5 CONSULTATION AND COORDINATION This chapter summarizes the consultation and coordination with agencies, as well as the public involvement opportunities for the Environmental Impact Statement (EIS), through preparation of the Draft EIS. 5.1 C ONSULTATION WITH A GENCIES, O RGANIZATIONS, AND T RIBAL G OVERNMENTS 5.1.1 Agency Coordination 5.1.1.1 Cooperating Agencies The United States (U.S.) Forest Service (Forest Service) is the lead federal agency for this EIS. Two federal agencies, three state agencies, and Valley County are serving as cooperating agencies for this EIS and are listed below. These cooperating agencies are informing the EIS process and providing early input into certain issues addressed in the EIS, based on specific areas of jurisdiction by law and/or special expertise, and participating in development of an EIS that provides a full and fair disclosure of the probable impacts of the Stibnite Gold Project (SGP), and that provides a sound basis for agency permit decisions. The cooperating agencies participated in and informed the alternatives development and evaluation process to determine which alternatives would be carried forward for further analysis in the Draft EIS (see Chapter 2, Alternatives Including the Proposed Action). • United States Army Corps of Engineers (USACE) • United States Environmental Protection Agency (EPA) • Idaho Governor’s Office of Energy and Mineral Resources (OEMR) • Idaho Department of Lands (IDL) • Idaho Department of Environmental Quality (IDEQ) • Valley County Coordination with federal and state agencies was ongoing throughout the preparation of the Draft EIS with regularly scheduled calls and issue-specific meetings. Stibnite Gold Project Draft Environmental Impact Statement 5-1 5 CONSULTATION AND COORDINATION 5.1.1.2 Endangered Species Act Section 7 Consultation Section 7 of the Endangered Species Act requires all federal agencies, in consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (NMFS), ensure that actions funded, authorized, or carried out by federal agencies do not jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of critical habitat. The Forest Service has determined that the SGP may have the potential to impact threatened or endangered species protected under the Endangered Species Act, and therefore, the Forest Service requested initiation of consultation with the U.S. Fish and Wildlife Service and National Oceanic Atmospheric Administration Fisheries on June 21, 2018. A Biological Assessment will be prepared to evaluate potential impacts to terrestrial and aquatic endangered or threatened species. 5.1.1.3 Magnuson-Stevens Fishery Conservation and Management Act Essential Fish Habitat Consultation The NMFS is responsible for protecting habitats important to federally managed marine species, which includes anadromous Pacific salmon. Federal agencies must consult with NMFS concerning any action that may adversely affect Essential Fish Habitat (EFH) under the Magnuson-Stevens Fishery Conservation and Management Act. EFH includes habitats necessary to a species for spawning, breeding, feeding, or growth to maturity, which includes marine and riverine migratory corridors, spawning grounds, and rearing areas of Pacific salmon species (NMFS 2017). Chinook salmon is the only species that has EFH designated within the SGP area. As defined, EFH includes “all streams, estuaries, marine waters, and other water bodies occupied or historically accessible to Chinook salmon in Washington, Oregon, Idaho, and California.” 5.1.2 Tribal Consultation and Government-to- Government Consultation Tribal governments have a special and unique legal and political relationship with the U.S. government as reflected in the U.S. Constitution, treaties, statutes, court decisions, executive orders, and memoranda. This relationship imparts a duty on all federal agencies to consult, coordinate, and communicate with American Indian tribes on a government-to-government basis. The intergovernmental consultation process serves as the primary means for the federal agencies to carry out their trust obligations. Consultation is not a single event, but instead is a process leading to a decision; for example, the Record of Decision for the SGP EIS. Consultation means different things to different tribes. It can be either a formal process of negotiation, cooperation, and policy-level decision-making between tribal governments and the federal government, or a more informal process. Tribal rights and interests are discussed and considered or incorporated into the decision. Consultation can be viewed as an on-going relationship between agencies and tribes, characterized by consensus-seeking approaches to Stibnite Gold Project Draft Environmental Impact Statement 5-2 5 CONSULTATION AND COORDINATION reach mutual understanding and resolve issues. It may concern issues and actions that could affect the government’s trust responsibilities, or other tribal interests. Consultation minimally serves five purposes: • To identify and clarify issues; • To provide for an exchange of existing information and identify where information is needed; • To identify and serve as a process for conflict resolution; • To provide an opportunity to discuss and explain the decision; and • To fulfill the core of the federal trust obligation. Because Native American tribes can be affected by the policies and actions of the Forest Service in managing the lands and resources under its jurisdiction, the Forest Service has a duty to consult with them on matters affecting their interests. Because of this government-to- government relationship, efforts were made to involve local tribal governments and to solicit their input regarding the proposed action. The Forest Service sent a letter of notification and inquiry to three tribes, the Nez Perce Tribe, the Shoshone-Bannock Tribes, and the Shoshone-Paiute Tribes, offering the opportunity to participate in formal government-to-government consultation, to participate as a cooperating agency, or to simply receive information about the SGP. The Forest Service first notified Nez Perce Tribe cultural resource staff about the SGP on March 1, 2017. Formal consultation with the Nez Perce Tribe was requested and initiated on May 23, 2017. The Nez Perce Tribe formalized opposition to the SGP in a resolution passed by the Nez Perce Tribal Executive Committee (the governing body of the tribe) on October 9, 2018 and announced opposition in a press release the same day. Despite formal opposition to the SGP, the tribe continues to participate in a previously established project-specific informal consultation process, including discussion on ways to avoid, reduce, or mitigate impacts. The Forest Service introduced the SGP to Shoshone-Paiute Tribal leadership during the Wings and Roots Program meeting (government-to-government consultation) on April 13, 2017. The SGP was formally presented to the Shoshone-Bannock Tribes Fort Hall Business Council and also informally to tribal staff on July 26, 2017. Updates to each of these tribes are provided on an ongoing basis during project-specific ad-hoc consultation meetings, and the Forest Service will continue to engage in government-to- government consultation following release of the Draft EIS. As of August 14, 2020, the following meetings had been held with each of the Tribes: • Nez Perce Tribe – 1 standing regularly scheduled government-to-government meeting and 2 project-specific government-to-government meeting; 4 standing regularly Stibnite Gold Project Draft Environmental Impact Statement 5-3 5 CONSULTATION AND COORDINATION scheduled staff-to-staff and 28 project-specific staff-to-staff meetings (these standing staff-to-staff meetings are anticipated to continue approximately monthly); • Shoshone-Paiute Tribes – 4 standing regularly scheduled government-to- government and 15 project-specific government-to-government meetings (these standing government-to-government meetings are anticipated to continue approximately bi- monthly); • Shoshone-Bannock Tribes – 2 government-to-government and 21 project-specific staff- to-staff meetings (these standing staff-to-staff meetings are anticipated to continue approximately monthly). The structure of formal government-to-government consultation is between tribal governing bodies (Council or Executive Committee) and Forest Service Line Officers. Staff-to-staff meetings usually include Forest Service technical specialists and tribal liaison and technical specialists. The Shoshone-Paiute Tribes do not conduct informal consultation; however, they have professionally moderated meetings between the Tribal Business Council Chair and the Forest Service Line Officers, with other members of the Council and/or tribal staff occasionally attending as well. U.S. Army Corps of Engineers has been represented in one or more project-specific Forest Service consultation meetings with each of these tribes, in an informal capacity, to offer information on the Clean Water Act Section 404 permitting process. The Nez Perce Tribe, Shoshone-Paiute Tribes, and Shoshone-Bannock Tribes were invited on April 30, 2020, to participate in development of a project-specific Programmatic Agreement (PA) and an associated historic properties treatment plan, which are being prepared to mitigate impacts and address Section 106 of the National Historic Preservation Act (NHPA) compliance (discussed in a sub-section below). More information on tribal