Notice Regarding Upper Klamath Basin Comprehensive Agreement, 61582-61584 [2017-28050]
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61582
Federal Register / Vol. 82, No. 248 / Thursday, December 28, 2017 / Notices
Ms.
Jennifer Davis, Designated Federal
Officer, Bureau of Indian Education,
2600 N. Central Ave. Suite 800,
Phoenix, AZ 85004; telephone number
(480) 777–7986.
SUPPLEMENTARY INFORMATION: This
meeting is being held under the
provisions of the Federal Advisory
Committee Act of 1972 (5 U.S.C.
Appendix 2, as amended). The Advisory
Board was established under IDEA to
advise the Secretary of the Interior,
through the Assistant Secretary-Indian
Affairs, on the needs of Indian children
with disabilities. The meetings are open
to the public.
The following items will be on the
agenda:
• Introduction of Advisory Board
members
• Report from Tony Dearman, Director,
BIE Director’s Office
• Report from Dr. Jeffrey Hamley
Associate Deputy Director, BIE,
Division of Performance and
Accountability (DPA)
• Report from Donald Griffin,
Supervisory Education Specialist,
BIE, DPA/Special Education
• Board work on Priorities for 2018
• Public Comment (via conference call,
Friday, January 12th meeting only*).
• BIE Advisory Board—Advice and
Recommendations
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FOR FURTHER INFORMATION CONTACT:
The meeting on January 12, 2018, will
include a public comment period via
conference call from 11:30 a.m. to 12:00
p.m. Depending on the number of
persons wishing to comment and time
available, the amount of time for
individual oral comments may be
limited. To allow for full consideration
of information by the Advisory Board,
written comments must be provided to
Jennifer Davis, Designated Federal
Officer, Bureau of Indian Education,
2600 N. Central Avenue, Suite 800,
Phoenix, AZ 85004; or by telephone
(480) 777–7986, no later than Thursday,
January 11, 2018. All written comments
received will be provided to the
Advisory Board. The call-in information
for the public comment period is 1–
888–417–0376, Passcode: 2509140.
Before including your address, phone
number, email address, or other
personal identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
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Authority: 5 U.S.C. Appendix 5; 20 U.S.C.
1400 et seq.
Dated: December 12, 2017.
John Tahsuda,
Principal Deputy Assistant Secretary—Indian
Affairs, Exercising the Authority of the
Assistant Secretary—Indian Affairs.
[FR Doc. 2017–28055 Filed 12–27–17; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
Office of the Secretary
[189A2100DD/AAKC001030/
A0A501010.999900 253G]
Notice Regarding Upper Klamath Basin
Comprehensive Agreement
Office of the Secretary, Interior.
Notice.
AGENCY:
ACTION:
The Secretary of the Interior
(Secretary) is publishing this Notice
under subsection 10.2 of the Upper
Klamath Basin Comprehensive
Agreement (UKBCA), executed by the
Klamath Tribes (Tribes), State of Oregon
(State), and numerous irrigators in the
Upper Klamath Basin. The UKBCA
contains measures to address the needs
of water users in the Upper Klamath
Basin, who are not affiliated with the
Bureau of Reclamation’s Klamath
Project (Project). The UKBCA also
contains conditions that must be
achieved before the UKBCA can become
permanent. Despite the efforts of the
UKBCA parties, one or more conditions
in subsection 10.1 of the UKBCA have
failed to occur. Accordingly, pursuant to
the terms of subsection 10.2 of the
UKBCA and as further described below,
this statement serves as a ‘‘Negative
Notice’’ that the UKBCA is terminated
as set forth in UKBCA subsection 10.2.
DATES: The termination of the UKBCA is
effective on December 28, 2017 or, if
judicial review of the termination is
timely sought, then the effective date of
the termination shall be the date on
which the termination is sustained
following any and all appeals.
ADDRESSES: The Upper Klamath Basin
Comprehensive Agreement (UKBCA) is
available at www.oregon.gov/gov/policy/
environment/taskforce/Pages/Final_
Upper_Klamath_Basin_Comprehensive_
Agreement_Documents.aspx.
FOR FURTHER INFORMATION CONTACT:
Address all comments and requests for
additional information to Christina
Kalavritinos, Senior Advisor,
Commissioner’s Office, Bureau of
Reclamation, (202) 513–0509.
SUPPLEMENTARY INFORMATION: On
February 18, 2010, the Tribes joined
SUMMARY:
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more than 60 other parties in signing the
Klamath Basin Restoration Agreement
(KBRA). A subset of those parties signed
a second agreement, the Klamath
Hydroelectric Settlement Agreement
(KHSA), that same day. Those two
agreements aimed to restore the Basin
fisheries and sustain local economies by
restoring fish habitat and implementing
a water-sharing agreement among the
parties who rely upon water from Upper
Klamath Lake (Lake) and the Klamath
River. A majority of the water users
living above (upstream of) the Lake did
not agree to this water-sharing
agreement, so the KBRA provided only
general direction on a possible Upper
Basin water-sharing agreement.
In spring 2013, the Oregon Water
Resources Department (OWRD) ruled
that the Tribes and United States held
water rights for maintaining water levels
in the major tributaries above the Lake.
The Klamath County Circuit Court
subsequently determined that
enforcement of those determined instream flow rights should not be stayed.
In summer 2013, at the request of the
Governor of Oregon and several
Congressional representatives, the
Tribes began negotiating with the State
and the non-Indian water users who are
upstream of the Lake and not affiliated
with the Project (referred to as ‘‘OffProject irrigators’’), in an effort to reach
a water-sharing and habitat restoration
agreement that would benefit their
respective interests. The resulting
agreement, the UKBCA, was executed
on April 18, 2014.
The UKBCA included:
• A Water Use Program that would
increase inflow into the Lake by an
annual average of at least 30,000 acre
feet by reducing consumptive water use
in key reaches of the tributaries above
the Lake, while also providing a stable,
sustainable basis for the continuation of
irrigated agriculture;
• A Riparian Program designed to
improve and protect riparian
conditions;
• An Economic Development
Program designed to create economic
opportunities for the Tribes and its
members;
• Increased opportunities for the
exercise of Tribal cultural rights; and
• A Transition Period to allow for the
elements of the UKBCA to be phased in
over time.
The UKBCA established a five-year
transition period with interim
milestones and operating procedures.
The parties anticipated that once the
conditions contained in subsection 10.1
of the UKBCA were achieved, the
UKBCA would become permanent.
During the transition period, the Tribes
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agreed to limit the enforcement of their
determined water rights so long as the
other parties to the UKBCA met specific
interim milestones. In 2017, those
interim milestones were not achieved
and the Tribes (with the concurrence of
the United States as trustee) requested
that OWRD fully enforce their
determined water rights; OWRD
complied with the request.
All three settlement agreements
(KBRA, KHSA, and UKBCA) have
interdependencies. For example, the
UKBCA was premised in key part on
Federal funding being provided for
certain actions under the KBRA.
Because the KBRA required
congressional approval to become fully
enforceable and funded, and because
Congress failed to act within the time
frame set by the KBRA, the KBRA
expired of its own terms on December
31, 2015.
After the KBRA expired, the Tribes
notified the Secretary in a January 12,
2016, letter that they believed their
bargained-for benefits under the UKBCA
and KBRA could not be realized. The
Tribes asked the Secretary to issue a
Negative Notice as contemplated under
subsection 10.2 of the UKBCA.
Subsection 10.2 of the UKBCA states
that the Secretary shall issue a Negative
Notice resulting in termination of the
UKBCA if, after completion of required
dispute resolution processes, the
Secretary determines that there is ‘‘no
reasonable likelihood’’ that all required
conditions set out in subsection 10.1 of
the UKBCA can be met. As noted in the
Tribes’ letter, several conditions listed
in subsection 10.1 required the
enactment of Federal legislation, which
did not and has not happened.
The UKBCA allows the Secretary to
make a preliminary determination
regarding whether the conditions
contained in subsection 10.1 can be
achieved. On April 4, 2016, the Deputy
Secretary responded with a preliminary
determination, tentatively agreeing with
the Tribes but nonetheless noting that
subsection 10.2 of the UKBCA requires
a ‘‘meet and confer’’ process among the
parties before a Negative Notice could
be issued. The Tribes invoked the meet
and confer provisions in an August 11,
2016, letter, and the parties met and
conferred on October 4, 2016. That
meeting was unsuccessful in resolving
the issues between the parties.
On December 4, 2016, some OffProject irrigators invoked the mediation
provision in subsection 11.2 of the
UKBCA in an effort to aid the meet and
confer process. The Tribes also invoked
this mediation provision on December
12, 2016. The parties selected a neutral
third-party mediator and held a
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confidential mediation session on
February 23, 2017. That effort did not
resolve the differences between the
parties. The Tribes sent letters to the
Secretary on April 26, 2017, and
September 11, 2017, reiterating their
request that the Secretary issue a
Negative Notice. The Off-Project
irrigators sent a letter to the Secretary on
April 28, 2017, asking that the Secretary
refrain from issuing a Negative Notice.
The Tribes are of the view that all
three agreements—the KBRA, the
KHSA, and the UKBCA—need to be
fully implemented in order to receive
their bargained-for benefits. The Tribes
have highlighted this position and
concern to the other UKBCA parties and
in their correspondence requesting a
Negative Notice. The UKBCA and KBRA
were inextricably linked. Many of the
bargained-for benefits for the Klamath
Tribes, including funding for fishery
and Tribal programs and the purchase of
land, were embedded in the KBRA.
Funding for many of the actions in the
UKBCA, including water right
retirements to achieve 30,000 acre-feet
of water savings and riparian corridor
restoration, was similarly included in
the KBRA.
Statement of Findings
Subsection 10.1 of the UKBCA
contains fifteen (15) conditions
(subsections 10.1.1 through 10.1.15) that
all must occur before an Affirmative
Notice can be issued that would make
the UKBCA permanent. If I find that one
or more of these conditions has not or
cannot be achieved, and thus there is no
reasonable likelihood that an
Affirmative Notice will occur under
section 10.1, then section 10.2 directs
that a Negative Notice be published.
Subsection 10.1.3 of the UKBCA
requires enactment of Federal
legislation authorizing the execution
and implementation of the KBRA,
which the UKBCA defines as ‘‘the
agreement dated February 18, 2010, as
amended December 29, 2012.’’ No
legislation was passed by Congress
before December 31, 2015, and the
KBRA expired of its own terms. Thus,
subsection 10.1.3 cannot be met. This
fact alone means I will not be able to
issue an Affirmative Notice, and
warrants issuance of a Negative Notice.
I have reached a similar conclusion
for subsections 10.1.1, 10.1.2, and
10.1.4, which also require enactment of
Federal legislation that would authorize
Federal participation in the UKBCA’s
Water Use or Riparian Protection
Programs and Federal participation on
the Joint Management Entity. No
legislation was passed by Congress to
enact these provisions, and I am not
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61583
aware of any pending legislation that
would do so in the foreseeable future.
Accordingly, I also conclude that there
is no reasonable likelihood that these
conditions will be met at any time in the
foreseeable future.
The lack of Federal legislation as
required by subsections 10.1.1 through
10.1.4 also leads to the conclusion that
there is no reasonable likelihood that
the additional conditions contained in
subsections 10.1.10 through 10.1.13 will
be met either. Without legislation
authorizing the KBRA, the Tribes do not
intend to provide a notice of willingness
to proceed with the UKBCA (subsection
10.1.10). Moreover, without authorizing
legislation, I cannot sign the UKBCA
(subsection 10.1.13). Similarly, the
Landowner Entity and State of Oregon,
like the Tribes, must determine that
Federal legislation authorizing the
UKBCA is materially consistent with the
UKBCA (subsections 10.1.11 and
10.1.12).
In addition, other conditions in the
UKBCA (subsections 10.1.6 and 10.1.7)
require the appropriation of Federal
funds to provide an economic
development fund for the Tribes, as well
as funding to enable the Joint
Management Entity and Landowner
Entity to carry out their responsibilities
under the UKBCA. Those funds have
not been appropriated, and I am not
aware of any plans to provide this
funding in the foreseeable future.
Finally, the UKBCA contains a
condition requiring the Klamath County
Circuit Court to enter a decree affirming
the Tribes’ water rights as modified by
the UKBCA (subsection 10.1.15). Again,
without an Act of Congress, there will
be no finalized UKBCA, nor the
settlement it contemplates for the
Klamath County Circuit Court to
approve. The unlikely completion of
this final condition is further cause to
find that no reasonable likelihood
remains for me to issue an Affirmative
Notice.
Thus, I conclude that the condition in
subsection 10.1.3 cannot be met and
therefore there is no reasonable
likelihood that I can issue an
Affirmative Notice. Moreover,
consideration of all the other unsatisfied
conditions also leads me to the
conclusion there is no reasonable
likelihood that I can issue an
Affirmative Notice under section 10.1.
Each of the unsatisfied conditions alone
is enough for me to reach this
conclusion and, when taken together as
a whole, the same is true. Accordingly,
under the terms of the UKBCA, this
Negative Notice denotes the termination
of the UKBCA.
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Federal Register / Vol. 82, No. 248 / Thursday, December 28, 2017 / Notices
Therefore, in accordance with section
10.2 of the UKBCA, I find as follows:
(A) One or more conditions that must
occur before I can issue an Affirmative
Notice have not been achieved and do
not seem reasonably likely to be
achieved.
(B) There is no reasonable likelihood
that an Affirmative Notice can occur
under subsection 10.1 of the UKBCA.
(C) As provided by subsection 10.2 of
the UKBCA, I am publishing this
Negative Notice and stating that an
Affirmative Notice under section 10.1
will not be published.
(D) Under the terms of subsection 10.2
of the UKBCA, ‘‘this Agreement shall
terminate on the date’’ of publication of
this Negative Notice, or in the event that
judicial review of the Negative Notice is
timely sought, on the date on which the
Negative Notice ‘‘is sustained following
any and all appeals.’’
Dated: December 22, 2017.
Ryan Zinke,
Secretary of the Interior.
[FR Doc. 2017–28050 Filed 12–27–17; 8:45 am]
BILLING CODE 4337–15–P
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
a day, seven days a week, to leave a
message or question with the above
individual. You will receive a reply
during normal business hours.
SUPPLEMENTARY INFORMATION: The
supplemental plat of sections 35 and 36
in Township 13 South, Range 90 West,
Sixth Principal Meridian, Colorado, was
accepted on November 29, 2017, and
filed on November 30, 2017.
A person or party who wishes to
protest the above survey must file a
written notice of protest within 30
calendar days from the date of this
publication at the address listed in the
ADDRESSES section of this notice. A
statement of reasons for the protest may
be filed with the notice of protest and
must be filed within 30 calendar days
after the protest is filed.
Before including your address, phone
number, email address, or other
personal identifying information in your
protest, please be aware that your entire
protest, including your personal
identifying information, may be made
publicly available at any time. While
you can ask us in your comment to
withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
Authority: 43 U.S.C. Chap. 3.
[LLCO956000 L14400000.BJ0000 18X]
Randy A. Bloom,
Chief Cadastral Surveyor for Colorado.
Notice of Filing of Plats of Survey;
Colorado
[FR Doc. 2017–28061 Filed 12–27–17; 8:45 am]
BILLING CODE 4310–P
AGENCY:
Bureau of Land Management,
Interior.
Notice of official filing.
ACTION:
DEPARTMENT OF THE INTERIOR
The Bureau of Land
Management (BLM) Colorado State
Office is publishing this notice to
inform the public of the official filing of
the survey plat listed below. The survey,
which was executed at the request of the
BLM, is necessary for the management
of these lands. The plat will be available
for viewing in the BLM Colorado State
Office.
DATES: The plat described in this notice
was filed on November 30, 2017.
ADDRESSES: You may submit written
protests to the BLM Colorado State
Office, Cadastral Survey, 2850
Youngfield Street, Lakewood, CO
80215–7093.
FOR FURTHER INFORMATION CONTACT:
Randy Bloom, Chief Cadastral Surveyor
for Colorado, (303) 239–3856; rbloom@
blm.gov. Persons who use a
telecommunications device for the deaf
may call the Federal Relay Service at 1–
800–877–8339 to contact the above
individual during normal business
hours. The Service is available 24 hours
Bureau of Reclamation
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SUMMARY:
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[RR02800000, 17XR0687ND,
RX185279402000000]
Draft Environmental Impact Statement/
Environmental Impact Report for the
Yolo Bypass Salmonid Habitat
Restoration and Fish Passage Project,
Yolo, Sutter, and Solano Counties,
California
Bureau of Reclamation,
Interior.
ACTION: Notice of availability and notice
of public meetings.
AGENCY:
The Bureau of Reclamation,
as the National Environmental Policy
Act Federal lead agency, and the
California Department of Water
Resources, as the California
Environmental Quality Act State lead
agency, have made available for public
review and comment the Yolo Bypass
Salmonid Habitat Restoration and Fish
Passage Project Draft Environmental
Impact Statement/Environmental
SUMMARY:
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Impact Report (EIS/EIR). Two public
meetings will be held to receive
comments from individuals and
organizations on the Draft EIS/EIR.
DATES: Submit written comments on the
Draft EIS/EIR on or before February 15,
2018.
Two meetings have been scheduled to
receive oral or written comments
regarding environmental effects:
• Wednesday, January 17, 2018, 6:00
p.m. to 8:00 p.m., Woodland, California.
• Thursday, January 18, 2018, 1:30
p.m. to 3:30 p.m., West Sacramento,
California.
ADDRESSES: Send written comments on
the Draft EIS/EIR to Mr. Ben Nelson,
Bureau of Reclamation, 801 I Street,
Suite 140, Sacramento, CA 95814, or via
email to bcnelson@usbr.gov.
The public meetings will be held at
the following locations:
• West Sacramento—Community
Center, 1075 West Capitol Ave., West
Sacramento, CA 95691.
• Woodland—Woodland Community
and Senior Center, 2001 East Street,
Woodland, CA 95776.
Electronic CD copies of the Draft EIS/
EIR may be requested from the Bureau
of Reclamation, at (916) 414–2424, or
bcnelson@usbr.gov. The Draft EIS/EIR is
also accessible from the following
website: https://www.usbr.gov/mp/
BayDeltaOffice/yolo-bypass.html.
Copies of the Draft EIR/EIS are
available for public review at the
following locations:
1. Bureau of Reclamation, Mid-Pacific
Region, Regional Library, 2800 Cottage
Way, Sacramento, CA 95825.
2. Bureau of Reclamation, Bay-Delta
Office, 801 I Street, Suite 140,
Sacramento, CA 95814.
3. Sacramento Public Library, 828 I
Street, Sacramento, CA 95814.
FOR FURTHER INFORMATION CONTACT:
Please contact Mr. Ben Nelson, Bureau
of Reclamation, at (916) 414–2424, or
via email at bcnelson@usbr.gov; or Ms.
Karen Enstrom, Department of Water
Resources, at (916) 376–9778, or via
email at Karen.Enstrom@water.ca.gov.
SUPPLEMENTARY INFORMATION: The Draft
EIS/EIR addresses methods to improve
fish passage and increase floodplain
fisheries rearing habitat in the Yolo
Bypass to benefit Sacramento River
winter-run Chinook salmon, Central
Valley spring-run Chinook salmon,
Central Valley steelhead, and Southern
Distinct Population Segment North
American green sturgeon. The Project
actions would implement Reasonable
and Prudent Alternative (RPA) actions
I.6.1 and I.7, as described in the 2009
National Oceanic and Atmospheric
Administration National Marine
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Agencies
[Federal Register Volume 82, Number 248 (Thursday, December 28, 2017)]
[Notices]
[Pages 61582-61584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28050]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
[189A2100DD/AAKC001030/A0A501010.999900 253G]
Notice Regarding Upper Klamath Basin Comprehensive Agreement
AGENCY: Office of the Secretary, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Secretary of the Interior (Secretary) is publishing this
Notice under subsection 10.2 of the Upper Klamath Basin Comprehensive
Agreement (UKBCA), executed by the Klamath Tribes (Tribes), State of
Oregon (State), and numerous irrigators in the Upper Klamath Basin. The
UKBCA contains measures to address the needs of water users in the
Upper Klamath Basin, who are not affiliated with the Bureau of
Reclamation's Klamath Project (Project). The UKBCA also contains
conditions that must be achieved before the UKBCA can become permanent.
Despite the efforts of the UKBCA parties, one or more conditions in
subsection 10.1 of the UKBCA have failed to occur. Accordingly,
pursuant to the terms of subsection 10.2 of the UKBCA and as further
described below, this statement serves as a ``Negative Notice'' that
the UKBCA is terminated as set forth in UKBCA subsection 10.2.
DATES: The termination of the UKBCA is effective on December 28, 2017
or, if judicial review of the termination is timely sought, then the
effective date of the termination shall be the date on which the
termination is sustained following any and all appeals.
ADDRESSES: The Upper Klamath Basin Comprehensive Agreement (UKBCA) is
available at www.oregon.gov/gov/policy/environment/taskforce/Pages/Final_Upper_Klamath_Basin_Comprehensive_Agreement_Documents.aspx.
FOR FURTHER INFORMATION CONTACT: Address all comments and requests for
additional information to Christina Kalavritinos, Senior Advisor,
Commissioner's Office, Bureau of Reclamation, (202) 513-0509.
SUPPLEMENTARY INFORMATION: On February 18, 2010, the Tribes joined more
than 60 other parties in signing the Klamath Basin Restoration
Agreement (KBRA). A subset of those parties signed a second agreement,
the Klamath Hydroelectric Settlement Agreement (KHSA), that same day.
Those two agreements aimed to restore the Basin fisheries and sustain
local economies by restoring fish habitat and implementing a water-
sharing agreement among the parties who rely upon water from Upper
Klamath Lake (Lake) and the Klamath River. A majority of the water
users living above (upstream of) the Lake did not agree to this water-
sharing agreement, so the KBRA provided only general direction on a
possible Upper Basin water-sharing agreement.
In spring 2013, the Oregon Water Resources Department (OWRD) ruled
that the Tribes and United States held water rights for maintaining
water levels in the major tributaries above the Lake. The Klamath
County Circuit Court subsequently determined that enforcement of those
determined in-stream flow rights should not be stayed. In summer 2013,
at the request of the Governor of Oregon and several Congressional
representatives, the Tribes began negotiating with the State and the
non-Indian water users who are upstream of the Lake and not affiliated
with the Project (referred to as ``Off-Project irrigators''), in an
effort to reach a water-sharing and habitat restoration agreement that
would benefit their respective interests. The resulting agreement, the
UKBCA, was executed on April 18, 2014.
The UKBCA included:
A Water Use Program that would increase inflow into the
Lake by an annual average of at least 30,000 acre feet by reducing
consumptive water use in key reaches of the tributaries above the Lake,
while also providing a stable, sustainable basis for the continuation
of irrigated agriculture;
A Riparian Program designed to improve and protect
riparian conditions;
An Economic Development Program designed to create
economic opportunities for the Tribes and its members;
Increased opportunities for the exercise of Tribal
cultural rights; and
A Transition Period to allow for the elements of the UKBCA
to be phased in over time.
The UKBCA established a five-year transition period with interim
milestones and operating procedures. The parties anticipated that once
the conditions contained in subsection 10.1 of the UKBCA were achieved,
the UKBCA would become permanent. During the transition period, the
Tribes
[[Page 61583]]
agreed to limit the enforcement of their determined water rights so
long as the other parties to the UKBCA met specific interim milestones.
In 2017, those interim milestones were not achieved and the Tribes
(with the concurrence of the United States as trustee) requested that
OWRD fully enforce their determined water rights; OWRD complied with
the request.
All three settlement agreements (KBRA, KHSA, and UKBCA) have
interdependencies. For example, the UKBCA was premised in key part on
Federal funding being provided for certain actions under the KBRA.
Because the KBRA required congressional approval to become fully
enforceable and funded, and because Congress failed to act within the
time frame set by the KBRA, the KBRA expired of its own terms on
December 31, 2015.
After the KBRA expired, the Tribes notified the Secretary in a
January 12, 2016, letter that they believed their bargained-for
benefits under the UKBCA and KBRA could not be realized. The Tribes
asked the Secretary to issue a Negative Notice as contemplated under
subsection 10.2 of the UKBCA. Subsection 10.2 of the UKBCA states that
the Secretary shall issue a Negative Notice resulting in termination of
the UKBCA if, after completion of required dispute resolution
processes, the Secretary determines that there is ``no reasonable
likelihood'' that all required conditions set out in subsection 10.1 of
the UKBCA can be met. As noted in the Tribes' letter, several
conditions listed in subsection 10.1 required the enactment of Federal
legislation, which did not and has not happened.
The UKBCA allows the Secretary to make a preliminary determination
regarding whether the conditions contained in subsection 10.1 can be
achieved. On April 4, 2016, the Deputy Secretary responded with a
preliminary determination, tentatively agreeing with the Tribes but
nonetheless noting that subsection 10.2 of the UKBCA requires a ``meet
and confer'' process among the parties before a Negative Notice could
be issued. The Tribes invoked the meet and confer provisions in an
August 11, 2016, letter, and the parties met and conferred on October
4, 2016. That meeting was unsuccessful in resolving the issues between
the parties.
On December 4, 2016, some Off-Project irrigators invoked the
mediation provision in subsection 11.2 of the UKBCA in an effort to aid
the meet and confer process. The Tribes also invoked this mediation
provision on December 12, 2016. The parties selected a neutral third-
party mediator and held a confidential mediation session on February
23, 2017. That effort did not resolve the differences between the
parties. The Tribes sent letters to the Secretary on April 26, 2017,
and September 11, 2017, reiterating their request that the Secretary
issue a Negative Notice. The Off-Project irrigators sent a letter to
the Secretary on April 28, 2017, asking that the Secretary refrain from
issuing a Negative Notice.
The Tribes are of the view that all three agreements--the KBRA, the
KHSA, and the UKBCA--need to be fully implemented in order to receive
their bargained-for benefits. The Tribes have highlighted this position
and concern to the other UKBCA parties and in their correspondence
requesting a Negative Notice. The UKBCA and KBRA were inextricably
linked. Many of the bargained-for benefits for the Klamath Tribes,
including funding for fishery and Tribal programs and the purchase of
land, were embedded in the KBRA. Funding for many of the actions in the
UKBCA, including water right retirements to achieve 30,000 acre-feet of
water savings and riparian corridor restoration, was similarly included
in the KBRA.
Statement of Findings
Subsection 10.1 of the UKBCA contains fifteen (15) conditions
(subsections 10.1.1 through 10.1.15) that all must occur before an
Affirmative Notice can be issued that would make the UKBCA permanent.
If I find that one or more of these conditions has not or cannot be
achieved, and thus there is no reasonable likelihood that an
Affirmative Notice will occur under section 10.1, then section 10.2
directs that a Negative Notice be published.
Subsection 10.1.3 of the UKBCA requires enactment of Federal
legislation authorizing the execution and implementation of the KBRA,
which the UKBCA defines as ``the agreement dated February 18, 2010, as
amended December 29, 2012.'' No legislation was passed by Congress
before December 31, 2015, and the KBRA expired of its own terms. Thus,
subsection 10.1.3 cannot be met. This fact alone means I will not be
able to issue an Affirmative Notice, and warrants issuance of a
Negative Notice.
I have reached a similar conclusion for subsections 10.1.1, 10.1.2,
and 10.1.4, which also require enactment of Federal legislation that
would authorize Federal participation in the UKBCA's Water Use or
Riparian Protection Programs and Federal participation on the Joint
Management Entity. No legislation was passed by Congress to enact these
provisions, and I am not aware of any pending legislation that would do
so in the foreseeable future. Accordingly, I also conclude that there
is no reasonable likelihood that these conditions will be met at any
time in the foreseeable future.
The lack of Federal legislation as required by subsections 10.1.1
through 10.1.4 also leads to the conclusion that there is no reasonable
likelihood that the additional conditions contained in subsections
10.1.10 through 10.1.13 will be met either. Without legislation
authorizing the KBRA, the Tribes do not intend to provide a notice of
willingness to proceed with the UKBCA (subsection 10.1.10). Moreover,
without authorizing legislation, I cannot sign the UKBCA (subsection
10.1.13). Similarly, the Landowner Entity and State of Oregon, like the
Tribes, must determine that Federal legislation authorizing the UKBCA
is materially consistent with the UKBCA (subsections 10.1.11 and
10.1.12).
In addition, other conditions in the UKBCA (subsections 10.1.6 and
10.1.7) require the appropriation of Federal funds to provide an
economic development fund for the Tribes, as well as funding to enable
the Joint Management Entity and Landowner Entity to carry out their
responsibilities under the UKBCA. Those funds have not been
appropriated, and I am not aware of any plans to provide this funding
in the foreseeable future.
Finally, the UKBCA contains a condition requiring the Klamath
County Circuit Court to enter a decree affirming the Tribes' water
rights as modified by the UKBCA (subsection 10.1.15). Again, without an
Act of Congress, there will be no finalized UKBCA, nor the settlement
it contemplates for the Klamath County Circuit Court to approve. The
unlikely completion of this final condition is further cause to find
that no reasonable likelihood remains for me to issue an Affirmative
Notice.
Thus, I conclude that the condition in subsection 10.1.3 cannot be
met and therefore there is no reasonable likelihood that I can issue an
Affirmative Notice. Moreover, consideration of all the other
unsatisfied conditions also leads me to the conclusion there is no
reasonable likelihood that I can issue an Affirmative Notice under
section 10.1. Each of the unsatisfied conditions alone is enough for me
to reach this conclusion and, when taken together as a whole, the same
is true. Accordingly, under the terms of the UKBCA, this Negative
Notice denotes the termination of the UKBCA.
[[Page 61584]]
Therefore, in accordance with section 10.2 of the UKBCA, I find as
follows:
(A) One or more conditions that must occur before I can issue an
Affirmative Notice have not been achieved and do not seem reasonably
likely to be achieved.
(B) There is no reasonable likelihood that an Affirmative Notice
can occur under subsection 10.1 of the UKBCA.
(C) As provided by subsection 10.2 of the UKBCA, I am publishing
this Negative Notice and stating that an Affirmative Notice under
section 10.1 will not be published.
(D) Under the terms of subsection 10.2 of the UKBCA, ``this
Agreement shall terminate on the date'' of publication of this Negative
Notice, or in the event that judicial review of the Negative Notice is
timely sought, on the date on which the Negative Notice ``is sustained
following any and all appeals.''
Dated: December 22, 2017.
Ryan Zinke,
Secretary of the Interior.
[FR Doc. 2017-28050 Filed 12-27-17; 8:45 am]
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