40.240.180 Indian Tribal Treaty Rights and Consultation

A.    New uses located in, or providing recreation river access to, the Columbia River or its fishbearing tributaries shall include the following supplemental information:

1.    The site plan map shall show adjacent river areas at least one-half (1/2) mile upstream and downstream from the project site, the locations at which river access is planned, and the locations of all tribal fishing sites known to the project applicant.

2.    The site plan text shall include an assessment of the potential effects that new uses may have on Indian treaty rights. The assessment shall:

a.    Describe the type of river access and uses proposed, estimated period when the development would be used, and anticipated levels of use (people, boats, and other uses) during peak use periods.

b.    List tribal commercial fishing seasons in the project vicinity, as established by the four (4) treaty tribes.

c.    List tribal ceremonial fishing seasons in the project vicinity.

d.    Based on the above factors, assess the potential effects that the proposed uses may have on Indian treaty rights.

B.    Notices shall include a treaty rights protection plan if new uses may affect Indian treaty rights. The protection plan shall specify measures that will be used to avoid effects to Indian treaty rights. These measures may include reducing the size and modifying the location or design of the proposed uses, seasonal closures, stringent on-site monitoring, information signs, and highly visible buoys or other markers delineating fishing net locations.

C.    Indian tribal governments shall have twenty (20) calendar days from the date a notice is mailed to submit substantive written comments to the responsible official. Indian tribal governments must identify the treaty rights that exist in the project vicinity and explain how they would be affected or modified by the new uses.

D.    Tribal Government Consultation.

1.    When substantive written comments are submitted to a responsible official in a timely manner, the project applicant shall offer to meet with the responsible official and the Indian tribal government that submitted comments within ten (10) calendar days. The ten (10) day consultation period may be extended upon agreement between the project applicant and the Indian tribal government. Consultation meetings should provide an opportunity for the project application and tribal representatives to identify potential conflicts and explore options to eliminate them. The project applicant must demonstrate that the proposed use would not affect or modify treaty or other rights of any Indian tribe.

2.    Any substantive comments, recommendations, or concerns expressed by Indian tribal governments during the consultation meeting shall be recorded and addressed by the project applicant in a treaty rights protection plan. The protection plan shall include measures to avoid effects to treaty and other rights of any Indian tribe.

3.    The responsible official shall submit all protection plans to the Indian tribal governments. Indian tribal governments shall have thirty (30) calendar days from the date a protection plan is mailed to submit written comments to the responsible official.

E.    Conclusion of the Treaty Rights Protection Process.

1.    The responsible official shall decide whether the proposed uses would affect or modify any treaty or other rights of any Indian tribe. The final decision shall integrate findings of fact that address any substantive comments, recommendations, or concerns expressed by Indian tribal governments. If the final decision contradicts the comments, recommendations, or concerns of Indian tribal governments, the responsible official must justify how it reached an opposing conclusion.

2.    The treaty rights protection process may conclude if the responsible official determines that the proposed uses would not affect or modify treaty or other rights of any Indian tribe. Uses that would affect or modify such rights shall be prohibited.

3.    A finding by the responsible official that the proposed uses would not affect or modify treaty or other rights, or a failure of an Indian tribe to comment or consult on the proposed uses as provided in these guidelines, in no way shall be interpreted as a waiver by the Indian tribe of a claim that such uses adversely affect or modify treaty or other tribal rights.

F.    For new development and uses in the SMA, the Forest Service shall determine effects on treaty rights and shall notify the responsible official of the determination.

(Amended: Ord. 2006-05-04)

ARTICLE III. USES AND STRUCTURES ALLOWED IN VARIOUS LAND USE DESIGNATIONS