2008 Colville Fish Habitat MOA

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MEMORANDUM OF AGREEMENT
BETWEEN THE CONFEDERATED TRIBES OF THE
COLVILLE RESERVATION AND THE
BONNEVILLE POWER ADMINISTRATION FOR
ACQUISITION AND MANAGEMENT OF HABITAT FOR
PROTECTION, MITIGATION AND ENHANCEMENT OF
RESIDENT AND ANADROMOUS FISH
This Memorandum of Agreement (Agreement) is made by and between the CONFEDERATED
TRIBES OF THE COLVILLE RESERVATION (Colville Tribe, the Tribe, or Tribal) and
THE UNITED STATES OF AMERICA, acting through the Department ofEnergy, Bonneville
Power Administration (BPA). The Tribe and BPA are separately and jointly referred to as
"Party" and "Parties," respectively.
RECITALS
A. The Colville Tribe is a federally recognized Indian tribe that occupies and governs the
Colville Reservation, which is bounded by the upper Columbia and Okanogan rivers in North
Central Washington State. The Tribe is a confederation of aboriginal hunting and fishing tribes,
and possesses federal reserved hunting, fishing, gathering, and water rights within the
Reservation and former North Halfofthe Reservation. The Tribe also has an interest in fish and
wildlife management in other traditional territories near the Reservation and North Half. The
Tribe actively regulates and manages fish and wildlife resources within the Reservation and
North Half. Fish and wildlife habitat and populations the Tribe relied upon historically have
been profoundly affected by the construction and operation of, and inundation resulting from,
federal hydroelectric projects on the Columbia River and its tributaries.
B. BPA is a power-marketing agency within the United States Department ofEnergy. The
Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. §§ 839-839h
(Northwest Power Act) directs BPA to protect, mitigate, and enhance fish and wildlife affected
by the development and operation of federal hydroelectric projects on the Columbia River and its
tributaries in a manner consistent with the purposes of the Act, the fish and wildlife program
(Program) adopted by the Pacific Northwest Electric Power Planning and Conservation Council
(Council) under subsection 4(h) ofthe Act, and other laws, including but not limited to the
Endangered Species Act. One way that BPA meets its responsibilities for fish protection,
mitigation, and enhancement is to protect important habitats that sustain fish species by funding
the acquisition of the property by the Tribe and securing the protection and management ofthe
property for the benefit of fish.
C. The purpose ofthis Agreement generally is to provide the mechanisms for BPA to fund, and
the Tribe to implement, the protection and mitigation ofresident and/or anadromous fish through
Colville Tribes and BPA Fish Habitat MOA
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the acquisition and management of appropriate habitat to partially mitigate for the impacts ofthe
construction, inundation and operation ofthe federal hydroelectric system, including but not
limited to the Grand Coulee and ChiefJoseph projects. This MOA sets forth the commitments
and roles and responsibilities of each Party in regards to the acquisition and future management
of such property for fish.
AGREEMENT
I. BPA FUNDING
A. Acquisition Funding. In consideration ofthe promises and covenants made and set out
herein, BPA will provide funding for the acquisition ofreal property interests (fee title or
conservation easements, hereinafter referred to as "property") that provide fish habitat that
supports meeting the purpose ofthis Agreement (see Recital C). For each property to be
acquired, BPA will fund up to the purchase price and associated normal and reasonable closing
costs (i.e., closing and recording fees, and title premiums), except that BPA will not provide any
funding for a purchase price that exceeds the fair market value as determined by a BPA appraisal
(or an appraisal that BPA reviews and accepts), nor will BPA provide any portion ofthe funding
to acquire a property ifthe total purchase price sought by the Tribe exceeds that fair market value
as determined via federal appraisal standards. The overall amount available for property
acquisitions in any fiscal year will depend on Council and BPA priorities, as determined in the
applicable planning, project selection, and implementation process utilized by BPA and the
Council, and subject to the availability of funds as determined by BPA.
B. Pre-Acquisition Activities.
I. Prior to providing funding for acquisition, BPA's duties may include, but are not
limited to, conducting environmental analyses (e.g., analysis under the National Environmental
Policy Act (NEPA», conducting hazardous materials surveys (Environmental Land Audits),
conducting or reviewing appraisals, reviewing purchase and sale agreements, and reviewing the
easement to be granted by the Tribe (for fee title acquisitions) or to be acquired by the Tribe.
BPA is also responsible for ensuring that the relocation provisions ofthe Uniform Relocation
Assistance and Real Property Acquisition Policies Act (42 USC § 4601 et seq.) are complied
with, and so prior to any negotiations for acquisition of a property, the Tribe sl;Iall consult with
BPA's Real Property Services to discuss appropriate steps. In particular, immediately upon
learning of any tenants or other occupants or users ofa property the Tribe may seek to acquire,
the Tribe shall contact BPA's Real Property Services. The costs ofBPA's pre-acquisition
compliance activities will be borne by BPA, with the exception ofthe costs ofBPA's real
property services and relocation assistance (if any), which will be subtracted from the relevant
project budget. Requests for project funding should be coordinated with BPA to include these
costs.
2. Any ofthese pre-acquisition due diligence activities may cause BPA to decline to fund
a particular property, and BPA will give the Tribe as much prior notice of such declination, and
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the reason for it, as possible. For any additional pre-acquisitions tasks that the Tribe seeks to
perform and that the Parties agree on, BPA will negotiate an intergovernmental agreement
(contract). BPA will consult with the Tribe as needed about each party's respective pre-
acquisition duties to facilitate cost-effective and timely acquisition ofproperties.
C. Acquisition Procedures. To close the purchase of a property, BPA's duties shall include, but
not be limited to, transferring funds to agreed-upon escrow accounts in amounts and at times
mutually agreed upon by the Parties. Upon closing, title to the property will transfer from the
landowner to the Tribe, and BPA will accept either a grant ofa conservation easement on the
property from the Tribe, or the right ofthird-party enforcement should the real property interest
being acquired be a conservation easement.
D. Property Management Funding (Enhancement & O&M)
I. BPA may, but is not required to, provide a reasonable amount of additional funds for
property management to help the Tribe ensure the acquired property's existing habitat
characteristics and mitigation qualities are to the greatest extent possible self-sustaining.
Property management funding could include funding for habitat evaluations, management plan
development, and specific habitat improvement efforts, as well as operation and maintenance
funding such as routine maintenance of habitat-related structures and other habitat-related
improvements on the property, as well as routine fish habitat management activities. The Parties
expect that the initial investment in property management funding will likely decrease over time,
as rehabilitation efforts (ifany) shift to maintenance efforts, and then to minimal involvement in
managing self-sustaining habitat.
2. All property management funding provided by BPA will be subject to Council and
BPA priorities and subject to funds available. With a positive recommendation from the
Council, concurrence from BPA, and with adequate funds available, BPA may fund property
management from funding cycle to funding cycle, or for a set period oftime. The Parties will
execute a separate contract for any property management funding.
II. TRIBE'S ACQUISITION & MANAGEMENT
A. Project Planning and Identification of Appropriate Property.
I. The Tribe should coordinate requests for project funding with BPA in advance, in
order that anticipated costs ofacquisition, including pre-acquisitions costs, are included in
planning budgets.
2. In addition to consultation with BPA's Real Property Services described in section
I.B.I, prior to negotiating a purchase and sale agreement with a landowner regarding the potential
acquisition of a property, the Tribe will contact the BPA Project Manager to discuss the
characteristics ofthe property and its suitability as habitat for fish. BPA will not be obligated to
fund the acquisition part or all of any property if BPA's approval is sought after a purchase and
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sale agreement has been executed between the landowner and the Tribe.
3. For individual Indian lands (allotments) proposed for acquisition, the Tribe must
acquire 100 percent of the allotment shares.
B. Title & Ownership, Conservation Easement, Right of Third Party Enforcement.
I. The Tribe will take title to any property acquired in fee, or if allotted lands, in trust,
and will have all management and operational control ofthe property acquired, and will be
responsible for all incidents ofownership. The Tribe agrees to take all lawful actions to hold
hannless and indemnifY BPA from any costs or liability from any incident of ownership that may
arise from the acquisition ofthe property and in the management ofthe property. Such incidents
of ownership include, but are not limited to, hazardous waste response, cultural or historic
resource mitigation or preservation, and tort liability.
2. To ensure that property acquired in fee title (or in the case of allotments, in trust) is
properly protected for fish, the Tribe shall grant and deliver to BPA a signed deed of
conservation easement, for a term of 99 years, substantially in the form found in Attachment A
immediately upon obtaining title to the subject property. The Tribe shall obtain the approval of
Bureau ofindian Affairs ofthe U.S. Department of the Interior pursuant to 25 U.S.c. § 81, if
applicable, of the grant ofthe conservation easement to BPA. If such approval is required and is
not granted, the Tribe and BPA shall modifY the conservation easement as needed to obtain
approval. The Tribe shall record the conservation easement as soon as possible and provide a
copy ofthe recorded conservation easement by mail to BPA's Real Property Services.
3. Ifthe property being acquired is a conservation easement rather than fee title, the Tribe
shall ensure that BPA has sufficient time (typically 25 to 40 business days, depending on
workload) to review and approve any proposed conservation easement to be acquired. The Tribe
shall ensure that BPA has a third-party right of enforcement and rights ofentry and inspection as
a term in the easement, substantially in the form as follows:
Third Party Right of Enforcement. The United States, acting by and through the
Bonneville Power Administration (BPA) is hereby granted a third party right of
enforcement. As such, BPA may exercise the rights and remedies ofthe Grantee, and is
entitled to all ofthe indemnification provided to the Grantee. If Grantee exercises the
rights and remedies ofthe easement, then Grantee shall be entitled to reimbursement from
Grantor of its cost of enforcement. If BPA exercises the rights and remedies ofthe
easement, then BPA shall be entitled to reimbursement from Grantor of its costs of
enforcement. If Grantee and BPA jointly exercise the rights and remedies ofthe
easement, then the Grantee and BPA will work cooperatively to apportion the costs of
enforcement in accordance with the efforts of each.
Right of Entry and Inspection. The United States, acting by and through BPA, is
hereby granted the right, in reasonable manner and at reasonable times, to enter and
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inspect [name ofthe property] to determine compliance with this Conservation Easement.
Except in case of emergency, BPA shall attempt to give Grantor and Grantee prior
notice, which notice may be by telephone.
C. Crediting. The Tribe agrees that BPA's funding of property acquisitions pursuant to this
Agreement is consistent with 16 U.S.C. §§ 839b, 839g(e) and the Council's program. The Tribe
shall support BPA's obtaining full mitigation credit against its legal obligations under the
Northwest Power Act for its expenditures with respect to protecting and managing existing
habitat on the acquired property and for habitat improvements when attributable to BPA funding.
Credit could include, for example, acknowledgment ofthe property's values in support of
measures to address the needs of endangered or threatened species (whether pursuant to a
Biological Opinion or recovery plan). Credit could also include "fish credits" (similar to "habitat
unit" credits for wildlife) against a defined obligation, should such a crediting system be
developed in the future and adopted by the Council and BPA. The Tribe shall support BPA's
obtaining credit so long as a court has not found BPA in breach ofthis Agreement and BPA has
not cured that breach if one is found. If BPA conducts a wildlife habitat survey per Section II.G
on a property, the Tribe agrees that BPA may credit the habitat units identified on a one-to-one
basis against wildlife losses associated with Grand Coulee or ChiefJoseph Dams.
D. Assurances; Prohibited Uses.
I. The Tribe shall comply with all applicable laws in the implementation ofthis
Agreement, the Management Plan (Section II.H) and any associated contracts.
2. The Tribe shall ensure that property acquired, improved, or managed with BPA funds
is protected and managed for fish (and any wildlife present) on behalf ofBPA and the United
States, preventing any and all uses ofthe property that are inconsistent with this Agreement, the
Council's Program, the Northwest Power Act, the Management Plan required by Section II.H of
this Agreement, and other applicable laws.
3. The Parties intend that any activity that violates the purposes ofthis Agreement, or
unduly limits additional habitat values accruing to BPA from natural regrowth and regeneration
of the habitat, is prohibited, and therefore the list identified below is not exhaustive. Prohibited
uses include:
(i) All residential, commercial, or industrial uses ofthe properties, except as
permitted in the Management Plan;
(ii) Erecting ofany building, billboard, or sign except as approved in the Management
Plan;
(iii) Depositing ofsoil, trash, ashes, garbage, waste, bio-solids or any other material,
except as allowed under applicable federal, state, and local laws at locations
approved in the Management Plan;
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(iv) Excavating, dredging, or removing of loam, gravel, soil, rock, minerals, sand,
hydrocarbons or other materials, except as permitted in the Management Plan;
(v) Otherwise altering the general topography ofthe Property, including but not
limited to building ofroads and flood control work, except for work related to
restoration or enhancement projects identified in the Management Plan;
(vi) Granting any easement, lien, or other property interest for any purpose over the
Property (including water rights) acquired or managed pursuant to this Agreement
without the prior written consent ofBPA;
(vii) Any other use that, overall, the Tribe or BPA determines has a material negative
impact on fish or wildlife habitat.
E. Water Rights. Prior to acquisition, the Tribe will identity and confirm that water necessary
to support the property as fish habitat is available and will be secured as part ofthe purchase of
the property. After acquisition the Tribe will transfer any surface water rights acquired with a
property to instream use in accordance with applicable law (depending on whether the
acquisition is within or outside the Reservation), unless otherwise agreed by the Parties in the
Management Plan.
F. Fish Habitat Inventory. Because this Agreement concerns the acquisition and management
ofhabitat for fish, the Tribe shall conduct a fish habitat inventory after acquisition and
incorporate the inventory results into the Management Plan for the property.
G. Wildlife Habitat Inventory. Because this Agreement concerns the acquisitions and
management of fish habitat, a wildlife habitat survey is not required by BPA. BPA may in the
future and at its expense, conduct a baseline wildlife habitat inventory using the Habitat
Evaluation Procedures (HEP) methodology, as developed by the U. S. Fish and Wildlife Service
(or other regionally-acceptable evaluation tool agreed to by BPA) to determine the wildlife
habitat units on the property.
H. Property Management Plan.
I. Based on the information obtained from the fish habitat inventory, and the Colville
Indian Reservation Record of Decision and Plan for Integrated Resources Management 2000-
2014 (July 2001), the Tribe shall develop and submit to BPA a succinct draft management plan
for each acquired property within 12 months from the closing date for acquisition ofthe property.
The Management Plan will provide for management of the property to achieve and maintain
native or native-like habitat that is, to the greatest extent feasible, naturally self-sustaining and
that supports indigenous fish species ofthe area, particularly ESA-listed species. The Tribe may
rely extensively on its Plan for Integrated Resources Management (July 2001) to help provide a
broad overview ofhow the property fits into the Tribe's overall resource management scheme.
At a minimum, the Management Plan should include (I) a description of the property including
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historical and present site conditions and baseline information for habitat and species; (2)
occurrence ofthreatened and endangered species; (3) occurrences of cultural and historic
resources; (4) a statement of desired future conditions and/or goals; and (5) activities to achieve
these goals. In consultation with BPA, the Tribe shall also request participation from other
resource managers as appropriate, the public, and private landowners in the immediate area ofthe
property in developing the Management Plan. The Management Plan should identify activities
the Tribe believes are necessary to restore, rehabilitate, or enhance the property, and the activities
the Tribe believes are necessary to operate and maintain the fish habitat values ofthe property.
Future requests for property management funding from BPA should be consistent with the
Management Plan.
2. BPA will review each draft Management Plan to ensure it conforms with the terms of
this Agreement, any pertinent contracts or other agreement between the Tribe and BPA, the
conservation easement, BPA's pertinent NEPA documents, and BPA's legal obligations. BPA
shall complete its review and return it to the Tribe within 60 business days after submission of
the draft Management Plan. The Tribe shall amend the draft accordingly, and resubmit to BPA.
For amended or redrafted submissions, BPA review should typically be within 30 business days.
BPA shall not withhold its approval unreasonably. BPA will consult with the Tribe regarding
any concerns BPA has about the acceptability ofthe plan prior to making its conformance
decision.
3. In the event of a conflict between this Agreement and a Management Plan, the
Agreement will control.
4. Prior to approval ofa Management Plan by BPA, the Tribe shall not undertake any
ground-disturbing activities or any activities that may affect fish, regardless of funding source,
unless reviewed by BPA for consistency with the conservation easement and this Agreement in
advance. Any activities to be funded by BPA during the interim period pending the development
of a Management Plan may require environmental compliance and other analyses to be
completed prior to the Tribe proceeding.
1. Cultural Resources. The Tribe will integrate management planning for historic and cultural
resources, as defined by the National Historic Preservation Act, 16 U.S.C. § 470 et seq. as
amended, with the habitat management practices described in Management Plan as a means of
avoiding impacts to cultural and historic resources. Ifnot previously completed or exempted,
historic and cultural resource surveys may be required before initiating any BPA-funded ground-
disturbing activities, and the Tribe will coordinate with BPA cultural resources program staff.
The Tribe will also avoid sensitive sites, if at all possible, in implementing habitat actions.
Funding for historic and cultural resource compliance activities (including preservation) will be
the sole responsibility ofthe Tribe unless the activity directly triggering the potential impact to
the resources is itself funded by BPA.
J. Endangered Species Act. When activities funded by BPA have the potential to affect species
listed under the federal Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1599, the Tribe will,
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at BPA's request, (I) participate in applicable consultations and conferences conducted under
Section 7 ofthe ESA and (2), where appropriate, obtain permits under Section 10 ofthe ESA.
Upon request, the Tribe shall provide BPA with available information, materials, documents, and
records, for such consultations, conferences, or acquisitions ofpermits necessary for the
operation ofthe subject property. Moreover, when property activities funded by BPA may affect
federally ESA-listed species, the Tribe shall not proceed with those actions/activities until the
completion of requisite consultations, conferences or acquisition of necessary permits. (Activities
funded by others may have similar requirements). To the extent required by applicable law, the
Tribe shall comply with terms and conditions ofpertinent incidental take statements and with
conditions of Section IO permits. Funding for endangered species compliance activities will be
the sole responsibility ofthe Tribe unless the activity triggering the potential impact to the
resources is itself funded by BPA. Specific ESA compliance activities will be identified and
funded by BPA in amounts agreed upon by the parties pursuant to subsequent agreements
(intergovernmental contracts).
K. Revenues.
I. The Tribe may use revenue received from management or use ofproperty acquired
pursuant to this MOA only to pay costs incidental to ownership (e.g., weed control) and/or to
implement the Management Plan for that property, unless otherwise agreed per paragraph (2) of
this section. All revenue received from management or use ofthe property shall be separately
identified and accurately accounted for in the Tribe's accounting system, so that revenue can be
reported as part ofthe Tribe's annual revenue/expense report, described in Section III.G.!.
Revenue received from management or use ofproperty acquired includes income from contracts,
leases, including contract or lease payments from conservation reserve programs, and other
payments derived from the Tribe's management ofthe property; revenue also includes interest, as
well as grants, donations, or other forms offinancial assistance that the Tribe may receive from
any and all agencies, organizations or persons (public or private) other than BPA.
2. The Parties agree that ifmanagement ofthe property consistent with the terms ofthis
Agreement, the property's conservation easement, and the Management Plan is providing more
revenue than is necessary to meet the naturally self-sustaining goal ofthe property, then the Tribe
may use this excess revenue for other fish mitigation elsewhere on the Colville Reservation,
provided:
(i) the Tribe continues to report and track the revenue as provided in this Agreement
(section III.G below);
(ii) the Tribe provides BPA with advance notice (at least 3 months) ofplanned use of
excess revenue;
(iii) the excess revenues are used first on other BPA-funded properties held by the Tribe;
and
(iv) the Tribe provides BPA access to the affected sites and allows or performs the
necessary HEPs or similar habitat evaluations to document the results ofthese efforts and
then support BPA mitigation credit for them pursuant to this Agreement.
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3. With prior notice, and at the sole discretion ofBPA, BPA may apply any excess
revenue from the property as an offset of the proposed budget for any BPA-funded project with
the Tribe.
L. In Lieu Funding. The Tribe may use property management funding from BPA only for
property management activities that are in addition to, not in lieu of, other expenditures the Tribe
is required to make under this Agreement or other agreements or provisions oflaw. This means,
for example, that the Tribe is responsible for payment of any property taxes, any city or county
property assessments such as for sewer, water, or weed control.
III. MISCELLANEOUS PROVISIONS
A. Taking Land into Trust. BPA will not object to the Tribe's application to transfer title of
any property acquired with BPA funding to the United States for the purpose of placing such land
into trust for the benefit ofthe Tribe, provided that at the time oftransfer the terms ofthis
Agreement and the conservation easement are being honored and the BIA (or other relevant
agency overseeing the transfer into trust) approves the continued management of such property
under the terms ofthis Agreement and the conservation easement. BPA may consider failure to
receive such BIA approval as a material breach ofthis Agreement. The Tribe will ensure that
BPA promptly receives all notices from BIA regarding the process for taking the land into trust,
including, but not limited to, the opportunity to participate in any NEPA evaluation conducted by
the BIA.
B. Electrical Transmission Easement. If BPA needs a transmission right of way over property
purchased in fee for the Tribe pursuant to this Agreement, then the Tribe shall grant BPA an
easement at no cost. Upon BPA's request for such an easement, the Parties will negotiate in
good faith an agreement for the easement that will recognize the purposes for which the
underlying fee property was acquired pursuant to this Agreement. The agreement for the
transmission easement should include appropriate mitigation measures consistent with this
Agreement and otherwise identified as part ofthe environmental analyses for the transmission
right ofway under NEPA, the ESA, and the Clean Water Act or any other applicable federal
laws. Transmission right of way easements shall be for the sole purpose oftransmission of
electrical power and ancillary transmission communications.
C. Exchange or Sale of Property. The Tribe may sell or exchange a property acquired with
BPA funding, provided that (a) the Tribe contacts BPA's Manager, Real Property Services, and
BPA's Director, Fish and Wildlife Program, prior to initiating any negotiations for the sale or
exchange, (b) that BPA agrees the property to be newly acquired will provide equal or better
values for fish protection, mitigation or enhancement than the existing property to be sold or
exchanged, (c) that BPA approves ofthe exchange in writing in advance and (d) that BPA is
granted a conservation easement (fee title) or a third party right ofenforcement (conservation
easement) on the new property consistent with Section II.B. BPA concurrence shall not be
unreasonably withheld.
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D. Protection of Tribal Rights. Fishing, hunting, gathering and Tribal cultural and religious
activities on the property acquired with BPA funding according to Tribal custom and law are
neither prohibited nor authorized or given additional status by this Agreement. All persons
within the exterior boundaries ofthe Colville Reservation on lands subject to Tribal jurisdiction
shall be subject to tribal regulation in accordance with applicable law. All persons shall be
subject to any prohibitions adopted as part ofthe Management Plan or Tribal Codes.
E. Public & Tribal Access. The public shall have reasonable access to any property acquired
with BPA funding. Ifthe property acquired is within the boundaries ofthe Tribe's reservation,
the Tribe may regulate access consistent with its laws, regulations, and agreements, with the
public having access to the same extent non-tribal members have access to the reservation
generally. The Tribe shall prevent any access or use that will result in material adverse impacts
to fish, a material reduction ofhabitat values, or the material alteration of other natural resource
values for which the property is managed. Nothing in this Agreement limits the authority or
ability ofthe Tribe to manage the property for public safety and habitat conservation, or to
preserve and protect cultural, historic, and religious sites, and to carry out and protect the
federally guaranteed rights ofthe Tribe and its members. Nothing in this Agreement limits or
diminishes any treaty right or privilege, or any reserved right or privilege, ofthe Tribe or its
members afforded under federal law as a result ofthe status ofthe Tribe or Tribal members,
provided that treaty or reserved rights will be exercised consistent with this Agreement. The
scope ofpublic access will be defined in the Management Plan.
F. Right to Enter. BPA shall have the right to enter property acquired with BPA funding at
reasonable times and upon reasonable notice to monitor the Tribe's compliance with this
Agreement and to enforce its terms.
G. Reporting Requirements.
I. Revenue/Expense Report. For any year in which the Tribe receives funding from BPA
for a property, the Tribe shall provide BPA an annual written report, on a due date determined by
BPA, generally describing management activities undertaken and proposed, and detailing
revenues and expenditures. The report shall show all revenue the Tribe has earned or received
for the property per Section ILK, and shall document the deposit ofthe revenue into a property-
specific account. The report shall show each expenditure made by the Tribe throughout the year,
which expenditure the Tribe has received BPA payment for or expects to receive BPA payment
for, and which reimbursable costs are still outstanding. The report shall also document each
withdrawal made from the property management account throughout the year, and briefly
describe the purpose and result of each withdrawal. Ifrequested, the Tribe shall provide BPA
with access to all related financial records, and allow BPA to seek answers to any accounting
questions it may have related to a property.
2. The Tribe shall report to BPA any conditions or events which may adversely affect
the natural values of the property acquired.
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H. Dispute Resolution
I. Negotiation. The Parties shall attempt in good faith to resolve any dispute arising out
of or relating to this Agreement by negotiating between executives and/or officials who have
authority to settle the controversy and who are at a higher level ofmanagement than the person
with direct responsibility for administration ofthis Agreement. Either Party may give the other
Party written notice ofany dispute not resolved in the normal course of business. Within 30 days
after delivery ofthe notice, the receiving Party shall submit to the other Party a written response.
The notice and response shall include (a) a statement ofeach Party's position and a summary of
the arguments supporting that position, and (b) the name and title ofthe executive or official who
will represent the Party and ofany other person(s) who will accompany the executive or official.
Within 30 days after delivery ofthe disputing Party's notice, the representative ofboth parties
shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably
deem necessary, to attempt to resolve the dispute. All reasonable requests for information made
by one Party to the other will be honored.
Ifthe matter has not been resolved within 60 days ofthe disputing Party's notice, or ifthe
Parties fail to meet within 30 days, either Party may initiate mediation ofthe controversy or claim
as provided in the next paragraph.
2. Mediation. In the event the dispute has not been resolved by negotiation as provided
herein, the Parties may agree to participate in mediation, using a mutually agreed upon mediator.
The mediator will not render a decision, but will assist the Parties in reaching a mutually
satisfactory agreement. The Parties agree to share equally the costs ofthe mediation. The first
mediation session shall commence within 30 days from agreement to mediate. Ifthe matter has
not been resolved within 60 days ofthe first mediation session, or the Parties have not agreed to
mediation, either Party may initiate legal action as provided in the next paragraph.
3. Litigation. Ifthe Tribe determines that BPA is in violation ofthe terms ofthis
Agreement, the Tribe may bring an action at law or in equity to enforce the terms ofthis
Agreement, to enjoin the violation, and to recover any damages to which it may be entitled for
violation ofthe terms ofthis Agreement. The remedies described in this paragraph shall be
cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity.
IfBPA determines that the Tribe is in violation ofthe terms of this Agreement or that a violation
is threatened, it may bring an action at law or in equity to enforce the terms ofthis Agreement, to
enjoin the violation, to recover any damages to which it may be entitled for violation ofthe terms
ofthis Agreement, and to require the restoration ofthe real property to the condition existing
before the violation, or to undertake such restoration as required by the terms of this Agreement
ifthe Tribe does not, and be reimbursed by the Tribe for such effort. The Tribe agrees that
BPA's remedies at law for any violation ofthe terms ofthis Agreement are inadequate and that
BPA shall be entitled to the injunctive relief described in this paragraph, in addition to any other
reliefto which BPA may be entitled, including specific performance ofthe terms ofthis
Agreement, without the necessity ofproving either actual damages or the inadequacy of
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otherwise available legal remedies. The remedies described in this paragraph shall be cumulative
and shall be in addition to all remedies now or hereafter existing at law or in equity.
4. Immediate Action Required. Notwithstanding any other provision in this Agreement,
if BPA determines that circumstances require immediate action to prevent or mitigate significant
damage to the conservation values ofproperty acquired pursuant to this Agreement, BPA may
pursue its remedies under this section without prior notice to the Tribe or without waiting for any
period provided for cure to expire.
I. Applicable Law. All activities undertaken pursuant to this Agreement must be in compliance
with all applicable laws and regulations. Federal law shall govern the implementation of this
Agreement and any action, whether mediated or litigated, brought or enforced. In full knowledge
ofthe provisions ofthis Agreement, the Tribe waives any claim or defense it may have against
BPA or its successors in interest under or pertaining to the Agreement based upon waiver, laches,
estoppel, adverse possession, prescription, or sovereign immunity. Any payments from the Tribe
shall be payable only from monies, assets, or real or personal properties derived from this
Agreement or the benefits of this Agreement. All other monies, assets or properties ofthe Tribe
shall be unavailable to satisfy a judgment. The waivers of sovereign immunity by the United
States bind BPA and can be found generally in the statutes establishing the jurisdiction ofthe
United States District Courts, 28 U.S.C. § 1346, the Court of Claims, 28 U.S.c. § 1491, and the
Federal Tort Claims Act, 28 U.S.C. §§ 1346, 1402,2401,2402,2411,2412,2671 et seq.
1. Acts of GodlForce majeure. Nothing contained in this Agreement shall be construed to
entitle BPA to bring any action against the Tribe for any injury to or change in a property
resulting from causes beyond the Tribe's control, including, without limitation, naturally caused
fire, flood, storm, and earth movement, or from any prudent action taken by the Tribe under
emergency conditions to prevent, abate, or mitigate significant injury to the property resulting
from such causes. Such excuse from performance shall only be allowed if such catastrophic
event or other event beyond the Tribe's control has caused a substantial degradation ofthe
habitat. The Parties will make all reasonable efforts to resume performance promptly once the
force majeure is eliminated.
K. Binding Effect. This Agreement shall be binding on the Parties and their assigns and
successors. Each Party shall have the right to enforce the terms ofthis Agreement in any court of
competent jurisdiction.
L. Effective Date. This Agreement shall be effective when signed by the Chairman ofthe Tribe
pursuant to a Tribal Resolution (Attachment B); BPA's Manager, Real Property Services; and
BPA's Vice President for Environment, Fish and Wildlife.
M. Modification. The Parties by mutual agreement may modify the terms ofthis Agreement.
Any such modification shall be in writing signed by both Parties.
N. Attorney Fees. In the event oflitigation involving this Agreement, each Party shall bear its
Page 12

own costs and attorney fees, including those incurred on appeal.
O. Waiver. The failure of any Party to require strict performance of any term ofthis Agreement
or a Party's waiver ofperformance shall not be a waiver of any future performance or of a Party's
right to require strict performance in the future.
P. Assignment. The Tribe may not assign or transfer its rights or delegate its responsibilities
under this Agreement without prior written approval from BPA, which shall not be unreasonably
withheld.
Q. Notice. Any notice permitted or required by this Agreement shall be in writing, delivered
personally to the persons listed below, or shall be deemed given five (5) days after deposit in the
United States mail, certified and postage prepaid, return receipt requested and addressed as
follows, or at such other address as any Party may from time to time specifY to the other Party in
writing. Notices may be delivered by facsimile or other electronic means, provided that they are
also delivered personally or by certified mail. The addresses listed below can be modified at any
time through written notification to the other Party.
Notices to BPA should be sent to: Notices to the Tribe should be sent to:
Director, Fish & Wildlife Program
Bonneville Power Administration
P.O. Box 3621
Portland, OR 97208
Natural Resources Director
Colville Confederated Tribe
P.O. Box 150
Nespelem, WA 99155
For notices specific to BPA's Real Property Services:
Manager, Real Property Services
P.O. Box 3621
Portland, OR 97208
IN WITNESS WHEREOF, the parties have signed this Agreement below.
Page 13

BONNEVILLE POWER ADMINISTRATION
By: ~~::e~~:, L
Gregory K. Delwiche
Vice President
Environment, Fish and Wildlife
By: kktU- 1-t1fk11Arflt
r Margareth H. Wolcott
Date:
Date:
Page 14

CONFEDERATED TRIBE OF THE COLVILLE RESERVATION
By ~/ AEM{{Jd) Date: ( -L'-f -c) $7
NUchio E.Nhrrchand
Chairperson, Colville Business Council
Page 15

ATTACHMENT A -FORM FOR DEED OF CONSERVATION EASEMENT
DEED OF CONSERVATION EASEMENT
THIS GRANT DEED OF CONSERVATION EASEMENT is made this __ day of ___,
20--, by the Confederated Tribe ofthe Colville Reservation ("the Grantor" or "the Tribe"), in
favor of the United States ofAmerica, acting by and through the Department of Energy,
Bonneville Power Administration, based in Portland, Oregon ("the Grantee" or "BPA").
I. RECITALS
A. The Grantor is the fee simple [or in the case oftrust allotments, beneficial] owner ofthe real
property known as the [INSERT NAME] property, described in Exhibit A [LEGAL
DESCRIPTION GOES INTO EXHIBIT A], attached to this deed and incorporated by reference.
This property may be referred to herein as Easement Lands.
B. The Bonneville Power Administration (BPA) is a power-marketing agency within the United
States Department of Energy. The Pacific Northwest Electric Power Planning and Conservation
Act, 16 U.S.C. 839b et seq. ("Act") directs BPA to protect, mitigate, and enhance fish and
wildlife affected by the development and operation ofFederal hydroelectric projects ofthe
Columbia River and its tributaries, in a manner consistent with the purposes ofthe Act, the
program adopted by the Pacific Northwest Electric Power and Conservation Planning Council
("Council") under subsection 4(h) ofthe Act, and other environmental laws. BPA has the
authority pursuant the Northwest Power Act, 16 U.S.C. §§ 839b(h) and 839f(a), the Federal
Columbia River Transmission System Act, 16 U.S.C. §838i(b), or the Bonneville Project Act, 16
U.S.C. §§ 832a(c) through (t), to acquire real estate or to assist in the acquisition and transfer of
real property interests.
C. The [INSERT NAME] property totals approximately [INSERT NUMBER] acres and
[INSERT RELEVANT FEATURES DESCRIPTION, ESPECIALLY AS TO FISH HABITAT.
Acquisition ofthe property will help improve the natural habitat ofthe property for fish
[EXPLAIN WHICH FISH AND WHY].
D. The Tribe and BPA have entered into an agreement governing the acquisition and use ofthe
[INSERT NAME] property [or easement lands]. The Memorandum ofAgreement Between the
Confederated Tribe ofthe Colville Reservation and the Bonneville Power Administration For
Acquisition and Management of Habitat for Protection, Mitigation, and Enhancement of
Resident and Anadromous Fish (2008) (hereinafter "2008 MOA") is incorporated by reference
into this Conservation Easement and is on file with BPA Manager, Real Property Services,
P.O. Box 3621, Portland, OR 97208-3621. The Tribe intends to convey to BPA the right to
preserve and protect the conservation values of [INSERT NAME] property, as described in Part
III, below.
Page 16

II. CONVEYANCE AND CONSIDERATION
For and in consideration ofthe funding BPA provided to the Tribe to acquire the [INSERT
NAME] property, the Tribe hereby voluntarily grants and conveys to the United States of
America a Conservation Easement over the [INSERT NAME] property for a term of99 years
from the date ofthis Deed of Conservation Easement.
III. PURPOSE
It is the purpose of this Conservation Easement to retain the conservation values ofthe [INSERT
NAME] property by protecting its natural resources, maintaining or enhancing air or water
quality, and preserving its underlying archaeological or cultural resources, and preventing any
use ofthe [INSERT NAME] property that will impair or interfere with the conservation values of
the [INSERT NAME] property. The conservation values include the following: fish and their
habitat, including the riparian and upland habitats that affect instream habitat; wildlife that is
present and its habitat; historical and cultural resources; and water quantity and quality including
temperature, sediment load, and flow levels. The Tribe intends that this Conservation Easement
will confine the use of the [INSERT NAME] property to such activities as are consistent with
this purpose. BPA shall have the right, but not the obligation, to enforce any and all terms ofthis
Easement.
IV. RIGHTS CONVEYED TO GRANTEE
A. To accomplish the purpose ofthis Conservation Easement, the Tribe conveys the following
rights to BPA regarding the [INSERT NAME] property. BPA has the right to:
• Access and inspect the property at all reasonable times upon reasonable notice to assure
compliance with this Conservation Easement.
• To prevent any activity on the property inconsistent with this Conservation Easement, the
2008 MOA, or any management plan developed and adopted by the Parties pursuant to
the terms ofthe 2008 MOA, and to require the restoration of areas or features ofthe
property that are damaged by any inconsistent use.
• To obtain an easement at no cost for the construction, operation and/or maintenance of
transmission facilities on the property in accordance with the 2008 MOA.
• To ensure the Tribe does not convey the property without BPA's prior written consent.
B. Pursuant to the 2008 MOA the Tribe is obligated to develop a property Management Plan for
the [INSERT NAME] property, and BPA has the right to approve that plan for conformance with
the 2008 MOA and this Conservation Easement. Once the plan is completed and approved by
both ofthe Parties, the Parties may agree to record a copy in the land record of [INSERT
COUNTY NAME] County or the U.S. Bureau ofIndian Affairs, as appropriate, and substitute
the restrictions in the plan for those in subsection V below.
Page 17

V. PROHIBITED USES
The Tribe will ensure that the property acquired with BPA funds is protected and managed for
fish on behalfof BPA and the United States, preventing any and all uses of the property that are
inconsistent with the 2008 MOA, the Northwest Power Planning Council's Columbia River
Basin Fish and Wildlife Program as amended, the Northwest Power Planning Act, the property
Management Plan, or other laws applicable to BPA including the ESA. Prohibited uses ofthe
property acquired or managed under this Conservation Easement include those specifically listed
below. However, the Parties intend that any activity that violates the purposes ofthis easement is
prohibited, and therefore the list identified below is not exhaustive. Prohibited uses include:
I. All residential, commercial, or industrial uses ofthe property, except as permitted in the
Management Plan;
H. Erecting ofany building, billboard, or sign except as approved in the Management Plan;
HI. Depositing of soil, trash, ashes, garbage, waste, bio-solids or any other material except as
allowed under applicable federal, state, and local laws, at locations approved of in the
Management Plan;
IV. Excavating, dredging or removing ofloam, gravel, soil, rock, minerals, sand, hydrocarbons
or other materials, except as permitted in the Management Plan;
v. Otherwise altering the general topography of the property, including but not limited to
building ofroads and flood control work, except for work related to restoration or habitat
improvement projects identified in the Management Plan;
VI. Granting any easement, lien, or other property interest for any purpose, over the property
(including water rights) acquired or managed pursuant to the 2008 MOA without the
written consent of Grantee;
VH. Any other use that, overall, the Tribe or BPA determines has a material negative impact on
fish or wildlife habitat.
VI. PERMITTED USES
The Tribe reserves, for itself and its heirs, successors and assigns, the right to use the [INSERT
NAME] property in all ways which are consistent with the purposes ofthe 2008 MOA and this
Conservation Easement and which are not otherwise prohibited.
VII. ADMINISTRATIVE MATTERS
The provisions ofthe 2008 MOA shall govern the administration ofthis Conservation Easement
where not specifically set forth herein. Provisions for Dispute Resolution and Remedies,
Page 18

Applicable Law, Waivers, Notice and other administrative provisions ofthe 2008 MOA are
specifically set forth below in this Easement for ease ofreference:
1. Negotiation. The Parties shall attempt in good faith to resolve any dispute
arising out ofor relating to this Agreement by negotiating between executives and/or
officials who have authority to settle the controversy and who are at a higher level of
management than the person with direct responsibility for administration ofthis
Agreement. Either Party may give the other Party written notice ofany dispute not
resolved in the normal course ofbusiness. Within 30 days after delivery ofthe notice, the
receiving Party shall submit to the other Party a written response. The notice and
response shall include (a) a statement ofeach Party's position and a summary ofthe
arguments supporting that position, and (b) the name and title of the executive or official
who will represent the Party and of any other person(s) who will accompany the
executive or official. Within 30 days after delivery of the disputing Party's notice, the
representative of both parties shall meet at a mutually acceptable time and place, and
thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute.
All reasonable requests for information made by one Party to the other will be honored.
If the matter has not been resolved within 60 days ofthe disputing Party's notice,
or if the Parties fail to meeting within 30 days, either Party may initiate mediation of the
controversy or claim as provided in the next paragraph.
2. Mediation. In the event the dispute has not been resolved by negotiation as
provided herein, the Parties may agree to participate in mediation, using a mutually
agreed upon mediator. The mediator will not render a decision, but will assist the Parties
in reaching a mutually satisfactory agreement. The Parties agree to share equally the
costs ofthe mediation. The first mediation session shall commence within 30 days from
agreement. If the matter has not been resolved within 60 days of the first mediation
session, or the Parties have not agreed to mediation, either Party may initiate legal action
as provided in the next paragraph.
3. Litigation. Ifthe Tribe determines that BPA is in violation ofthe terms ofthis
Agreement, the Tribe may bring an action at law or in equity to enforce the terms ofthis
Agreement, to enjoin the violation, and to recover any damages to which it may be
entitled for violation ofthe terms ofthis Agreement. The remedies described in this
paragraph shall be cumulative and shall be in addition to all remedies now or hereafter
existing at law or in equity. If BPA determines that the Tribe is in violation ofthe terms
ofthis Agreement or that a violation is tlueatened, it may bring an action at law or in
equity to enforce the terms ofthis Agreement, to enjoin the violation, to recover any
damages to which it may be entitled for violation ofthe terms ofthis Agreement, and to
require the restoration ofthe real property to the condition existing before the violation,
or to undertake such restoration as required by the terms ofthis Agreement ifthe Tribe
does not, and be reimbursed by the Tribe for such effort. The Tribe agrees that BPA's
remedies at law for any violation of the terms ofthis Agreement are inadequate and that
Page 19

BPA shall be entitled to the injunctive relief described in this paragraph, in addition to
any other reliefto which BPA may be entitled, including specific performance ofthe
terms ofthis Agreement, without the necessity ofproving either actual damages or the
inadequacy of otherwise available legal remedies. The remedies described in this
paragraph shall be cumulative and shall be in addition to all remedies now or hereafter
existing at law or in equity.
4. Immediate Action Required. Notwithstanding any other provision in this
Agreement, if BPA determines that circumstances require immediate action to prevent or
mitigate significant damage to the conservation values ofproperty acquired pursuant to
this Agreement, BPA may pursue its remedies under this section without prior notice to
the Tribe or without waiting for any period provided for cure to expire.
Applicable Law. All activities undertaken pursuant to this Agreement must be in
compliance with all applicable laws and regulations. Federal law shall govern the
implementation ofthis Agreement and any action, whether mediated or litigated, brought
or enforced. In full knowledge ofthe provisions ofthis Agreement, the Tribe waives any
claim or defense it may have against BPA or its successors in interest under or pertaining
to the Agreement based upon waiver, laches, estoppel, adverse possession, prescription,
or sovereign immunity. Any payments from the Tribe shall be payable only from monies,
assets, or real or personal properties derived from this Agreement or the benefits ofthis
Agreement. All other monies, assets or properties ofthe Tribe shall be unavailable to
satisfY a judgment. The waivers of sovereign immunity by the United States bind BPA
and can be found generally in the statutes establishing the jurisdiction of the United States
District Courts, 28 U.S.C. § 1346, the Court of Claims, 28 U.S.c. § 1491, and the Federal
Tort Claims Act, 28 U.S.C. §§ 1346, 1402,2401,2402,2411,2412,2671 et seq.
Attorney Fees. In the event ofiitigation involving this Agreement each Party shall bear
its own costs and attorney fees, including those incurred on appeal.
Waiver. The failure ofany Party to require strict performance of any term ofthis
Agreement or a Party's waiver ofperformance shall not be a waiver of any future
performance or of a Party's right to require strict performance in the future.
Assignment. The Tribe may not assign or transfer its rights or delegate its
responsibilities under this Agreement without written approval from BPA, which shall
not be unreasonably withheld.
Notice. Any notice permitted or required by this Agreement shall be in writing, delivered
personally to the persons listed below, or shall be deemed given five (5) days after deposit
in the United States mail, certified and postage prepaid, return receipt requested and
addressed as follows, or at such other address as any Party may from time to time specifY
to the other Party in writing. Notices may be delivered by facsimile or other electronic
means, provided that they are also delivered personally or by certified mail. The
Page 20

addresses listed below can be modified at any time through written notification to the
other Party.
Notices to BPA should be sent to: Notices to the Tribe should be sent to:
Director, Fish & Wildlife Program
P.O. Box 3621
Portland, OR 97208
Natural Resources Director
Colville Confederated Tribe
P.O. Box 150
Nespelem, WA 99155
For notices specific to BPA's Real Property Services:
P.O. Box 3621
Portland, OR 97208
VIII. APPROVAL BY THE SECRETARY OF THE INTERIOR
The Tribe may submit this Conservation Easement to the Bureau oflndian Affairs, as the
authorized representative ofthe Secretary ofthe Interior, if any approval by the Secretary is
required.
IX. SIGNATURE AND ACKNOWLEDGMENTS
To have and to hold the easement herein granted unto the United States and its successors and
assigns.
IN WITNESS WHEREOF, the undersigned Tribe has executed this instrument this __day of
~_______, 20xx.
STATE OF WASHINGTON)
) ss.
County of )
THE CONFEDERATED TRIBE OF THE
COLVILLE RESERVATION
ACKNOWLEDGMENT
On this ::-____day of~__________, 20~___ , before me
personally
appe~ed.~___~~___~~~~~~___~__~~____~__
known to me or proved to me on the basis of satisfactory evidence to be the person who executed
Page 21

the within instrument as the ________----,_--,-________--,-____--,-_
acknowledged to me that he executed the same freely and voluntarily in such capacity; and on
oath stated that he was authorized to execute said instrument in such official or
representative capacity.
Notary Public in and for the
State of____________
(SEAL) Residing at __________
My commission expires
Page 22

ATTACHMENT B
[TRIBAL RESOLUTION APPROVING MOA]
Page 23

EMERGENCY
RESOLUTION
2008-032
WHEREAS, it is the recommendation ofthe Natural Resource Committee to
approve the attached Memorandum ofAgreement Between the Confederated Tribes of
the Colville Reservation and the Bonneville Power Administration forAcquisition and·
Management ofHabitat for Protection, Mitigation and Enhancement ofResident and
Anadromous Fish. To authorize the Chairman ofthe Business Councilor his designee to
execute the contract on behalfofthe Tribes.
THEREFORE, BE IT RESOLVED, that we, the Colville Business Council, by
authority of Resolution 1991-431 (10 affirmative signatures on this recommendation
sheet, an emergency)this 28th day of January, 2008, acting for and in behalfofthe
Colville Confederated Tribes, Nespelem, Washington, do hereby approve the above
recommendation ofthe Natural Resource Committee.
The foregoing was duly enacted by the Colville Business Council by a vote of 10
FOR 0 AGAINST 0 ABSTAINED, under authority !:ontained in Article V, Section I(a)
ofthe Constitution ofthe Confederated Tribes ofthe Colville Reservation, ratified by the
Colville Indians on February 26, 1938, and approved by the Commissioner ofIndian
Affairs in April 19, 1938.
cc: Natural Resource Committee Chair
CBC Administrative Assistant
BIA Superintendent
Dept. or Program: Joe Peone, F&W
ATTEST:
·~I'd ddl44Mlcliael Marclfand, Chairperson
Colville Business Council

2008 Colville Fish Habitat MOA

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