Federal Update – Sonoma County Supervisor Testifies on Fee-to-Trust Reform
June 27, 2024
Sonoma County Supervisor Testifies on Fee-to-Trust Reform
On June 26, the House Indian and Insular Affairs Subcommittee held a hearing to review legislation (H.R. 1208) that would overturn the U.S. Supreme Court’s Carcieri v. Salazar decision. In Carcieri, the Court ruled that the secretary of the Interior’s trust land acquisition authority is limited to those tribes that were “under federal jurisdiction” at the time of the passage of the Indian Reorganization Act (IRA) of 1934. The decision effectively created two classes of Indian tribes – those that can have land taken into trust for their benefit and those that cannot.
Since the Court’s action in 2009, Indian tribes have urged Congress to pass legislation that would restore the ability of the Interior secretary to take land into trust for all tribes. H.R. 1208, which is identical to a series of bills that were introduced in previous sessions of Congress, would accomplish this objective. For their part, county governments – led by CSAC and the National Association of Counties (NACo) – have long insisted that any legislation addressing the implications of the Carcieri decision must also include comprehensive reforms to the Department of the Interior’s opaque and deficient fee-to-trust process.
Carrying the county message at this week’s hearing was Sonoma County Supervisor David Rabbitt, who testified on behalf of NACo. As part of his testimony, Supervisor Rabbitt described longstanding defects in the trust-land acquisition process and provided the subcommittee with a series of proposed legislative reforms that are designed to ensure transparency and fairness in the trust-land system. The modifications that counties are seeking to the fee-to-trust process, include, among others:
- Ensuring counties have the opportunity to meaningfully participate in the process, including requiring full disclosure and fair notice to counties with respect to all trust-land applications and providing counties with 120 days to respond to and comment on applications.
- Establishing clear and objective standards for the Department of the Interior to follow when making fee-to-trust decisions, including a requirement that tribal benefits and community impacts must be balanced.
- Encouraging intergovernmental mitigation agreements and streamlining the fee-to-trust process for cases in which agreements are in place.
- Requiring a secretarial determination that all significant off-reservation impacts have been sufficiently mitigated when intergovernmental agreements are not reached.
In addition to Supervisor Rabbitt, the following witnesses testified at the hearing: Kathryn Isom-Clause, Deputy Assistant Secretary for Indian Affairs for the U.S. Department of the Interior; Marshall Pierite, Chairman of the Tunica-Biloxi Tribe of Louisiana; and, Stephanie Bryan, Chair of the Poarch Band of Creek Indians.
A copy of the witness testimony and an archived video of the subcommittee hearing can be found here.
FEMA Responds to Congressional Inquiry on Project Roomkey Reimbursements
FEMA recently responded to correspondence from Congressman Robert Garcia (D-CA) – and 35 members of the California congressional delegation – regarding the agency’s decision to retroactively limit the amount of federal reimbursement that counties and cities can receive in connection with implementing the State of California’s Project Roomkey initiative. Launched by Governor Newsom in the early days of the COVID-19 pandemic, Project Roomkey was designed to provide non-congregate shelter (NCS) for people experiencing homelessness. With the understanding that California jurisdictions would receive full reimbursement from the federal government, a number of counties took steps to move large numbers of high-risk homeless individuals into empty motel and hotel rooms. However, FEMA revised its policy in October of 2023. As a result, the agency will only reimburse jurisdictions for emergency NCS stays of up to 20 days for the period between June 11, 2021 and May 11, 2023. According to the California Office of Emergency Services (Cal OES), this decision is expected to cost California’s local governments roughly $300 million.
Pursuant to the FEMA response, the agency aligned its implementation of emergency NCS with federal public health authorities and their official recommendations regarding isolation and quarantine periods. After June 11, 2021, the Centers for Disease Control and Prevention’s (CDC) recommended a quarantine period of 20 days. As such, FEMA believes the decision to be consistent with its current policy and not a retroactive change. However, this was not communicated with counties until October 2023. It should be noted that Senators Alex Padilla (D-CA) and Laphonza Butler (D-CA) have also called on the president to intervene.
House Panel Approves Comprehensive Wildfire Permitting Legislation
On June 26, the House Natural Resources Committee approved a comprehensive legislative package – the Fix Our Forests Act (H.R. 8790) – that seeks to restore forest health, increase resiliency to catastrophic wildfires, and protect communities in the wildland-urban interface. The measure, which has bipartisan support, would accomplish these goals by expediting environmental reviews, limiting frivolous lawsuits, and increasing the pace and scale of forest restoration projects. It also would provide federal land managers, including the U.S. Forest Service (USFS) and Bureau of Land Management (BLM), with additional tools to expedite forestry projects.
Specifically, and among other things, H.R. 8790 would use fireshed mapping to target the top 20 percent of high-risk firesheds, allowing land managers to prioritize landscape treatments in the highest risk areas. In addition, and to increase the pace of treatments, the bill would allow agencies to conduct critical forest management work concurrently with producing an environmental analysis. H.R. 8790 also would enable agencies to adopt categorical exclusions – or specific exemptions from full National Environmental Policy Act (NEPA) review – for certain forest management projects.
In an effort to deter frivolous litigation, the measure would prevent courts from stopping a project unless substantial environmental harm can be proven. Additionally, the bill would require litigants to sue within 120 days and to have participated in the public comment process. Finally, the Fix Our Forests Act would promote intergovernmental collaboration by creating a new Fireshed Center made up of representatives from different agencies. The Center would help to inform suppression and management decisions.