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I I I I I I I I I I I I I I I I I I I on062D assistance to fully develop their water resources. As such, ail tribal water that is unused, whether previously used or not should be included in the defInition. Moreover, because federally reserved water rights cannot be abandoned, forfeited, or otherwise lost through non-use, unused reserved water should be included in the defInition. Present perfected right or PPR: The rule should clarify how the vested water rights of the three mainstem tribes above Hoover Dam will be addressed. Unused apportionment: We agree with the Fort Mohave Indian Tribe that the defInition should recognize the right of the tribes to detennine whether water reserved to them constitutes "unused apportio~ent" available for offstream storage. We agree that the Secretary cannot leave that detennination to the states. ~414.3 Interstate storage agreements and redemption of storage credits. We reiterate our comments above concerning the need to develop as part of this rulemaking a procedural framework that allows tribes the opportunity to participate and benefIt from offstream storage and interstate transfer of Colorado River water. Draft Programmatic Environmental Assessment Once again we concur with the comments submitted on behalf of the Fort Mohave Indian Tribe. Those comments should be considered incorporated herein. Request for Government-to-Government Consultation We are troubled that the Department did not engage the affected tribes in a government-to-government consultation concerning the possible impacts of this proposed rule. This violates express Departmental policy. See Secretarial Order 3175 - Departmental Responsibilities for Indian Trust ReSOurces (November 8, 1993). The rules encourage the creation of state-authorized entities that will utilize unused tribal water for their own benefIt to the detriment of tribes. The Department has curiously abdicated its trust responsibility to the tribes in the hope that the states can better protect the tribal interests than the federal government. We respectfully request that the Department engage in meaningful government-to-government consultation with affccted tribes, before taking any further action, to discuss the issues raised in this rulemaking. Please do not hesitate to contact me if you have any questions concerning these comments. Thank you for your anticipated cooperation. Sincerely, NA V AlO NA nON DEPARTMENT OF JUSTICE