This Draft Environmental Assessment (DEA) reads more like a justification statement than an EA.  Because of the sensitivity, controversy, and past history of performance and potential issues stemming from past Annual Funding Agreements (AFA's), violations of federal law, or precedent setting activities, the Fish and Wildlife Service (FWS) should have conducted a greater in-depth scooping outreach effort prior to the release of the draft.  A public scoping process should have been conducted involving on the ground open public meetings and discussions with local Mission Valley Residents as well as others on the front end to solicit input rather than just a written announcement that an EA is proposed.and simply ask for comments.  A better more accurate DEA would have evolved with an in-depth scooping effort, particularly since there has never been one iota of public involvement to date.  

 Looking at the track record of the Fish and Wildlife Service (FWS) one has to assume that the proposed action selected by the Regional Director will be the draft Annual Funding Agreement (AFA) alternative B.  This all or nothing choice is not acceptable, as the American Public the true owners of all lands in the National Wildlife System (NWRS) should be allotted the option as to how the National Bison Range Complex (NWRC) is managed and by whom. This draft  (DEA) fails to adequately address inconsistencies of compliance with the law, as the Draft Annual Funding Agreement AFA violates several federal statutes, namely the (1). National Wildlife Refuge System Administrative Act (NWRSAA), primarily because it disallows administration and management of a National Wildlife Refuge by another party other than the Secretary of the Interior through the Fish and Wildlife Service (FWS).  (2). P L 94-593 or the Game Range Act of 1976, because it prohibits any transfer of lands in the National Wildlife Refuge System (NWRS) without Congressional authorization, and declared that all lands within the NWRS were to be administered and managed by the Department of the Interior through the FWS,  (3). The Indian Self-Determination and Education Assistance Act (ISDEAA), because the DAFA conferred to the Confederated Salish and Kootenai Tribes (CSKT) functions that are inherently Federal and because the statute establishing the existing program the NWRSAA does not authorize this type of participation given to the CSKT in the annual funding agreement (AFA),  the ISDEAA also states specifically that Tribes may enter into AFA's, and not multi-year or five year agreements, (4).  The Freedom of Information Act (FOIA) because it exempts Tribal records created by the AFA from the American Public, and (5), the Intergovernmental Personnel Act (APA), because the AFA allows the CSKT to terminate Inter personnel agreements (IPA's) ,resulting in a position and funding transfer to the CSKT for the remainder of the AFA, effectively abolishing the chance of the Federal Employee of returning to the National Bison Range Complex (NBRC) as a civil service employee, and (6) the National Wildlife Refuge System Improvement Act of 1997 (NWRSIA), which among other things mandates that a comprehensive conservation plan (CCP) be developed for all refuges within the NWRS including the National Bison Range Complex (NBRC), Such planning mandates strong public out reach and input from stakeholders, neighbors, etc. The CCP provides the basis for management of the refuge programs over the ensuing 15 years, and has not been initiated, which is clearly a violation of law and should be addressed in depth in the DEA.
The draft AFA has been negotiated to cede management and administration of the National Bison Range Complex (NBRC), even though it is in violation of the afore mentioned Acts, and the DEA tries to justify the AFA without adequate analysis of each of these Laws.  Therefore the entire process of approving another AFA, or an EA to justify it should be halted immediately in order to comply with existing law as well as stop wasting the American tax payers dollars in attempts to transfer management mandates to the CSKT.   After   all it is well known throughout the Mission Valley as well as stated in the Tribes own mission statement, " that they will strive to regain ownership and control of all lands within our Reservation boundaries."  [Attachment ) No. 1)].

 Chapter 1

The DEA states that, "an AFA should also help the refuge to:" add or combine resources that would increase our capabilities for better understanding, management, and protection of refuge complex resources; share biological information and resources on projects and issues of mutual interest, both as colleagues and neighboring land owners: develop and deliver quality visitor services programs that interpret and inform visitors about historical, cultural, and biological aspects of the refuge complex" (page 11).  Although this may be true in theory, the on-the-ground experience of this particular relationship proves otherwise.  Official reports and correspondence document a past history of slander, harassment, and intimidation of federal refuge employees; and poor performance and unsafe conditions by personnel of the CSKT working on the NBRC.   see King 2006: (attachment (No. 2)].

The 2005-2006 AFA was cancelled for the above reasons, however the DEA seems to gloss over the reasons for cancellation and makes it sound like the FWS refuge manager was the bad guy for providing a required accurate detailed  evaluation of what actually took place.  The DEA needs to elaborate on the factual reasons the AFA was cancelled.

The DEA mentions at least a nine times that the proposed action will allow the CSKT to manage the refuge programs, services, functions, and activities on the refuge complex for a term of five years, all of which is illegal as stated above.  The DEA fails to fully discuss the environmental consequences of ceding management to the CSKT as well as the turn over of inherently federal refuge personnel and replacing them with inexperienced CSKT hired personnel.  

Mention of turning over of management authority to the CSKT occurs on page 5, 1st and 4th para. page 9, 2nd para., page 11 2nd para., page 26 2nd. para., page 31 last para., page 35 1st para., page 41 chapter 5.3 alt. B 1st and 4th para. 24, and page 52 Tribal Coordination 3rd line, all are illegal statements that cannot be allowed by any AFA or other agreements, therefore only alternative A can even be considered as the proposed action.  

Chapter 2

In order for the Regional Director to make an unbiased non politically coerced  decision would require a greater in-depth analysis and discussion of the impacts then have been spelled out in this DEA.  Just the shift alone of responsibility for managing the NBRC away from the FWS to the CSKT, which is illegal under a number of laws, impacts the broader citizenry of the United States or the true owners of lands that make up the NWRS and can only be achieved through a full Environmental Statement and not an EA.  The DEA briefly discusses the Yukon Flats NWR in Alaska as being the other refuge in the system with an AFA.  There is no way that the AFA's can be compared, as even being significantly equal in scope.

Therefore, the argument that the CSKT AFA is not a precedent setting endeavor is moot and not defensible.

Chapter 3

2nd para. line 1 DEA says that most of refuge complex is within the boundaries of the reservation.  What difference does this make, as there are vast number of  privately owned as well as NWR lands within the boundaries, all acquired in fee title.   What part of the refuge is not in the reservation?  

3rd para.  confusing.. what programs are administrated by the Bureau of Indian Affairs (BIA) and what does this have to do with negotiating for an AFA?  Also the bottom of page 15, it is absolutely necessary to provide greater detail and analysis  about the first 2 AFA's, as to why one was not renewed and the other rescinded.   A major factor in the cancellation of the 1st AFA which is not thoroughly discussed in this DEA was the inappropriate actions and the hostile environment created by the CSKT, as well poor performance and lack of compliance of negotiated tasks.   The 2nd AFA, of course was rescinded for failure of the FWS to comply with the law, namely NEPA.    The remaining counts in the law suits were set aside without prejudice by the Judge, meaning they could be raised again.  The law suits also need to be analyzed in greater detail in the DEA.

3.1  National Bison Range Complex

The DEA goes in to great detail as to how Ninepipe and Pablo were acquired as refuges, it does not however, discuss how and from whom the NBR was acquired.  A broader discussion needs to detail that it was bought in1908 and again in the early 1970's after complaints from the CSKT about not being compensated enough for the land.  The wetlands or WPA's  were acquired with proceeds from duck stamp sales. 

Chapter 3.3  last para page 22.  By stating that it is the intent of Congress that the NWRS be managed as a true system. rather than a collection of disparate units.  The Secretary, and through delegation, the FWS is required to manage each unit to fulfill the purpose for which the unit was established and to fulfill the mission of the refuge system.  It is also clear that Congress intended that all units of the NWRS be managed by the FWS, and not a third party, as was negotiated by the AFA.  This was further substantiated by James Cason, Associate Deputy Secretary of Interior, in his May 13, 2008 testimony before the Senate Committee on Indian Affairs oversight hearing on Tribal Self Governance, where Mr. Cason emphatically stated in his testimony that management authority remains with the FWS as required by the NWRSAA .  As well as reaffirmed by Congressman John Dingell  [attachment  (No. 3) the February 15, 2007 letter from Congressman John Dingell to Senate and House Subcommittee's]. 
Chapter 3.4 1st para also in contradiction with the DAFA, and needs additional discussion.               

 Chapter 3.6  Under the ISGA, Tribes have authority to request and enter into negotiations for AFA's with DOI agencies.  The act is very specific as to an annual agreement and not a multi-year agreements, and must be negotiated annually.  The CSKT and the BIA know exactly what the current ISDA states with regard to AFA's  or else they would not have written and proposed legislation as well as continue their lobbying efforts of Congress to pass an amendment to the Act which states in part in the proposed Senate Bill, S-919 and companion House Bill, HR-4546 to expand the AFA to multi-year agreements, which if passed would allow Tribes to negotiate for a term that exceeds one year.  The DEA needs to discuss this as well.  This proposed legislation mentioned above if enacted would also preclude involvement by the public by removing the statutory requirements for prohibiting delegation of inherently federal programs,functions, services and activities.  In other words the CSKT want unlimited control and possible ownership of NWR lands, or else why this proposed legislation.

 Chapter 3.6  last para It appears that the Tribe only has a cultural significance and attachment for bison when they are physically on the National Bison Range.   I can recall while working in the Denver Regional Office during the early 1980's that we the FWS along with the Park Service donated 30 plus head of bison to the Tribe, as well as provided technical assistance for bison management, herd control, and corral construction, and how to conduct round ups.  I also remember that all of the bison were not retained to start a Tribal bison herd, but were sold off at a local livestock auction.  There were other times bison were donated to the Tribe as well, and the DEA should expand discussion as to what has happened to them.  

 Page 25   The first paragraph.  Sounds like this paragraph is written by a lawyer trying to make the case that inherently federal positions are okay to transfer to the Tribe.  The real fact is that all positions on any NWR are considered inherently federal and cannot be legally transferred to another organization, ie. CSKT.

Non-BIA AFA  middle of the page 25.  comment is made that the Yukon Flats NWR AFA is no longer active because of lack of funds, which may be partially true but the main reason among other things a was lack of compliance on the part of the Athabascan Tribal Governments.

 Page 25 Past AFA's   This section needs to be expanded as to the main reason past AFA's were cancelled and or rescinded.  Again it reads like the fault for cancellation rests with the refuge manager and not with the CSKT.

It must also be pointed out that for the initial two AFA's proposed, the FWS received numerous letters and petitions from concerned citizens in opposition to the activities and provisions as being illegal etc., and all of them were ignored.   Perhaps the most relevant letter received, was from a group of refuge manager's stating among other things that " No Refuge Manager, no matter how skilled, could successfully implement this agreement." [ Letter (No. 4) attached for the record].

 Page 28, 2008 AFA.   Again this AFA was negotiated behind closed doors with zero public involvement.  As evidence of the further political intervention was the fact that Lyle Laverty a candidate for the Assistant Secretary of Fish and Wildlife and Parks vacant position was told by the Montana Delegation ( Sen's. Bacus & Tester)  that their vote for his confirmation was dependent on him getting the AFA started and completed.  This was personally relayed to me by Mr. Laverty.

About that same time, the FWS transferred or relocated personnel at the NBRC and Regional Office that spoke up in opposition to the AFA's,  The positions included but not limited to two refuge managers, maintenance personnel, as well as the Regional Assistant Regional Director for refuges was also relieved of his duties as they pertained to the NBRC, as well as a Regional Director who supported the loyal FWS employees.

 Chapter 4  See my above comments regarding expanded public scooping or lack thereof.

 Chapter 5  The DEA should add the following additional element common to all alternatives (chapter 5.1)  CSKT personnel who are hired to fill refuge positions under an AFA must satisfy the same minimum education, experience, and qualifications, and under go a background investigation, as would be required by the Federal Office of Personnel Management and the FWS for those positions.

 Why does your No Action description of managing refuge habitat (page 39) state that it's based on,         "…place-based experience and professional judgement…,"  instead of on an analysis of data collected through your inventory and monitoring program, and relevant research conducted on-refuge and elsewhere?

Under alternative B, the proposal to have an individual (GS-11, wildlife refuge specialist) be, "…supervised by the manager of FWRC, but receive day-to-day direction from either our (service) refuge manager or deputy refuge manager.."  is impractical and a recipe for failure (page 42).  A supervisor who does not direct an employee's actual work cannot honestly appraise that individual's performance.  Individuals (ie…"the refuge manager or deputy refuge manager who are supposed to provide day-to-day direction to an employee, but don't actually supervise that employee, have limited ability to set the employee's priorities and effect a change in direction, if needed.  At best, this would be a very inefficient method of accomplishing work.  It is also unclear what practical role the manager of FWRC would play in this situation.  See letter (attachment No. 4) from refuge managers mentioned above on this subject.  

 Establishment and operation of a 4-person leadership team to do the work that two individuals  (the refuge manager or deputy refuge manager) perform previously is not only illegal, but another example of unnecessary inefficiency as well as not illegal built into this proposal.  The refuge system operates with an extremely limited budget and cannot afford unnecessary inefficiencies.  

The DEA states that one of the benefits of an AFA is to, "…add or combine resources that would increase our capabilities for better understanding, management, and protection of refuge resources…"(page 11) Chapter 5 should be clearly describe how this benefit would not be achieved under each alternative.  Specifically, using real world examples, how would implementation of an AFA with CSKT improve management of the refuge.  

It appears that the number of personnel working at/for the refuge would change under the different alternatives described in chapter 5.  It is unclear why and how this would occur, and what the cost implications are associated with these different staff numbers.  Regardless of whether they are FWS personnel, CSKT personnel or FWS personnel working for the CSKT on an IPA appointment, where is the money coming from to increase numbers of staff working for/on the refuge.

 Chapter 5 should be revised to include a simple, comparative table that clearly displays for the reader the number of personnel working at/for the refuge under each alternative, how many of those would be service employees and how many would be CSKT employees or FWS employees working for CSKT under IPA's.  In addition, the same table or a separate table should be developed that clearly displays for the reader the amount of operational funding associated with each alternative, including the funding contributed by the service, the funding contributed by the CSKT, the funding transferred from the service to the CSKT, and funding contributed by outside parties.  Totals of personnel and funding, by alternative should be provided in both tables.

 Chapter 7  Environmental consequences-- on page 94 the DE states that the impact analysis is based on several assumptions, however, there is no explanation as to why those assumptions are valid or warranted.  The DEA should explain why the assumptions are sound or valid because with out a lucid explanation as to why the assumptions are sound, the entire impact analysis could be based on poor or incorrect information rendering the entire impact analysis flawed.

In light of past history of poor performance, and unsafe and inappropriate actions by CSKT personnel (see earlier comments), it would appear unreasonable to assume for the purposes of assessing effects in this DEA that the, ".. staffing and administration structure proposed in each (alternative) would be fully successfully implemented.." and "None of the proposed alternatives would result in physical impacts or disturbance to resources…"  (page 94).

See comments on Chapter 5 above regarding funding for personnel working on/for the refuge.  Where is all of the additional funding coming from to implement the alternatives, including the no action alternative (page 100)?  It is unclear how implementation by itself, would result in increased funding for the refuge as stated for alternatives B  C D and E.


  In light of the poor performance, unsafe and inappropriate actions by CSKT personnel (see earlier comments) as well as the illegality of the proposal to cede management and the inherently federal NBRC employees to the CSKT, the FWS should have proceeded more cautiously or not at all in negotiating yet another AFA with the CSKT.  

If the publics comments received for this DEA continue to be ignored by the FWS as have been for previous AFA's, and the draft AFA eventually is signed, the law must also be strictly adhered to with regard to an annual rather than a multi-year agreement , and should not include any inherently federal positions.  The DEA should also have included an in depth analysis of the CSKT's published mission of regaining control of all lands within their reservation boundaries,  as well as for their continued pursuit of politically backed and supported AFA's.  Additionally, in light of the above, the proposed 5-year term for the AFA is unacceptable, as well as illegal.  

The NWRSAA of 1966. as amended mandates that the," NWRS..shall be administered by the Secretary of the Interior through the U S Fish and Wildlife Service…" (16 U. S. C. 668dd(a)(1).  Consistent with TSGA and other legal and policy guidance, inherently or federally government functions on a unit of the refuge system cannot and should not be contracted out to non-service parties.

In light of the comprehensive nature of refuge responsibilities included in AFA's proposed herein as well as the Yukon Flat NWR and the history of poor performance for both efforts, implementation of similar AFA's at numerous other refuges could have significant effects on-the-ground refuge operations and habitats, species, and public uses those operations support.                                       

 The NBRC DEA states for a number of impact topics that potential impacts are unknown.  If that is the case, then following this DEA with a finding of no Significant impact would be illogical, that is, if the FWS does not know the significance of impacts, then it cannot logically conclude with legal finding that all impacts are less significant.  Intuitively it makes sense that environmental impacts (ie…'impacts to air, soil, water,other refuge resources) would be insignificant under an AFA because the refuge management actions which will affect refuge resources will be the same under an AFA or not, the only difference with an AFA will be the composition of staff which will be conducting those refuge management actions.

The National Environmental Policy Act (NEPA) requires that federal agencies develop an environmental impact statement (EIS) for, ".. major actions significantly affecting the quality of human environment…" (42 U. S. C. 4332), regulations for implementing NEPA promulgated by the President's Council on Environmental Quality (CEQ) provide  guidance for interpreting the meaning of the word "significantly" in context of this NEPA phrase (40 C.F. R. 1508.27). Among others, these regulations state that the following factors should be carefully evaluated:The degree to which the effects on quality of the human environment are likely to be high controversial.

 FWS policy complements the CEQ regulations when it states that the following criteria should be considered in determining the need for an EIS (550 FW 3.3):  Controversy over environmental effects( e.g., major scientific or technical disputes or inconsistencies over one or more environmental effects), "and precedent-setting actions with wide-reaching or long-term implications.

In addition the signature page for the Yukon Flats NWR was set up for the Alaska Regional Director's signature, whereas, the NBRC AFA signature page has been elevated to the Washington D. C. level to be signed by the Director's of FWS and BIA and the Assistant Secretary of the Interior.  Thus in itself makes this AFA a significant federal action.

Because the proposed AFA would establish an important precedent for the NWRS and its potential effects are controversial, there is no question that relevant regulations and policies require an EIS to be developed to properly evaluate this proposal.

 Should the FWS instead decide to ignore public comments and proceed that a finding of no significant impact [FONSI] is appropriate for this action proposal, the following is relevant.  CEQ's NEPA regulations (40 C. F. R. 1501.4) state that in certain circumstances, federal agencies should, "..make the finding of no significant impact [FONSI] available for public review…for 30 days before the agency makes its final determination whether to prepare an EIS and before the action may begin…"One of those circumstances is that, "The nature of the proposed action is one without precedent."  

The proposal evaluated in this DEA clearly satisfies this circumstantial requirement and that any FONSI generated for this proposal should be made available for public review for at least 30 days. I therefore, request timely notification of your publication of a FONSI for this proposal.

 See (No. 5)   Attached is my January 22, 2013 letter to Director Dan Ashe, which has never been answered, even though I inquired several times for a reply.  Therefore, I am submitting it for the record along with my comments on the DEA.  The question has to be asked, has the Fish and Wildlife Service lost the word "service" from it's name, particularly at the Regional and Washington levels as no one ever responds to any letters or e-mails received from individuals, and conservation organizations regarding the NBRC and AFA's with the CSKT?  Individuals in this group include six former refuge managers who have over 50 years of combined management experience at the NBRC, and yet their views regarding management and administration of this iconic refuge and the negotiation of AFA's with the CSKT has continued to fall on deaf years.  What a shame as, it is obvious that all the decisions to date appear to be strictly political, rather than based complying with the law, or the best biology and from experienced individuals.  It certainly appears to me that the current leadership in Washington and Denver are more concerned about job security then insuring legal and proper management of the NWRS.

And finally, several years ago while attending the annual bison roundup, I over heard a CSKT Public Affairs Person tell a group of school children that the lands within the Bison Range were stolen from the Tribe by the Federal Government.  Is this the kind of mind set and attitude we want managing the visitor services program as well as other programs at the NBRC?  I think not,