Uintah Basin Railway Project, STB Finance Docket No. FD 36284.
The Ute Indian Tribe is located on the Uintah and Ouray Reservation (“Reservation”) in northeastern Utah, approximately 150 miles east of Salt Lake City. The Reservation lies within the drainage of the Upper Colorado River Basin. The Ute Indian Tribe consists of three bands: Uintah, White River and Uncompahgre. They once lived in an area from the Wasatch Front all the way to the Colorado Front Range – from present-day Salt Lake City, Utah to Denver, Colorado.
The Uintah and Ouray Reservation was originally two separate reservations. The first, the Uintah Valley Reservation, was established by Executive Order on October 3, 1861, confirmed by Congress in the Act of May 5, 1864, § 2, 13 Stat. 63, and encompasses 2,039,040 acres in the Uinta Basin of Utah. The second reservation, known as the Uncompahgre Reservation, was established pursuant to the Act of June 15, 1880 (ch. 223, 21 Stat. 1999), and the Executive Order of January 5, 1882, and it encompasses approximately 2,000,000 acres. Both Reservations were established to provide a permanent homeland for the Ute Indians and to enable the Tribe and its members to become self-sustaining through agricultural and other economic pursuits. Together, the Uintah Valley Reservation and Uncompahgre Reservation are organized under the Indian Reorganization Act to form a single reservation known today as the Uintah and Ouray Reservation. By area, the Uintah and Ouray Reservation is the second largest Indian reservation in the United States, and most of the Tribe’s nearly 3,000 members reside within Reservation boundaries.
The Tribe relies heavily on revenue from oil and gas development on its Reservation. The Tribe’s substantial mineral estate is managed by its Energy and Minerals Department, which is responsible for tracking and maintaining data on tribal mineral assets, monitoring energy and mineral production on the Reservation, and collecting and forecasting royalties and severance taxes. The Tribe has developed strong and longstanding working relationships with industry partners in oil and gas development. Yet, the opportunity for sustainable tribal economic growth from its mineral estate cannot be fully realized due to limited access to refineries capable of processing black wax and yellow wax crude. The relative remoteness of the Uintah and Ouray Reservation, combined with limited means of transportation, have forced the Tribe to rely on refineries in Salt Lake City with limited capacity to process crude oil.
The Uintah Basin Railway Project (sometimes referred to herein as simply “the Project”), presents a critical opportunity to expand Tribal access to the oil and gas market by connecting the Uinta Basin to the National Rail Network. By establishing a consistent and reliable means of transporting tribal minerals to refineries in other regions, the Project could significantly enhance on-Reservation energy development relied upon by the Tribe and its members. While the Tribe supports this Project, it is important to ensure the STB, as well as other agencies and stakeholders, properly recognize the sovereignty and jurisdiction of the Tribe over the certain lands and resources impacted by the Project and account for the appropriate role of the Tribe in establishing and implementing the mitigation measures identified in the DEIS.
TRIBAL JURISDICTION LANDS WITHIN EACH ALTERNATIVE
At various points throughout the DEIS, STB states that the Wells Draw Alternative does not include lands within the jurisdiction of the Tribe. This is not an accurate characterization. While the preferred Whitmore Park Alternative and the Indian Canyon Alternative both affect a greater amount of Tribal lands than the Wells Draw Alternative, the Wells Draw Alternative still contains lands within Indian country – and thus within the civil regulatory jurisdiction of the Ute Indian Tribe – in both the Uintah Valley and Uncompahgre portions of the Uintah and Ouray Reservation.
Tribal jurisdiction over lands within the borders of the Uintah and Ouray Reservation was fully, fairly, and conclusively adjudicated by the United States Court of Appeals for the Tenth Circuit in Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 773 F.2d 1087 (10th Cir. 1985) (en banc) (Ute III); modified and reaffirmed, Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 114 F.3d 1513 (10th Cir. 1997) (Ute V); Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 790 F.3d 1000 (10th Cir. 2015) (Ute VI) (reaffirmed); and Ute Indian Tribe of the Uintah and Ouray Reservation v. Myton, 835 F.3d 1255 (10th Cir. 2016) (Ute VII) (reaffirmed).
In Ute V, the Tenth Circuit drew a bright-line demarcation for the boundary between state and tribal jurisdictional authority over lands within the Uintah and Ouray Reservation:
[T]he Tribe and the federal government retain jurisdiction over all trust lands, the National Forest Lands, the Uncompahgre Reservation, and the three categories of non-trust lands that remain within the boundary of the Uintah Valley Reservation. The state and local defendants have jurisdiction over the fee lands removed from the Reservation under the 1902-1905 allotment legislation.
Ute V, 114 F.3d at 1530. The “three categories of non-trust lands” referenced above are:
(b) lands apportioned to the “Mixed Blood” Utes under the Ute Partition Act, Act of Aug. 27, 1954, Pub.L. No. 97-698, ch. 1009, 68 Stat. 868 (codified at 25 U.S.C.
(c) lands allotted to individual Indians that have passed into fee status after 1905;
(d) lands that were held in trust after the Reservation was opened in 1905 but that since have been exchanged into fee status by the Tribe for then-fee (now trust) lands in an effort to consolidate its land holdings pursuant to the Indian Reorganization Act, Act of June 18, 1934, ch. 576, 48 Stat. 984 (codified at 25 U.S.C. §§ 461-79) and the Indian Land Consolidation Act of 1983, Pub.L. No. 97-459, 96 Stat. 2517 (codified at 25 U.S.C. §§ 2201-11).
Id. Each category of lands identified above retains its status as Indian country land under tribal jurisdiction, despite not being held in trust.
The Maps displayed in Appendix A show the Indian Country Jurisdiction Lands within each of the proposed routes that were examined in the DEIS, including the Wells Draw Alternative. Through consultation with the Tribe, STB must properly recognize the Tribal jurisdictional interests at issue in the Wells Draw Alternative in both establishing mitigation measures and identifying the parties that must be involved and consulted in the development and implementation of mitigation measures.
TRIBAL JURISDICTION OVER RESERVATION RESOURCES
A. Tribal Jurisdiction Over Water Rights and Water Resources
In its DEIS, STB fails to recognize tribal jurisdiction over its water rights and water resources. As stated throughout the DEIS, the Project could impact the quality of both surface water and groundwater. Yet, the DEIS only requires the applicant to work with the Utah Division of Water Rights and the Utah Water Quality Board to mitigate impacts on water resources.
Water plays an essential role in the health, safety, and culture of the Ute Indian Tribe. The scarce water resources on the Uintah and Ouray Reservation are used for agricultural, municipal, and industrial purposes. The Tribe also relies on quality water to sustain fish habitat and allow sensitive aquatic wildlife to survive within the Reservation ecosystem. As stated in the Preamble of the Tribe’s Floodplain Development Ordinance: “The Utes believe that water is sacred; it is the source of all living things. We pray with water and perform many religious practices with it. It is to be protected so that it will continue to provide the many blessings to the Ute people.”
Because water is such an essential commodity for the Tribe and its members, the Tribe established laws and regulations to protect the quality of both surface water and groundwater on the Uintah and Ouray Reservation. For example, the Tribe has enacted Ordinance No. 13-023, governing the disposal of oil and gas wastewater on the Reservation. Tribal Ordinance No. 17- 001 establishes protocols and restrictions in commercial activities on or near floodplains, to prevent disruption to riparian habitat and to minimize sedimentation. The Tribe has also made it a criminal offense to pollute or knowingly interfere with the natural flow of a stream. A selection of Tribal laws and regulations governing water, and water quality in particular, is contained in Appendix B and include the following:
• The Tribal Floodplain Development Ordinance
• The Tribal Oil and Gas Wastewater Disposal Ordinance
• Tribal Statement on Water Policy
• Tribal Fish Stocking and Transfer Policy
• Excerpt from the Tribe’s Criminal Code on Waters Offenses
In furtherance of its sovereign authority over water rights and water resources, the Tribe has established a Tribal Water Quality Department, the Tribal Fish and Wildlife Department, and the Tribal Water Resources Department. Each of these Departments plays a role in managing and protecting water quality on the Reservation pursuant to authority delegated by the Ute Indian Tribe Business Committee. These tribal departments, along with the Business Committee, must be acknowledged and included in all mitigation measures in the Final STB EIS? relating to water quality that entail review, cooperation, and consultation with government agencies.
B. Tribal Jurisdiction Over Hunting and Impacts on Wildlife Habitat
Wildlife is an indispensable component of the ecosystem on the Uintah and Ouray Reservation. Protecting wildlife and wildlife habitat naturally occurring on the Uintah and Ouray Reservation is an essential part of the Tribe’s sovereignty over its Reservation lands. Section 8-1- 3 of the Tribe’s Law and Order Code, enacted and approved in accordance with the Indian Reorganization Act of 1934, states that “[a]ll wildlife now or hereafter within the Uintah and Ouray Reservation, not held by private ownership legally acquired…are hereby declared to be the Property of the Ute Indian Tribe.” The Tribe regulates disruptions to wildlife and habitat on the Uintah and Ouray Reservation through the Ute Indian Tribe Business Committee and powers specifically delegated by the Business Committee to the Tribe’s Fish and Wildlife Department. The unauthorized taking of wildlife on the Uintah and Ouray Reservation is a violation of tribal law.
Hunting is highly regulated on the Uintah and Ouray Reservation. Through annual proclamations developed by the Tribe’s Fish and Wildlife Department and approved by the Business Committee, the Tribe establishes protocols and restrictions for trapping and big-game hunting on the Reservation, including laws on hunting seasons, tagging requirements, areas that are open and closed for hunting, and restrictions on activities such as snowmobile and ATV use that could disturb the habitat of big game and fur-bearing wildlife.
In the DEIS, STB acknowledges that the “Ute Indian Tribe has strong hunting traditions that are still practiced today and that are important to tribal members’ way of life.” STB further states that impacts on big game from habitat disturbance and noise would have a disproportionate impact on the Ute Indian Tribe, but that “the effect would not be high and adverse because large areas of suitable habitat around the Action Alternatives would be sufficient to allow for wildlife movement and dispersal.” However, there is no indication in the DEIS that due consideration was given to the jurisdiction of the Tribe to govern, on an ongoing basis throughout the life of this project, hunting and limit areas appropriate for hunting at the sole discretion of the Tribe and in accordance with the Tribe’s sovereign authority over the disposition of Reservation wildlife. The extent to which the disproportionate impact on the Ute Indian warrants mitigation must be reassessed and determined in consultation with the Ute Indian Tribe.
DISPROPORTIONATE IMPACTS ON TRIBAL MEMBERS AND COMMUNITIES
In 1994, President Clinton issued Executive Order No. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, directing all federal agencies to identify and address “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low- income populations in the United States.” Thus, federal law requires STB to protect the Ute Indian Tribe from having to shoulder a disproportionate share of the adverse environmental impacts caused by the Project.
In Section 3.14 of the DEIS, titled “Environmental Justice,” STB aims to “assess potential high and adverse impacts of the Action Alternatives and the No-Action Alternative on minority populations, low-income populations and American Indian tribes; and evaluate whether high and adverse impacts would be borne disproportionally by minority populations, low-income populations, or American Indian tribes.”
However, STB takes a truncated approach to identifying and addressing potential disproportionate impacts on Tribal members and Tribal communities in the Project area. In Section 188.8.131.52, “Analysis Methods,” STB states that, “[t]hrough consultation with the Ute Indian Tribe, OEA identified impacts related to air emissions, vehicle safety and delay, rail operations safety, and cultural resources as areas of concern to the [Ute Indian] tribe.” STB then “reviewed these resource impacts to determine if impacts would be otherwise high and adverse for tribal members specifically.”
STB’s approach arbitrarily limits its review of impacts on tribal members based on its conclusion of what does and does not constitute a priority item for the Tribe. For instance, in adopting this limited scope of review, STB has not considered the potential socioeconomic and safety impacts on Tribal communities if the applicant is not required to work with the Tribe to establish measures to protect against the use of the rail line as a means to transport firearms and contraband onto the Uintah and Ouray Reservation. As a necessary next step, determining areas of priority for the Tribe will require government-to-government consultation with the Tribe which, as detailed above, has not taken place at this time. Further, STB’s truncated approach is not consistent with minimum requirements to assess environmental justice factors pertinent to the Ute Indian Tribe, nor STB’s trust responsibility to the Tribe and its members.
RIGHT-OF-WAY AGREEMENT BETWEEN THE TRIBE AND THE APPLICANT
Land Use and Recreation Mitigation Measure 2 (“LUR-MM 2”), found on pages 4-15 of the DEIS, states that “[i]f the Board authorizes the Indian Canyon Alternative or the Whitmore Park Alternative, the Coalition shall implement the reasonable mitigation measures imposed by the Ute Indian Tribe during negotiations for the consent of the Tribe for a right-of-way across Tribal trust land.” The Tribe appreciates STB’s recognition of the applicant’s requirement to work with the Tribe to obtain a right-of-way for the Project. However, the Tribe rejects the qualifying language contained in this mitigation measure.
First, this requirement as drafted only applies to the Whitmore Park and Indian Canyon Alternatives. However, as discussed above, the Wells Draw Alternative includes Indian country lands, and the Tribe may have a full or fractionated ownership interest in these lands. Therefore, a Tribally-approved right-of-way may still be required for the Wells Draw Alternative. The location and status of these lands should be ascertained in consultation with the Tribe.
Second, LUR-MM 2 only requires the applicant to comply with “reasonable mitigation measures” established under a right-of-way agreement with the Tribe. This could be construed as creating a standard for when and how the applicant must meet its performance obligations under a separate agreement with the Tribe. The Tribe and the applicant each retain the independent legal capacity to enter into a contract establishing conditions for the applicant’s access to and use of tribal lands. Therefore, this LUR-MM 2 should be revised to either remove the reference to “reasonable” mitigation measures or to expressly state that the EIS does not diminish agreed upon conditions to access and use Reservation lands.
ONGOING CONSULTATION REQUIREMENT
Without detailing the persons or agencies involved, STB states that government-to- government consultation with the Ute Indian Tribe took place during the development of the DEIS. However, STB has not yet engaged in government-to-government consultation with the Ute Indian Tribe Business Committee, which will be required as part of STB’s development of a Final EIS.
Pursuant to Executive Order 13175, “[o]n issues relating to tribal self-government, tribal trust resources, or Indian tribal treaty or other rights, each agency should explore and, where appropriate use of consensual mechanisms for developing regulations, including negotiated rulemaking.” As detailed in the following Section, the Uintah Basin Railway Project would traverse Indian country land within the Uintah and Ouray Reservation, potentially impacting Tribal communities, waters, wildlife, and other Tribal resources. STB is obliged not only to engage in government-to-government consultation with the Ute Indian Tribe Business Committee, but also to obtain the free, prior and informed consent of the Tribe, as required under United Nations Declaration on the Rights of Indigenous People.
Government-to-government consultation is a critically important step in the development of a Final EIS. Not only does consultation allow STB to gain firsthand insight on the issues and concerns that are priority issues for the Tribe, but it also gives STB a more informed perspective on how best to ensure it satisfies its trust responsibility to the Tribe and its members.
Pursuant to the Constitution and By-Laws of the Ute Indian Tribe, the Ute Indian Tribe Business Committee acts as both the legislative branch and the top executive authority of the Tribe. Therefore, as a matter of Tribal law and policy, government-to-government consultation is conducted through the Business Committee, and not any other department or agency of the Tribe. The Ute Indian Tribe acknowledges and appreciates the STB’s outreach and correspondence with the Ute Indian Tribe and its representatives to date. However, in light of STB’s characterization of these correspondences as “consultation” in the DEIS, it is important to clarify these requisites for government-to-government consultation with the Ute Indian Tribe moving forward.
The Uintah Basin Railway Project will satisfy a long-needed means of expanding the Tribe’s access to energy markets nationwide, providing a critical step forward in allowing the Tribe to realize the economic opportunity in its vast mineral estate. The Tribe supports this project and very much looks forward to this rail line becoming operational in the near future. However, like any project that traverses Tribal lands and impacts Tribal resources, it is critical that the regulatory jurisdiction of the Ute Indian Tribe over its Reservation resources be recognized on a continuous basis throughout each stage of this project, just as the STB has recognized and deferred the jurisdictional authority of federal and state agencies throughout the DEIS.
[See original attachment for Appendix A for route maps, Appendix B for “Selection of Tribal Laws and Regulations Governing Water.”]