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North Coast Tribes Pressure MLPA Officials to Address Tribal Use Policy
by Dan Bacher
Wednesday Mar 24th, 2010 2:01 PM
The Schwarzenegger administration has already imposed no-take reserves in the North Central Coast and Central Coast regions without proper consultation with Indian Tribes living in both regions. For example, the California Fish and Game Commission on August 5, 2009 voted for a marine reserve package that will ban the Kashia Pomo Tribe and others from harvesting abalone, mussels and seaweed off Stewarts Point as they have done for centuries.
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North Coast Tribes Pressure MLPA Officials to Address Tribal Use Policy

by Dan Bacher

The issue of tribal rights and uses of ocean resources is now coming to a head in Governor Arnold Schwarzenegger's fast track Marine Life Protection Act (MLPA) process.

The MLPA initiative, after being suspended for lack of funding, was reinitated with private funding by the Resource Legacy Fund Foundation in 2004. MLPA officials until recently refused to address and respect traditional cultural subsistence, ceremonial and other customary uses of marine resources by California Indian Tribes.

The Schwarzenegger administration has already imposed no-take reserves in the North Central Coast and Central Coast regions without proper consultation with Indian Tribes living in both regions. For example, the California Fish and Game Commission on August 5, 2009 voted for a marine reserve package that will ban the Kashia Pomo Tribe and others from harvesting abalone, mussels and seaweed off Stewarts Point as they have done for centuries.

Fortunately, 25 tribes on the North Coast have united to address the Schwarzenegger administration's failure to respect tribal uses under the MLPA Initiative. On March 18, the InterTribal Sinkyone Wilderness Council presented the Blue Ribbon Task Force (BRTF) for the North Coast Region with a strongly-worded statement on tribal use policy.

According to the Council, the need for the development of a tribal use policy by the MLPA Initiative "arises from the regrettable fact that the Marine Life Protection Act neglected to explicitly address Tribal rights and interests. We are confident, however, that a policy can be devised that avoids interference with long-established Tribal traditional cultural subsistence uses, and at the same time stays within the legal parameters of the Act and other provisions of State and federal law."

"Tribal uses cannot be ignored in these early stages of MPA development; otherwise, subsequent revisions to the MPAs will be much more difficult and problematic," the tribes emphasized. "If such revisions cannot be or are not made, the Initiative will have failed in its goal to respond favorably to the concerns of sovereign Indian Tribes."

The statement warned the officials to "not proceed further" in the process until tribal uses of ocean resources were first addressed.

The BRTF responded to the tribal memo by saying, "In developing MPA proposals, the NCRSG (North Coast Regional Stakeholders Group) should strive to accommodate noncommercial, traditional subsistence, religious, cultural and other customary tribal gathering uses, by identifying such gathering uses as permitted in MPAs, understanding that some traditional gathering uses may render an MPA as requiring a specific classification as a state marine conservation area or state marine park and potentially with a level of protection that is different from a state marine reserve."

The task force also recommended that:

• "NCRSG members should work with one another and members of California tribes and tribal communities to understand traditional tribal gathering areas, including high-priority areas, and use this information in developing MPA proposals."

• "NCRSG members should recommend potential co-management opportunities or approaches that can be recommended to the State of California."

• "NCRSG members should recommend mechanisms for characterizing traditional gathering uses in a respectful manner, so that MLPA Initiative staff and the BRTF can understand how best to classify any MPA that may be coexistent with traditional tribal gathering areas."

However, MLPA Initiative Executive Director Ken Wiseman, in a letter to BRTF Chair Cindy Gustafson on March 17, claimed that Fish and Game Commission and DFG lawyers advised the Commission staff to not grant "exemption to any party," including tribes, from the MLPA.

"In our continuing discussions with the California Fish and Game Commission and California Department of Fish and Game (DFG) legal staff, all advise that (1) the commission needs to continue its legal obligation of not granting exemption to any party from the MLPA, (2) the commission does not have the legal authority to grant an exclusive use for tribes or tribal communities without legislation, and (3) both the
commission and DFG should continue discussions with the tribes and tribal communities," the letter stated.

Wiseman said he has requested that "formal legal written advice" from DFG be delivered to the BRTF "as soon as possible."

It will be interesting to see how the MLPA officials deal with this long-neglected issue of tribal uses of ocean resources in upcoming meetings of the MLPA task force and stakeholders group. Hopefully, the Schwarzenegger administration will be forced not just to address tribal issues on the North Coast from Point Arena to the California-Oregon border, but to reopen the Central Coast, South Coast and Central Coast processes, since the designated marine reserves were developed without proper consultation of California Indian Tribes.

The ignoring of tribal rights under the MLPA Initiative points to a larger problem: the refusal of the state of California to engage with the tribes as sovereign nations in government to government relations on water and other environmental issues. The refusal of the Schwarzenegger administration to respect tribal rights and interests was evidenced when the administration in 2005 appointed a stakeholders group for the Delta Vision process that completely excluded tribes, as well as recreational anglers. It was only after fishing, tribal and environmental groups protested about this injustice that one tribal member, Gary Mucahy of the Winnemen Wintu Tribe, was appointed to the stakeholders group.

The MLPA Central Coast process completely left tribal representatives off the stakeholders group, while the North Central process proceeded forward with minimal tribal representation. It was only in the North Coast process stakeholders group, under strong pressure from North Coast tribes, that the Schwarzenegger adminstration allowed the tribes to have a substantial presence.

There are eight tribal representatives on the North Coast MLPA stakeholders group, including Russ Crabtree, Tribal Administrator, Smith River Rancheria; Jacque Hostler, Chief Executive Officer and Transportation & Land-Use Director, Trinidad Rancheria; Megan Rocha, Assistant Self Governance Officer, Yurok Tribe; Atta Stevenson, Acting President, Inter-Tribal Council of California and member, Laytonville Rancheria; Reweti Wiki, Tribal Administrator, Elk Valley Rancheria, Benjamin Henthorne, Environmental Coordinator, Hopland Band of Pomo Indians, and Valerie Stanley, member, Noyo Indian Community.

The Marine Life Protection Act passed through the Legislature and was signed into law by Governor Gray Davis in 1999. The MLPA under Schwarzenegger has become a grotesque parody of what the law originally intended to do - protect California ocean waters and marine life. Instead, the process has become infested with conflicts of interests, mission creep, and corruption of the democratic process, as well as ignoring tribal rights and interests.

For more information about the MLPA and upcoming meetings, go to: http://www.dfg.ca.gov/mlpa.

Below is the statement from the InterTribal Sinkyone Wilderness Council, followed by a memo by the Blue Ribbon Task Force and a letter by Ken Wiseman, MLPA executive director.


A. Statement from InterTribal Sinkyone Wilderness Council

InterTribal Sinkyone Wilderness Council
P.O. Box 1523 Ukiah, CA 95482 Phone (707) 468-9500
InterTribal Cultural Conservation for Sinkyone Indian Lands

California Marine Life Protection Act Initiative
Blue Ribbon Task Force
Meeting of March 18, 2010

STATEMENT OF INTERTRIBAL SINKYONE WILDERNESS COUNCIL
ON TRIBAL USE POLICY

The InterTribal Sinkyone Wilderness Council takes this opportunity to comment
on the Initiative’s development of a Tribal Use Policy. We understand the Blue Ribbon
Task Force (BRTF) intends to adopt such a policy in order to guide the Regional
Stakeholder Group’s evaluation of external and internal arrays. The need for such
guidance arises from the regrettable fact that the Marine Life Protection Act neglected to
explicitly address Tribal rights and interests. We are confident, however, that a policy
can be devised that avoids interference with long-established Tribal traditional cultural
subsistence uses, and at the same time stays within the legal parameters of the Act and
other provisions of State and federal law.

We agree with the sum and substance of the prior BRTF discussion that a “policy
of affirmation” of the rights of Indian Tribes to continue their traditional uses is most
appropriate. We have revised our earlier draft policy recommendation to take into
account the emerging consensus on the BRTF that Tribal uses should be protected by
avoiding those areas along the North Coast
where such uses have traditionally been carried out. In our view, the policy directive to
the Regional Stakeholder Group should include the following:

• Arrays developed by the Regional Stakeholder Group (RSG) should accommodate
traditional cultural subsistence, ceremonial and other customary uses of marine
resources carried out by the North Coast Tribes and Tribal communities of
Mendocino, Lake, Humboldt, and Del Norte Counties pursuant to aboriginal right
or long-established continuous practice by either:
a) Delineating Marine Protected Area (MPA) boundaries that do not overlap
with such cultural use areas; or
b) Identifying such uses as permanently permitted uses within the MPAs.
• The Regional Stakeholder Group should consult with North Coast Tribes to
understand the nature and scope of Tribal uses and should further develop proposed
MPAs in ways that do not interfere with such uses.

• The Regional Stakeholder Group should identify and recommend to the Blue
Ribbon Task Force potential co-management approaches for effective stewardship
of critical marine resource areas, consistent with State and federal law.

• The Regional Stakeholder Group’s recommendations to the Blue Ribbon Task
Force regarding any Tribal issues need to be provided to the Tribes for their review
and input prior to the Stakeholder Group submitting such recommendations to the
Blue Ribbon Task Force.

We understand the Initiative staff has sought legal advice and guidance from counsel
for the Department of Fish and Game and/or the Office of the Attorney General. Our
concern is that the array evaluation process now underway may advance too quickly for the
legal guidance to have its maximum utility. To address this concern, we would like to
suggest that until the guidance is forthcoming, the BRTF direct the RSG to draw the
boundaries of MPAs to avoid those areas identified by the Tribes as traditional cultural
subsistence use areas. The Tribes have repeatedly made the point that avoiding interference
with their traditional cultural uses is consistent with the MLPA’s goal of protecting,
stewarding and conserving marine resources. This pivotal point is supported by the
documented facts that, since the beginning of time, the Tribes have been responsible
stewards of their aboriginal lands and waters, and that continued Tribal uses have minimal
adverse impacts to marine resources. No further legal authority for a policy of avoidance is
needed.

If this conclusion turns out to be wrong, and insurmountable legal obstacles to
accommodating Tribal uses in this way are identified, at that time the Initiative can undertake
further consultations with Tribes to develop other measures designed to maintain consistency
with State and federal law. Tribal uses cannot be ignored in these early stages of MPA
development; otherwise, subsequent revisions to the MPAs will be much more difficult and
problematic. If such revisions cannot be or are not made, the Initiative will have failed
in its goal to respond favorably to the concerns of sovereign Indian Tribes. Having
heard from more than 25 North Coast Tribes of the paramount concern of continuing
traditional uses, the Initiative should not proceed further with MPA development without
first addressing such uses.

In addition to this concern with timing, the InterTribal Sinkyone Wilderness Council
is also concerned about several proposals for the process by which the Tribal Use Policy may
be adopted. We do not support the creation of a tribal advisory group to recommend a policy
because this would defeat the goal of conducting genuine consultation with individual North
Coast Tribes.

Finally, we understand the BRTF has considered hiring outside counsel to give advice
and recommendations for a Tribal Use Policy. Although such advice would be welcome, we
do not believe it is necessary at this time. Counsel for the InterTribal Sinkyone Wilderness
Council can assist the attorneys for the Department of Fish and Game and in the Office of the
Attorney General in working through all the legal questions that have arisen. Together, we
believe counsel for the Tribes and the Initiative can develop creative solutions to reaching the
goal of the BRTF of avoiding interference with the traditional cultural subsistence uses of
North Coast Tribes.

Thank you for your consideration of our views.


B: Guidance Motions Related to Tribes and Tribal Communities Adopted at the
March 18, 2010 MLPA Blue Ribbon Task Force Meeting

March 22, 2010

At its March 18, 2010 meeting, the California Marine Life Protection Act (MLPA) Blue Ribbon
Task Force (BRTF) continued its discussion regarding potential tribal legal questions, tribal
uses of marine resources, and how the MLPA North Coast Regional Stakeholder Group
(NCRSG) should take into account those uses in developing draft marine protected area
(MPA) proposals. At this meeting the BRTF received a memo from MLPA staff (Attachment A)
with suggestions regarding potential legal questions submitted by task force members and how
the NCRSG should consider tribal uses of marine resources in developing draft MPA
proposals. The BRTF also received and discussed a statement from the InterTribal Sinkyone
Wilderness Council regarding a tribal use policy (Attachment B).

The BRTF took two actions on these subjects:

1. The BRTF received a memo from the InterTribal Sinkyone Wilderness Council and
some BRTF members had not had sufficient time to review and consider the points
made. After a robust discussion about four bulleted points highlighted in the memo and
potential use of the language for providing guidance to the NCRSG, the BRTF
requested that staff make available to the public and California tribes and tribal
communities the InterTribal Sinkyone Wilderness Council memo, requesting input on
the four bulleted points. The BRTF may provide additional guidance to the NCRSG
based on any input received on the four bullet points.

2. The BRTF provided guidance to the NCRSG as follows:
a. In developing MPA proposals, the NCRSG should strive to accommodate noncommercial,
traditional subsistence, religious, cultural and other customary tribal
gathering uses, by identifying such gathering uses as permitted in MPAs,
understanding that some traditional gathering uses may render an MPA as
requiring a specific classification as a state marine conservation area or state
marine park and potentially with a level of protection that is different from a state
marine reserve. This guidance is consistent with previous BRTF guidance as
confirmed on March 1, 2010 (see attached January 13, 2010 MLPA staff memo
with an updated summary of key guidance provided in previous MLPA study
regions) and is supplemental to, but does not in any way replace, prior guidance.

b. NCRSG members should work with one another and members of California
tribes and tribal communities to understand traditional tribal gathering areas,
including high-priority areas, and use this information in developing MPA
proposals. It is important that California tribes and tribal communities
communicate and share information within the MPA planning process to help
ensure that traditional tribal gathering areas are affected to the least extent
possible by proposed MPAs.

c. NCRSG members should recommend potential co-management opportunities or
approaches that can be recommended to the State of California.

d. NCRSG members should recommend mechanisms for characterizing traditional
gathering uses in a respectful manner, so that MLPA Initiative staff and the BRTF
can understand how best to classify any MPA that may be coexistent with
traditional tribal gathering areas.


C: Letter from Ken Wiseman

California Marine Life Protection Act Initiative
1416 Ninth Street, Suite 1311 Sacramento, CA 95814 916.654.1885
March 17, 2010

Dear Chair Gustafson,

Per your request, MLPA Initiative senior staff has reviewed the legal questions provided
to you by MLPA Blue Ribbon Task Force (BRTF) members Meg Caldwell and Roberta
Cordero. We believe some of these questions may be answered when we complete our
expanded tribal regional profile appendix next month, but most are best combined and
answered in a longer term process that will go well beyond our October completion date
for the MLPA North Coast Study Region.

In our continuing discussions with the California Fish and Game Commission and
California Department of Fish and Game (DFG) legal staff, all advise that (1) the
commission needs to continue its legal obligation of not granting exemption to any party
from the MLPA, (2) the commission does not have the legal authority to grant an
exclusive use for tribes or tribal communities without legislation, and (3) both the
commission and DFG should continue discussions with the tribes and tribal
communities. We have requested formal legal written advice from DFG be delivered to
the BRTF as soon as possible. Once this guidance and legal framework are formally in
place, further discussion on these matters seems outside the charge of the BRTF.
Policy guidance based on legal consultation to date is that state marine reserves should
be outside of tribal gathering areas. When this is not possible, these areas should be
characterized and protected in a state marine conservation area or a state marine park
that does not attempt to provide exclusive use. The language that the BRTF drafted and
is being considered at this Thursday’s teleconference meeting is consistent with that
policy guidance and encourages stakeholders to put forward other options within that
guidance that offer potential approaches and mechanisms for respectfully characterizing
how traditional gathering uses and locations can co-exist within an MPA. Such options
may be able to be put forward as part of the BRTF’s final October recommendations or
they may need to become part of a longer term process that is scheduled to begin with
an April 9 meeting in Sacramento; that meeting will bring together DFG, California State
Parks, and California coastal tribes and tribal communities from throughout the state to
establish a framework and timeline for addressing these major legal and legislative
issues over the longer term.

Sincerely,
Ken Wiseman
on behalf of senior staff