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 United States 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 Table Mountain Rancheria (Tribe or Table Mountain), 8 parcels of land encompassing approximately 147 acres located in Fresno County, California (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.