Confederated Tribes
of the 
Umatilla Indian Reservation
Department of Natural Resources
Administration
P.O. Box 638
73239 Confederated Way
Pendleton, Oregon 97801
Area code 541 Phone 276-3447 FAX 276-3317

March 17, 2009

Technical Service Provider
Team, Natural Resources Conservation
Service, Technical Service Provider
Assistance Comments, P.O. 2890, Room
5234-S, Washington, DC 20013.

Re: Technical Service Provider Assistance Regulations

Submitted Electronically to www.Regulations.gov

The Confederated Tribes of the Umatilla Indian Reservation (CTUIR) Department of
Natural Resources (DNR) provides the following comments regarding the draft regulations
for the Technical Service Provider Assistance (TSPA) for the Natural Resources
Conservation Service (NRCS) published in the Federal Register. 74 Fed. Reg. 2800
(January 16,2009). Unfortunately, the CTUIR DNR was not aware that these regulations
were available for comment until we received an e-mail from the local NRCS
representative 11 days prior to the expiration of the 60 day comment period. Due to this
short timeframe, we were not able to give the draft regulations the full and careful review
that would otherwise have occurred. However, we do have the following comments on the
proposed regulations.

The CTUIR DNR has adopted the following "First Foods" mission:
"To protect, restore, and enhance the first foods - water, salmon, deer, cous, and
huckleberry -for the perpetual cultural, economic, and sovereign benefit of the
CTUIR. We will accomplish this utilizing traditional ecological and cultural
knowledge and science to inform: 1) population and habitat management goals and
actions; and 2) natural resource policies and regulatory mechanisms. "

This mission emphasizes the indivisible nature of natural resources and tribal culture. It
also provides a framework to identify management goals and leverage practical areas of
overlap with co-managers such as the NRCS. It is our intent to fulfill this mission for both
the benefit of the CTUIR, and agencies with Trust responsibility and who need to be
responsive to Tribal values, rights, and goals.

On the issue of tribal consultation, it is not clear that the regulations require consultation with tribes when actions NRCS funds off reservation directly impact a treaty reserved resource of the tribes. The regulations overall are silent on this issue. Tribal consultation is the cornerstone of the trust responsibility owed the tribes by federal agencies. Failing to mandate tribal consultation for projects which may impact treaty reserved resources is a significant oversight. This is not to presuppose that NRCS projects may damage treaty rights or resources, only that there may be impacts, good or bad. The CTUIR DNR suggests that the regulations require consultation with tribes to discuss impacts and evaluate the effectiveness ofthe program over time so that the NRCS can meet its trust
responsibility to the tribes.

The CTUIR expects the NRCS to comply with Section 106 of the National Historic
Preservation Act, 16 USC § 470 and 36 CFR § 800, for all it's undertakings including
Environmental Quality Incentives Program, Farm and Ranch Lands Protection Program,
Grassland Reserve Program, Healthy Forest Reserve Program, Technical Service Provider
Assistance program, Wetlands Reserve Program, Wildlife Habitat Incentives Program or
any other project of NRCS. In order to assess whether sites listed in or eligible for
inclusion in the National Register are within the Area of Potential Effect (APE), a cultural
resource investigation must be conducted. The SHPO/THPO and affected Tribes need to
be consulted with throughout the process. This includes reviewing cultural resource
reports in order to assess the effects the undertaking may have on cultural resources and
make any needed recommendations. The agency evaluates the historic significance of the
resources in consultation with the SHPO and affected tribes.

Currently for off-reservation projects, the NRCS provides the CTUIR with a spreadsheet
that includes location only to section and the type of activity that is to occur. There is no description as to the extent of the activity, just "stream rechannel" or "prescribed bum".  The CTUIR does not receive the results of the cultural resource investigations and
therefore has no idea what resources were identified and therefore potentially affected by
the proposed undertaking. The CTUIR believes that consultation is critical throughout the
process. As 36 CFR 800. 1(a) says, "The section 106 process seeks to accommodate
historic preservation concerns with the needs of Federal undertakings through consultation
among the agency official and other parties with an interest in the effects of the
undertaking on historic properties, commencing at the early stages of project planning.
The goal of consultation is to identify historic properties potentially affected by the
undertaking, asses its effects, and seek ways to avoid, minimize, or mitigate any adverse
effects on historic properties." The CTUIR feels that it is vital to be consulted with on the determination of the APE of the proposed undertaking and the results of the investigation to determine whether or not historic properties will be effected. Without this information, the CTUIR finds it difficult to assess whether historic properties of religious and cultural significance will be impacted.

Further, another issue has created some conflict with Washington State NRCS staff who
believe that funds identified in legislation for a specific purpose and specific recipient do not require compliance with Section 106 of the NHPA because the funds are "pass-through
funds." The Advisory Council on Historic Preservation, the federal agency responsible for
monitoring the implementation of the NHPA, has taken the position that unless the
legislation expressly exempts the funding from environmental laws in general or the
NHPA specifically, the federal agency must comply with Section 106. Please clarify this
directive to your state staff.

Again, due to the short time frame, we were not able to provide detailed review of the
regulatory proposal. In the future, I would appreciate notices such as these be mailed to
myself as the Director of DNR and Gordy Schumacher, program manager of the Forest,
Agriculture, and Range Programs. The CTUIR DNR expects a written response to the
questions posed in this letter. If you have any questions, please contact Mr. Schumacher at
541-278-3792.

Sincerely,

/Eric Quaempts/
Eric Quaempts, Director
Department of Natural Resources