INTERIOR BOARD OF INDIAN APPEALS

Big Sandy Rancheria Band of Western Mono Indians v. Acting Pacific Regional Director, Bureau of Indian Affairs

64 IBIA 302 (08/10/2017)

Related Board cases: 61 IBIA 311 62 IBIA 202 Department of the Interior OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

BIG SANDY RANCHERIA BAND OF ) Order Affirming Decision in Part, WESTERN MONO INDIANS, ) Vacating in Part, and Remanding Appellant, ) ) v. ) ) Docket No. IBIA 16-006 ACTING PACIFIC REGIONAL ) DIRECTOR, BUREAU OF INDIAN ) AFFAIRS, ) Appellee. ) August 10, 2017

Big Sandy Rancheria Band of Western Mono Indians (Appellant or BSR) appealed to the Board of Indian Appeals (Board) from a September 3, 2015, decision (Decision) of the Acting Pacific Regional Director (Regional Director), Bureau of Indian Affairs (BIA), to accept, in trust for the (Tribe or Table Mountain), 8 parcels of land encompassing approximately 147 acres located in Fresno County, (the Parcels).1 Appellant owns land adjacent to the Parcels and holds an easement across one of the tracts to be taken in trust.

On appeal to the Board, Appellant argues that the Regional Director failed to consider potential conflicts of land use that would result from taking the land in trust in light of past conflicts over access and use of Appellant’s easement. Appellant contends that due to the possibility of future conflicts regarding use of its easement, the Regional Director erred in failing to place any “enforceable conditions” on the trust title. Appellant also contends that the Regional Director failed to comply with the tribal consultation requirements of the National Historic Preservation Act (NHPA), 54 U.S.C. § 300101 et seq., in reviewing Table Mountain’s fee-to-trust application, and that the Regional Director therefore erred in approving the application.

While we find sufficient evidence in the record and the Decision to show the Regional Director adequately considered Appellant’s concerns that the Tribe would block its use of the easement, the record is silent in regard to consideration by BIA of Appellant’s

1 The legal description of each parcel is provided in the Decision. The subject property consists of Assessor’s Parcel Numbers 300-210-23, 300-032-32, 300-032-33, 300-032-34, 300-380-02, 300-380-08, 300-380-19, and 300-380-20. 64 IBIA 302

concerns regarding the enforceability of the easement after trust acquisition. And while BIA apparently intended to make a finding of “no historic properties affected” by the proposed trust acquisition because no change in land use was proposed by the Tribe, BIA’s Decision characterized its finding as having “no adverse effect,” which has a different meaning in the context of the applicable regulations and appears to have been the basis of the concurrence provided by the State Historic Preservation Officer. This calls into question BIA’s compliance with the procedural requirements for consultation under Section 106 of the NHPA. Thus, while we affirm the Regional Director’s decision in all other respects, we vacate the Decision to the extent that it fails to address the enforceability of Appellant’s easement over the parcel proposed for trust acquisition, and remand with instructions for the Regional Director to consider Appellant’s concerns regarding enforcement of its easement rights. We also remand the Decision for BIA to clarify the regulatory basis of its finding regarding the effect, if any, of the proposed undertaking on historic properties, to review BIA’s compliance with the procedural requirements of Section 106, and to complete, as appropriate, Section 106 consultation with consulting parties, including Appellant, concerning the proposed undertaking.

Background

On August 30, 2010, the Regional Director received a fee-to-trust application from Table Mountain. See 147-Acre Fee-To-Trust Application, July 2010 (Application) (Realty Administrative Record (AR) 1).2 Table Mountain requested that the Secretary of the Interior accept into trust 8 parcels of land owned in fee simple by the Tribe. Id. at 1. The Parcels total 147 acres and are contiguous to the eastern border of Table Mountain’s reservation. Id. Five residences are located on the Parcels. Id. The surrounding land is used for cattle grazing, rural residential development, and recreational purposes. Id.

In its application, Table Mountain stated that it sought to have the Parcels taken into trust to “facilitate self[-]determination and economic independence through consolidation of resources,” and to further Table Mountain’s goal of reestablishing its traditional land base. Id. at 2-3; see also Application, Exhibit (Ex.) 3, Tribal Council Resolution No. 2010- 09, May 11, 2010, at 1 (unnumbered) (stating the trust acquisition would facilitate Tribal self-governance and self-determination). Table Mountain did not propose any change in land use or “any ground disturbing activity.” Application at 3. In its application, Table Mountain stated that it did not anticipate jurisdictional problems or potential conflicts of land use after the land was taken in trust. Id. at 4. It noted that while civil jurisdiction would be exercised by the Rancheria, criminal enforcement authority would continue to be

2 The administrative record was provided as digital files, divided into two sections or folders: “Realty” and “NHPA.” For ease of identification, we refer to documents provided in the administrative record by folder name and document number. 64 IBIA 303 held by State of California and local law enforcement agencies, law enforcement and fire protection services would continue to be provided by Fresno County, and criminal prosecutions of offenses committed on Table Mountain’s land would continue to be brought in State courts. Id. Table Mountain submitted an Environmental Overview and title evidence in the form of a U.S. ALTA Title Insurance Commitment dated June 30, 2010, which enumerated known exceptions to title. Id. at 5.

The Regional Director notified Appellant, the State of California, Fresno County agencies, and Cold Springs Rancheria of Table Mountain’s fee-to-trust application by certified mail dated March 22, 2012. Notice of (Non-Gaming) Land Acquisition Application, Mar. 22, 2012 (Notice of Application) (Realty AR 7). As relevant to this appeal, Appellant responded to the Regional Director, raising concerns regarding its access to an easement across one of the parcels and the protection of historical and cultural resources within the Parcels.

I. Easement

On April 24, 2012, Appellant submitted comments on the Tribe’s fee-to-trust application. Letter from Appellant to Regional Director, Apr. 24, 2012 (BSR Comments on Application) (Realty AR 13). Appellant noted that the Title Insurance Commitment submitted by Table Mountain referenced an easement across one of the parcels in the fee-to- trust application, APN 300-380-08 (Parcel 6), that provides access to certain of Appellant’s fee lands, including APN 300-380-09 (BSR Parcel 9). Id. at 2-3. BSR Parcel 9 is adjacent to the northern boundary of Parcel 6. See Email from Sally Eredia, attorney for Appellant, to BIA, Feb. 17, 2015, Ex. F (Assessor’s Map Bk. 300 – Pg. 38) (showing location of Parcel 6, BSR Parcel 9, and the easement across Parcel 6 to the western boundary of BSR Parcel 9) (Realty AR 27 at 35-36). The easement also appears to provide access to parcel APN 300-032-41 (BSR Parcel 41), also apparently owned in fee by Appellant, directly north of BSR Parcel 9. Id. at 36-37 (Assessor’s Map Bk. 300 – Pg. 03). The easement connects Millerton Road, on the south-west side of Parcel 6, with the south-west boundaries of BSR Parcels 9 and 41. Id. at 36. The eastern boundaries of both Parcel 6 and BSR Parcel 9 share a border with the McCabe Allotment, which is held in trust by the United States for Sherrill Esteves, an individual Indian. BSR Comments on Application at 2; Letter from Appellant to Regional Director, Mar. 1, 2013, at 1 (unnumbered) (identifying Esteves as owner of the McCabe Allotment) (Realty AR 21); see Realty AR 27 at 40-41, Ex. G (map showing location of McCabe Allotment, Big Sandy Property, Table Mountain Property, and Easement). Appellant stated that Esteves is one of its members and that it exercises tribal jurisdiction over the McCabe Allotment, which Appellant stated is located approximately 12 miles from Big Sandy Rancheria and lies within its aboriginal territory. BSR Comments on Application at 2. Appellant contended that the Title Insurance Commitment erroneously stated that the easement was held by “John Slater and

64 IBIA 304

Marion Slater . . . and Steve Wilson and Linda Braun Wilson, as trustee,” because both BSR Parcel 9 and the easement had been purchased by QBS, LLC (QBS), a Nevada limited liability company. Id. at 3-4. Appellant stated that “[a]s of January 6, 2006 up to the present, [QBS] owns a 100% interest in the land conveyed in the Wilson/Slater deed, including a 100% ownership interest in the Easement over [Parcel 6].” Id. at 4. Appellant also claimed that QBS was wholly owned by Appellant and that Appellant was therefore “the sole owner and beneficiary of the Easement.” Id.

In its written response to comments generated by BIA’s Notice of Application, Table Mountain stated that, while Appellant provided documentation that ownership of the easement over Parcel 6 was conveyed to QBS, there was no documentation confirming a subsequent transfer of ownership from QBS to Appellant. See Letter from Table Mountain to Regional Director, July 5, 2012, at 2 (Response to Comments) (Realty AR 20). Table Mountain noted that QBS was “a Nevada formed and organized LLC, not a tribal entity that is authorized to do business in California,” or a Big Sandy Rancheria governmental entity or tribal corporation. Id.

Appellant met with the Regional Director’s office on February 20, 2013, to discuss Appellant’s concerns regarding its use of the easement and access to the McCabe Allotment, were Parcel 6 to be acquired in trust for the Tribe. See Realty AR 21 at 1 (unnumbered). Appellant’s concerns were not resolved, however, and Appellant requested another meeting “in the very near future.” Id. at 2 (unnumbered). The record does not indicate whether a subsequent meeting was held, and on July 10, 2013, Appellant requested that BIA “withhold processing” the fee-to-trust application until Appellant could legally record the easement in Appellant’s name, though Appellant also continued to maintain that as sole owner of QBS, it already held beneficial title to the easement. Letter from Appellant to Regional Director, July 10, 2013, at 1-2 (unnumbered) (Realty AR 22).

Appellant also alleged that Table Mountain had “continuously blocked access to [the] easement by installing a gate to block access to the property and refusing access upon . . . request.” Id. at 2 (unnumbered). Appellant stated that it had only been able to access the easement when accompanied by the Fresno County Sherriff and that, if BIA accepted the Parcels into trust, its ability to obtain the assistance of the County Sherriff would be “impeded.” Id. Appellant then requested that BIA exclude the portion of Parcel 6 containing the easement from consideration for trust acquisition, transfer title of “the land consisting of the easement” to Appellant, or convert the easement to a county road. Id. Finally, Appellant requested that “enforceable restrictions” be placed on the land title and that BIA provide “enforceable assurances . . . that [Appellant’s] exclusive and unfettered access to the easement will be assured.” Id. Appellant demanded that BIA, Appellant, and Table Mountain enter into a written agreement ensuring Appellant’s “enforceable right to the easement through [Table Mountain’s] property,” which included a

64 IBIA 305 waiver of immunity by Table Mountain, prior to the transfer of the land from fee to trust status. Id.

The Regional Director acknowledged receipt of the July 10, 2013, letter, along with other correspondence from Appellant, and requested that Appellant submit documentation of the transfer of title of the easement to Appellant. Letter from Regional Director to Appellant, Aug. 12, 2013 (Realty AR 23). The Regional Director also stated that BIA “does not have the authority to exclude portions of a Tribe’s application based on the request of another Tribe,” or require that Table Mountain waive its sovereign immunity, but if BIA took the Parcels in trust, the land would be “subject to all exceptions determined valid and acceptable under the Department of Justice Title Standards.” Id. at 1-2.

On August 26, 2013, Appellant submitted chronological chain of title documents demonstrating the transfer of ownership of the non-exclusive easement to, ultimately, Appellant. Letter from Appellant to Regional Director, Aug. 26, 2013, at 2 (Realty AR 24); Realty AR 27, Ex. A (Slater to Bull Pine Investors Grant Deed, recorded Nov. 21, 2000); Ex. B (Bull Pine Investors to QBS, LLC Grant Deed, recorded Apr. 1, 2004); Ex. C (Wilson to QBS, LLC Grant Deed, recorded Jan. 6, 2006); Ex. D (QBS, LLC to Big Sandy Rancheria Grant Deed, recorded July 29, 2013).3 Appellant requested that BIA update its title documents for Table Mountain’s fee-to-trust application to reflect Appellant’s ownership of the easement. Realty AR 24 at 2. Appellant also requested that, if BIA takes Parcel 6 in trust, it place enforceable conditions in the title that include “enforceable rights for [Appellant] to utilize its legal easement” and “demonstrate that [BIA] will make every effort to fulfill its trust responsibility to [Appellant].” Id.

Due apparently to the retirement of BIA’s Realty Officer, Appellant’s August 26, 2013, letter and documentation of Appellant’s ownership of the easement were not processed by BIA until February 2015. See Intervenor’s Response Brief (Br.), Feb. 4, 2016, at 4 (Answer Br.). BIA then submitted the materials to Table Mountain for “review and response.” Letter from Regional Director to Table Mountain, Feb. 19, 2015 (Realty AR 28). Specifically, the Regional Director requested that Table Mountain respond to Appellant’s concerns that “easement access and ownership issues are being resolved prior to issuance of the Notice of Decision.” Id.

3 The copy of the August 26, 2013, letter contained in the record at Realty AR 24 does not include copies of the original attachments. In February 2015, BIA informed Appellant that it could not locate the attachments, and requested that Appellant send another copy of the documents. Email from BIA to Appellant, Feb. 3, 2015 (Realty AR 26). Appellant resubmitted the letter and attachments on February 17, 2015. Realty AR 27 (attaching the Aug. 26, 2013, letter and its attachments). 64 IBIA 306

Table Mountain responded to the Regional Director by letter, stating that it was moving fencing that had been in place when it acquired Parcel 6 that prevented Appellant from accessing its fee property, and removing the gate that had blocked easement access. Letter from Table Mountain to Regional Director, Mar. 2, 2015, at 2 (Realty AR 29). The Tribe also asserted that due to the rough terrain, including a boulder-covered hill running the full width of the easement at one point, Appellant would not be able to access its fee lands via the easement past the natural barrier. Id.; see id. Attachment (Attach.), Map of BSR Access Roads (identifying Bullpine Easement,4 Table Mountain, and Big Sandy property); Map of Bullpine Easement (identifying fence realignment and “impassable area, rough terrain”). The Tribe stated that Appellant “has never used the easement to access its fee property” and that Appellant could access the fee property at issue via other roads through Appellant’s own property. Id. at 1-2. Table Mountain stated that it was removing man-made barriers across the easement and “will not be responsible for blocking easement access.” Id. at 2. Finally, Table Mountain stated that “the Tribe does not object to adding a condition of easement access to the trust title,” provided that any condition “adheres to the recorded easement.” Id.

II. NHPA Section 106 Consultation Process

On January 31, 2013, the Regional Director notified the State Historic Preservation Officer (SHPO) for the State of California of its desire to initiate Section 106 consultation concerning Table Mountain’s fee-to-trust application. Letter from Regional Director to SHPO, Jan. 31, 2013, at 1 (unnumbered) (NHPA AR 15).5 The Regional Director identified the Parcels as the Area of Potential Effect (APE) of the proposed Federal undertaking, and stated that Table Mountain did not propose any change in land use for the APE. Id. She explained that the Tribal Cultural Resources Department conducted a Phase I cultural resources inventory of the APE between February 10, 2005, and September 26, 2008, which identified five new archaeological resources and two previously recorded resources. Id. BIA recommended that all seven of the archaeological sites be

4 Appellant’s easement across Parcel 6 is identified on the Tribe’s maps as the Bullpine Easement. 5 The original NHPA administrative record contains documents 1 through 13, and 16. Following Appellant’s submission of its opening brief, BIA submitted a request to supplement the record. Request to Supplement the Record, Feb. 9, 2016. Included with this request were three documents, identified as (1) Letter from SHPO to BIA, dated February 14, 2013, and labeled “Exhibit 14;” (2) Letter from BIA to SHPO, dated January 31, 2013, and labeled “Exhibit 15;” and (3) Letter from BIA to Appellant, dated November 6, 2013, and labeled “Exhibit 19.” We refer to these 3 documents, respectively, as NHPA AR 14, 15, and 19.

64 IBIA 307

treated as eligible for inclusion on the National Register of Historical Places, and concluded that, because the fee-to-trust acquisition would not result in a change of land use, “there will be No Adverse Effect as a result of this proposed federal undertaking.” Id. at 2 (unnumbered) (emphasis in original). The Regional Director stated that “SHPO concurrence with this determination evidences BIA fulfillment of federal regulations pursuant to 36 C.F.R. § 800.4(d)(1), and in compliance with Section 106 of the NHPA.” Id.

The Regional Director also invited a number of tribes, including Appellant, to participate as consulting parties in the Section 106 consultation process for the trust acquisition of the Parcels.6 In the invitation letters, the Regional Director stated that BIA understands the “sensitive nature” of information regarding historic properties, and that such information would be “used only to meet the requirements under Section 101(d)(6)(B) of the NHPA.’’7 E.g., NHPA AR 8.

Appellant accepted the Regional Director’s invitation to become a consulting party and expressed concerns that the fee-to-trust acquisition could have impacts upon the cultural resources within the Parcels. Letter from Appellant to Regional Director, Mar. 1, 2013 (NHPA AR 11). Appellant asserted that the lands subject to the proposed trust acquisition were within the aboriginal territory of Appellant’s ancestors, the Western Mono Indians, and included “significant cultural and religious sites.” Id. at 1. Appellant also expressed a concern regarding Appellant’s “Federally-protected rights to these sites under Federal and state law” if they were taken in trust on behalf of a different tribe. Id. at 2.

6See, e.g., Letter from Regional Director to Appellant, Feb. 9, 2013 (NHPA AR 8); Letter from Regional Director to North Fork Rancheria, Feb. 9, 2013 (NHPA AR 5); Letter from Regional Director to Picayune Rancheria of the Chukchansi Indians, Feb. 8, 2013 (NHPA AR 6); Letter from Regional Director to , Feb. 9, 2013 (NHPA AR 7); Letter from Regional Director to Cold Springs Rancheria of Mono Indians, Feb. 9, 2013 (NHPA AR 9). 7 The NHPA was reorganized and recodified by Pub. L. No. 113-287, 128 Stat. 3094 (Dec. 19, 2014), as part of a larger effort to better organize and streamline all the statutes related to the National Park Service. NHPA statutes previously codified at title 16 of the U.S. Code were moved to title 54, beginning with § 300101, with minimal and non- substantive changes to the text of the Act and a re-ordering of some of its provisions. The recodification does not change the underlying responsibility of a Federal agency, such as BIA, in regard to a Federal undertaking. The section that the Regional Director referred to as “Section 101(d)(6)(B)” is now found at 54 U.S.C. § 302706(b). It provides, in pertinent part: “[A] federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to property [of traditional, religious, and cultural importance.]” 64 IBIA 308

On February 15, 2013, BIA received the SHPO’s response to BIA’s January 31, 2013, letter initiating consultation in regard to the proposed trust acquisition. NHPA AR 14 at 2. The SHPO accepted BIA’s delineation of the APE and the level of effort for identifying historic properties, and stated: “Pursuant to 36 C.F.R. Part 800.5(b), . . . I concur with [BIA’s] ‘No Adverse Effect’ as the undertaking proposes no changes in current land use and only involves the transfer of land into Federal ownership.” Id.

On July 1, 2013, the Regional Director informed Appellant that the SHPO had concurred with BIA’s determination of No Adverse Effect concerning the trust acquisition of the Parcels and that “the Section 106 historic preservation compliance consultation process . . . has now been completed.” Letter from Regional Director to Appellant, July 1, 2013 (NHPA AR 13). The Regional Director recognized Appellant’s concerns regarding the protection of cultural resources on the property after the trust conveyance, but noted that BIA understood that Table Mountain wished to bring the land into trust with no change in land use. Id. On July 10, 2013, Appellant reiterated its “grave concerns” with regard to access to its easement and with the allegedly “inadequate ‘Section 106’ consultation.” Letter from Appellant to Regional Director, July 10, 2013 at 1 (NHPA AR 16) (also located at Realty AR 22). Appellant alleged that, because of Table Mountain’s “past practice of knowingly destroying historical and cultural resources,” similar adverse actions could be expected on the land subject to the proposed trust acquisition. Id. at 2-3 (unnumbered). Appellant called for restrictions to be imposed on the land and for “assurances that there will never be development on the property.” Id. at 3 (unnumbered). Appellant also repeated a request it had previously made for the Tribe’s fee-to-trust application, environmental reports, and cultural resources reports. Id. Apparently because BIA had previously stated that it could not release the cultural resources reports due to confidentiality concerns, Appellant requested “direct access” to the Parcels to conduct its own cultural resources study. Id. The record does not indicate that BIA responded to this communication or the requests made therein,8 however, it released two cultural resources reports concerning the Parcels to Appellant on November 6, 2013. NHPA AR 19.

III. Regional Director’s Decision

On September 3, 2015, the Regional Director issued her Decision to have the Parcels accepted by the United States in trust for the Table Mountain Rancheria. Decision,

8 The administrative record does not include any record of Appellant’s request or of a communication from BIA denying Appellant’s request for the cultural resources reports related to the proposed trust acquisition. The Board reminds the Regional Director that the administrative record is to include “all information and documents” used by the Regional Director in rendering the decision, including “all supplemental documents that set forth claims of interested parties.” 43 C.F.R. § 4.335. 64 IBIA 309

Sept. 3, 2015 (Realty AR 30). She determined that the Parcels were contiguous to the Table Mountain Rancheria at the easterly boundary and analyzed Table Mountain’s application under the criteria of 25 C.F.R. § 151.10, the regulations governing consideration of trust acquisition of land located within or contiguous to an Indian reservation. Id. at 6, 11-14. The Regional Director determined that the fee-to-trust acquisition would “not only facilitate self-determination, but [would] aid in the promotion of economic stability.” Id. at 12. The Regional Director addressed comments submitted by Appellant, the State of California, and the County of Fresno, as well as Table Mountain’s responses to comments. Id. at 6-12.

Appellant filed a notice of appeal and an opening brief. Table Mountain, as an interested party, filed an answer brief, and Appellant filed a reply brief. On February 9, 2016, within the period allowed for filing answer briefs, BIA filed a request to supplement the record, and the Board offered Appellant an opportunity to respond. Order Regarding BIA’s Request to Supplement Record, Feb. 19, 2016. Appellant responded to the content of the documents submitted by BIA, but did not object to BIA’s supplementation of the record. Response to BIA Request to Supplement Record, Feb. 29, 2016, at 3. With its reply brief, Appellant also submitted its own request to supplement the administrative record with letters between Appellant and Table Mountain regarding the easement across Parcel 6. Appellant’s Request to Supplement Record, Feb. 23, 2016. We grant BIA’s request to supplement the administrative record with the proffered documents. The Board need not decide whether the documents submitted by Appellant are or should be part of the administrative record.9 The Regional Director may consider the documents during remand to the extent she finds them relevant.

Standard of Review

BIA’s decision to take land into trust on behalf of Indian tribes is discretionary, and we will not substitute our judgment for that of BIA. Desert Water Agency v. Acting Pacific Regional Director, 59 IBIA 119, 123 (2014). The Board reviews discretionary decisions to determine whether they are in compliance with the law, including any limitations imposed by regulations. Id. We review questions of law de novo. Aitken County, Minnesota v. Acting Midwest Regional Director, 47 IBIA 99, 104 (2008). The appellant bears the burden of showing error in the Regional Director’s decision. Frank v. Acting Great Plains Regional Director, 46 IBIA 133, 140 (2007).

9 The documents provided by Appellant appear to be referred to in its comments on the Notice of Application as Appellant’s Exhibit I. BSR Comments on Application at 4. The copy of the comments in the administrative record does not appear to include Exhibit I or any of the other exhibits referenced in Appellant’s comments. 64 IBIA 310

Discussion

On appeal to the Board, Appellant contends that the Regional Director failed to consider “several legal prerequisites” before issuing the Decision, and therefore the Decision must be “reversed.” Opening Br., Dec. 22, 2015, at 17. It contends that the Regional Director failed to consider, under 25 C.F.R. § 151.10(f), the conflict in land use that may arise from taking the land over which Appellant has a non-exclusive easement into trust, and that the Regional Director erroneously omitted the easement from the legal description of Parcel 6. Id. at 13-17. Appellant also argues that BIA failed to satisfy consultation requirements under Section 106 of the NHPA. Id. at 5-13.

I. Easement

Appellant alleges that the Regional Director failed to adequately consider conflicts of land use that may arise regarding Appellant’s access to and use of its easement across Parcel 6. Opening Br. at 13. Appellant states that its dispute with Table Mountain over access to the easement began in 2007, when Big Sandy Rancheria Tribal Council members attempting to access the easement were temporarily detained by officers of the Table Mountain Rancheria Police Department. Id. at 13-14. Appellant alleges that, in 2010, a tribal member was prevented from using the easement to access Appellant’s fee land to inspect it for cattle grazing purposes. Id. at 14. In that instance, the individual was allowed to use the easement following intervention of the Fresno County Sheriff’s Department. Id.

Appellant further contends that, “in approximately 2012, the Table Mountain Rancheria erected a locked gate at the entrance of the [e]asement, without providing a key to [Appellant].” Id.; Reply Br. at 4-5. However, Appellant also acknowledges that Table Mountain removed the gate in March 2015, see Opening Br. at 14 & Attach., Declaration of Elizabeth Kipp ¶ 10, after BIA provided Table Mountain documentation of Appellant’s ownership of record title to the easement. In fact, 7 days after receipt of evidence of Appellant’s ownership of the easement, Table Mountain informed BIA that it was moving fencing in place when it purchased Parcel 6 that prevented Appellant from accessing its fee properties and removing the gate that blocked easement access, and that it estimated work would be completed by March 6, 2015.10 Realty AR 29 at 2; see Realty AR 28 (certified mail receipt indicating delivery date of Feb. 23, 2015, of BIA’s letter with documentation of transfer of title of easement to Appellant).

10 While Table Mountain promptly removed the gate and moved fencing, it appears to continue to question Appellant’s ownership of the easement. In its answer brief, the Tribe refers to Appellant’s “purported ownership” of the easement, and questions Appellant’s ownership of QBS and the validity of the transfer of ownership of the easement from QBS to Appellant. Answer Br. at 16 & n.4. 64 IBIA 311

Nevertheless, Appellant maintains that there are “outstanding issues” regarding Appellant’s use of the easement. Opening Br. at 16. Appellant states that Table Mountain’s past behavior of blocking Appellant’s access constitutes “an actual and potential conflict of land use” that the Regional Director failed adequately to consider. Id. at 4; Reply Br. at 1. Appellant does not, however, claim that the current land use by Table Mountain, or any proposed change in land use following conveyance of title in trust, will itself create a land use conflict that the Regional Director failed adequately to consider. In its correspondence with the Regional Director, Appellant emphasized its concern regarding access to its fee property and to the McCabe Allotment, over which Appellant claims to exercise jurisdiction. See, e.g., Realty AR 21 at 1 (unnumbered). On appeal to the Board, Appellant now states that it aspires to open a gaming facility on the McCabe Allotment sometime in the future, and that Table Mountain may decide to block access to Appellant’s easement due to its proximity to Table Mountain Casino. Opening Br. at 14. Appellant’s concern about a possible conflict in land use is clearly speculative, as it is based on its own future plans for use of the McCabe Allotment and whether the Tribe would abide by the easement. Inasmuch as Appellant alleges that a land use conflict could arise in the future due to Appellant’s aspirations to install gaming facilities on the McCabe Allotment, it is well- established that a regional director has no obligation to consider an appellant’s speculation regarding what may occur in the future. See State of New York v. Acting Eastern Regional Director, 58 IBIA 323, 350 (2014) (citing City of Eagle Butte, South Dakota v. Acting Great Plains Regional Director, 49 IBIA 75, 82 (2009)).

Appellant also contends that the Regional Director erred in failing to include “any enforceable conditions on the trust title of [Parcel 6] that provides [Appellant] with a legal right to enforce the use of its [e]asement, and to enjoin Table Mountain Rancheria from blocking access to the [e]asement.” Opening Br. at 16. As demonstrated above, the enforceability of Appellant’s easement was a recurring concern raised to the Regional Director by Appellant following the issuance of the Notice of Application. See, e.g., Realty AR 21 at 1-2 (unnumbered) (“[Appellant] reiterates its concern over its rightful and unfettered access to its easement . . . .”); Realty AR 22 at 2 (unnumbered) (requesting that “enforceable restrictions” be placed on the title and that BIA provide “enforceable assurances” of Appellant’s “exclusive and unfettered access to the easement”11); Realty AR 24 at 2 (unnumbered) (requesting that conditions be placed on the title assuring “enforceable rights” for Appellant’s use of the easement). Despite Appellant’s clearly stated concern regarding the enforceability of its title to the easement, the record is silent on BIA’s consideration of this issue.

11 Although Appellant requests “exclusive and unfettered access” to the easement, it recognizes elsewhere that its easement is non-exclusive. See, e.g., BSR Comments on Application at 1 (quoting grant deed description of easement as “a non-exclusive easement for ingress, egress and public utilities”). 64 IBIA 312

Once Appellant demonstrated that it was the owner of record of the easement, the Regional Director had a responsibility to address Appellant’s concerns. South Dakota v. Acting Great Plains Regional Director, 63 IBIA 179, 189-90 (2016) (holding that although BIA was not obligated to speculate on whether the tribe would comply with a restrictive covenant, BIA was required to address appellant’s argument that the restrictive covenant would be less enforceable after trust acquisition). Other than referring Appellant’s concerns to Table Mountain for response, see Realty AR 28; Decision at 7, there is no evidence in the record that the Regional Director considered Appellant’s concerns regarding enforceability of its easement. Merely summarizing in the Decision Appellant’s comments and Table Mountain’s response to those comments, see Decision at 6-7, without any discussion of Appellant’s concerns regarding enforceability of its easement, does not suffice to show that BIA considered Appellant’s objections.

The Regional Director’s failure to convey to Appellant the Tribe’s apparent willingness to consider options for addressing the easement issue is particularly mystifying. In its letter of March 2, 2015, Table Mountain stated that it would consider “adding a condition of easement access to the trust title,” as long as the condition was consistent with the recorded easement. AR 29 at 2. Appellant contends the Regional Director did not convey this option to Appellant, see Opening Br. at 3, nor does the record indicate that the Regional Director pursued the matter with Table Mountain.

As the Board has consistently emphasized, “[i]n deciding whether to accept land in trust for a tribe, BIA is not required to resolve objections . . . . But BIA’s consideration of comments and objections, individually or collectively, must be demonstrated in the decision or the record.” South Dakota, 63 IBIA at 180; Crest-Dehesa-Granite Hills-Harbison Canyon Subregional Planning Group v. Acting Pacific Regional Director, 61 IBIA 208, 214-16 (2015) (remanding due to failure to address in the decision or the record appellants’ concerns regarding protection of their easement rights). Here, the Regional Director failed to demonstrate, either in the Decision or the record, that Appellant’s concerns regarding the enforceability of its easement were considered. The Board therefore vacates the Decision to the extent that it fails to address the enforceability of Appellant’s easement following trust acquisition, see Decision at 14, and remands the matter to the Regional Director for further consideration of that issue.12

12 The Regional Director’s consideration is not limited to Table Mountain’s March 2, 2015, proposal, assuming it remains available. And while desirable, the successful resolution of disputes is not a legal precondition to trust acquisition. See, e.g., Starkey v. Pacific Regional Director, 63 IBIA 254, 266-69 (2016) (evidence in the record and discussion in the trust acquisition decision showed regional director provided ample consideration of appellants’ concerns regarding enforcement of easement rights). 64 IBIA 313

Appellant also alleges that BIA failed to identify its easement across Parcel 6 as a legal encumbrance on title because the easement is not included in the legal description of that tract. Opening Br. at 17. Appellant alleges that the legal description of Parcel 6 is “patently in error” because it fails to list Appellant’s easement, and seems to believe that the Regional Director failed to identify the easement as a legal encumbrance. See id. Appellant misapprehends the purpose and import of the legal descriptions of the tracts to be acquired provided in the Decision. The legal description of property in a fee-to-trust decision is intended only to identify the property subject to the acquisition decision; the legal description does not enumerate all of the recognized exceptions to or encumbrances on title. Title exceptions, which are specified property rights that are not included as part of the title to be conveyed, include legal encumbrances such as easements. Title exceptions identified in the title commitment report provided in the administrative record include the easement across Parcel 6. See Application, Ex. 6 (Title Insurance Commitment, Schedule B-II, Exceptions, at 4.10 ¶ 72, Aug. 12, 2010); see also Email from Lorrae Russell to Ryan Lee, Jan. 12, 2011, Attach. (Title Insurance Commitment, Schedule B-II, Exceptions, at 4.7 ¶ 48, Jan 6, 2011) (Realty AR 4) (updated title commitment). The 2010 Title Insurance Commitment submitted by the Tribe as part of its application to have land acquired in trust by the United States, and the 2011 updated title commitment report, both recognize the existence of the recorded easement, but do not list Appellant as the owner of record of the easement because Appellant did not then hold record title. Appellant subsequently documented that it held record title to the easement, which the Regional Director acknowledges in the Decision. See Decision at 7. Appellant has not shown error in the Regional Director’s legal description of Parcel 6.

II. NHPA Section 106 Consultation Process

The NHPA expresses a policy of supporting and encouraging the preservation of historic resources for present and future generations, and directs Federal agencies to consider such resources in their activities. See 54 U.S.C. § 300101 et seq. Section 106 of the NHPA requires Federal agencies to take into account the effects of their undertakings on historic properties. Id. § 306108. Thus, before approving a fee-to-trust acquisition, BIA must “take into account” the effect of the acquisition on properties of historical significance, which includes properties of cultural or religious significance to an Indian tribe. Id. §§ 306108, 302706(b); see also Big Sandy Rancheria Band of Western Mono Indians v. Pacific Regional Director, 61 IBIA 311, 315-17 (2015) (Big Sandy I) (discussing the NHPA in the context of fee-to-trust acquisitions). The NHPA’s implementing regulations, found at 36 C.F.R. Part 800, describe the process through which Federal agencies evaluate

64 IBIA 314 the possible effects13 their government undertakings14 could have upon historic properties.15 Pursuant to the statute and the regulations, BIA must consult with “any Indian tribe . . . that attaches religious and cultural significance” to historic properties that may be affected by an undertaking. 54 U.S.C. § 302706(b); 36 C.F.R. § 800.2(c)(2)(ii); see also Big Sandy I, 61 IBIA at 316.

Under the regulations, BIA initiates the Section 106 process by first determining “whether the proposed Federal action is an undertaking . . . and, if so, whether it is a type of activity that has the potential to cause effects on historic properties.” 36 C.F.R. § 800.3(a). If BIA determines that there is no undertaking, or that the undertaking is not the “type of activity” that has the “potential to cause effects on historic properties,” assuming such properties are present, the Section 106 process is complete. Id. § 800.3(a)(1).

However, if BIA determines that the undertaking has the potential to cause effects on historic properties, it must “identify the appropriate [SHPO] and other consulting parties, determine and document the area of potential effects, review existing information on historic properties within the area of potential effects, seek information from consulting parties and other individuals, identify historic properties, and evaluate the properties’ historic significance.” Big Sandy I, 61 IBIA at 316 (citing 36 C.F.R. §§ 800.3–.4). If BIA then concludes that there are no historic properties present, or that historic properties are present but will not be affected by the proposed undertaking, BIA must provide the SHPO with documentation of this finding, notify the consulting parties, including Indian tribes, and make the documentation available for public inspection prior to approving the undertaking. 36 C.F.R. § 800.4(d)(1). If the SHPO, or if it has entered the Section 106

13 “Effect” is defined as “alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register [of Historic Places].” 36 C.F.R. § 800.16(i). 14 “Undertaking” is defined as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval.” 54 U.S.C. § 300320; 36 C.F.R. § 800.16(y). 15 “Historic property” is defined as “any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places . . . . This term includes artifacts, records, and remains that are related to and located within such properties . . . includ[ing] properties of traditional religious and cultural importance to an Indian tribe . . . that meet the National Register criteria.” 36 C.F.R. § 800.16(l)(1). 64 IBIA 315

process, the Advisory Council on Historic Preservation (Council), does not object to such a proposed finding under 36 C.F.R. § 800.4(d)(1) within 30 days, this concludes the Section 106 consultation process. Id. § 800.4(d)(1)(i).

If, on the other hand, the agency official finds that there are historic properties that may be affected by the undertaking, the agency official must notify the consulting parties, invite their comment on the effects of the undertaking, and assess the adverse effects in accordance with § 800.5. Id. § 800.4(d)(2). A finding that historic properties may be affected advances the Section 106 consultation process to the next step, the assessment of adverse effects. Id. § 800.5. If, after applying the criteria of adverse effect listed at § 800.5(a)(1), the agency proposes a finding of “no adverse effect” from the undertaking, the agency must provide the documentation supporting its finding to the SHPO and consulting parties for review. Id. § 800.5(c). If neither the SHPO nor a consulting party objects to the proposed finding within the 30-day review period, the agency may begin implementation of the undertaking in accordance with the finding as documented. Id. §§ 800.5(c)(1) & 800.5(d)(1). If either the SHPO or a consulting party disagrees with the proposed finding, in writing, within the 30 day review period, the agency must either consult with the disagreeing party or request the Council to review the findings, and if Council review is requested, provide notice of the request and make the documentation submitted to the Council available to the public, consistent with the confidentiality provisions of the Act. Id. § 800.5(c)(2); see id. § 800.11(c) (Confidentiality).

Appellant contends that the Regional Director erred in failing to fulfill various consultation obligations under 36 C.F.R. § 800.5. Opening Br. at 5-13. Specifically, Appellant contends that the Regional Director was required to notify consulting parties, including Appellant, of BIA’s proposed finding of “no adverse effect” pursuant to § 800.5(c). Id. at 12. Appellant’s allegations of error regarding BIA’s consultation obligations are procedural rather than substantive; Appellant does not allege that the Regional Director erred in concluding that the fee-to-trust acquisition would have no effect on historic properties that is cognizable under the NHPA. Rather, Appellant contends that because the Regional Director characterized BIA’s finding as one of “no adverse effect,” this brought the Section 106 process necessarily to the next step, a finding of “historic properties affected,” and the assessment of adverse effects, if any, in accordance with § 800.5.

Appellant’s argument, and cases it cites, all pertain to situations where the agency made an initial determination that historic properties could be affected, see § 800.4(d)(2), but that any effect would not be adverse. Opening Br. at 6-8 (citing Confederated Tribes and Bands of the Yakama Nation v. U.S. Fish and Wildlife Service, 2015 U.S. Dist. LEXIS 38800 (E.D. Wash. Mar. 20, 2015); Comanche Nation v. United States, 2008 U.S. Dist. LEXIS 73283 (W.D. Okla. Sept. 23, 2008). In both of the cited cases, the proposed

64 IBIA 316

undertaking was acknowledged by the agency as affecting historic properties, thereby moving the analysis under § 800.5, and the more detailed consultation procedures required there. See Yakama Nation at *2, *20-25 (setting aside agency’s “no adverse effect” finding for failure to reopen consultation with affected tribes concerning expansion of public wildflower tours within a Traditional Cultural Property); Comanche Nation at *4, *55-58 (granting injunctive relief to tribe for agency’s failure to make “reasonable and good faith effort” to consult with the tribe regarding “no adverse effect” finding for proposed construction of military training facility near a National Register site of cultural and religious significance to the tribe).

Here, the Regional Director articulated the finding as “no adverse effect,” while stating that SHPO concurrence would complete the Section 106 process pursuant to 36 C.F.R. § 800.4(d)(1), which applies to findings of “no historic properties affected.” NHPA AR 15 at 2 (unnumbered). The SHPO concurred with BIA’s review and with the finding of “no adverse effect,” but grounded its concurrence on the regulations at 36 C.F.R. § 800.5(b), which apply where there is a finding that historic properties may be affected. NHPA AR 14 at 2. Because the SHPO’s concurrence with BIA’s determination was reached under 36 C.F.R. § 800.5 rather than § 800.4(d)(1), the Regional Director was obligated to either seek clarification—and correction, if so warranted—from the SHPO regarding the regulatory basis for its concurrence, or proceed with consultation as provided by § 800.5(c).16

And while BIA informed Appellant of the SHPO’s concurrence and the conclusion of Section 106 consultation, see NHPA AR 13, the record does not indicate that the Regional Director provided Appellant or other consulting parties with documentation of its finding, as required by 36 C.F.R. § 800.4(d)(1) for findings of no historic properties affected, or § 800.5(c) for findings of no adverse effect. See also id. §§ 800.11(d) & (e) (documentation requirements for each finding). Although BIA released the cultural resources reports on which its finding was based in November 2013, 4 months after it informed Appellant that consultation under the Section 106 process had concluded and almost 2 years before the Decision to take the Parcels in trust was issued, we do not believe the record supports that BIA provided Appellant a “reasonable opportunity to identify its

16 We are not convinced by Appellant’s reasoning that in stating the proposed trust acquisition would have “no adverse effect,” the Regional Director was thereby acknowledging that historic properties would be affected, though not adversely, thereby bringing the determination under the procedural requirements of § 800.5. See Opening Br. at 11 n.3; Reply Br. at 9-10. However, we agree that the Regional Director’s characterization of BIA’s finding as “no adverse effect” rather than “no historic properties affected,” created ambiguity. On remand, the Regional Director will have the opportunity to clarify or reconsider BIA’s finding. 64 IBIA 317 concerns” and advise BIA on the identification and evaluation of historic properties in the area affected by the proposed trust acquisition during the Section 106 consultation process, as required by § 800.2(c)(2).

In light of the Regional Director’s apparent failure to comply with the requirements of the NHPA, the Board remands the matter to the Regional Director for further consideration consistent with those requirements. On remand, the Regional Director shall clarify or reconsider BIA’s finding regarding the effect on any historic properties located in the area proposed for trust acquisition and seek concurrence from the SHPO on BIA’s finding. The Regional Director shall also complete, as appropriate, Section 106 consultation with consulting parties concerning the proposed undertaking and document its compliance in the record.

Conclusion

For the reasons discussed above, we affirm the Regional Director’s decision in part, but vacate it in part and remand to the Regional Director for further consideration and other action as appropriate on Appellant’s arguments regarding the enforceability of Appellant’s easement and the effect on historic properties and related consultation requirements regarding the proposed trust acquisition. On remand, the Regional Director shall consider each of these issues, and shall consider whether the arguments and objections that are considered on remand, viewed in the context of previously raised objections, and the Regional Director’s consideration of the application as a whole, persuade her to rescind or amend her decision to accept the Parcels in trust for the Tribe.

Therefore, pursuant to the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 43 C.F.R. § 4.1, the Board affirms the Regional Director’s September 3, 2015, decision in part, vacates it in part, and remands for further proceedings consistent with this decision.

I concur:

// original signed //original signed Robert E. Hall Thomas A. Blaser Administrative Judge Chief Administrative Judge

64 IBIA 318