By: Gabriela Rios | Law Clerk | gabriela.rios@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com
A new rule covering rights-of-way on tribal lands that may benefit your tribal government and its citizens is now in effect. The final rule for rights-of-way on Indian land was published in the Federal Register (Volume 80, Number 223) on November 19th, 2015. The rule went into effect at the end of last year, December 21st, 2015, and applies to new rights-of-way and to most changes and/or renewals of existing rights-of-way. This is the first time the rule has been updated since 1980 and marks a significant change in the decision making process for BIA approving rights-of-way across Indian land. The Final Rule can be found here.
Why the change?
The rule addresses outdated policies that lingered from the 1960’s and 1980’s. The Bureau of Indian Affairs (BIA) identified numerous issues in the right-of-way process that continued to hinder economic development in Indian Country. The new rule intends to expedite review of right-of-way applications for more than 56 million acres of land that are held in trust for tribal governments and Native people throughout Indian Country. The biggest change will be the defined and shortened deadlines imposed on the BIA for decision making. The agency will be required to issue a decision within 60 days of receiving a new right of way application from a Tribe and within 30 days of receiving a proposed amendment to a right of way. In the past, the BIA often times would delay approval, resulting in the loss of economic development or other much needed infrastructure on reservations. The new rule addresses such delays head-on.
In addition, tribes often complained that the BIA would hold up approval, or even deny an application for reasons unrelated to the tribe’s primary needs. The new rule states certain instances when BIA approval is required (and when BIA review can be avoided), and limits the BIA’s right to disapprove a right-of-way grant to those instances when the agency has a stated compelling reason to do so, and by clarifying when BIA approval is required.
The effort to empower tribal governments through self-determination and self-governance is evident in the language in the new rule. The final rule seeks to improve transparency into the process and provide Indian landowners, including tribal governments, greater influence over the decision to grant or deny a right-of-way. It also reiterates that landowners can negotiate the terms of rights-of-way directly with applicants without governmental intervention. This includes the type of compensation and the amount compensation for the grant of right-of-way. There are protections for tribal governments integrated into the final rule, including protections for trust property and clarifying that a grant of right-of-way has no effect on tribal jurisdiction. Highlights of this final rule include:
Simplifying requirements by relying on general statutory authority to grant rights-of-way and eliminating outdated requirements that apply to specific types of rights-of-way.
Clarifying processes for BIA review of right-of-way documents.
Streamlining the process for obtaining a right-of-way on Indian land by:
- Eliminating the need to obtain BIA consent for surveying in preparation for applying for right-of-way; and
- Establishing timelines for BIA review of rights-of-way requests and providing provisions to compel agency action if the timelines are not adhered to.
Adding certainty to the application process by allowing BIA disapproval for only limited reasons, including where (1) the requirements of the rule are not met (including consent requirements) or (2) there is a stated compelling reason to deny the grant in order to protect the best interests of the Indian landowners. It also prevents the BIA from unreasonably withholding a grant of a right-of-way.
Formalizing notice requirements for individual Indian landowners, including requiring actual notice rather than constructive notice to landowners and providing notice to tribal governments with jurisdiction over the land, even if the tribe is not a landowner.
The rule also defers to individual Indian landowner decisions subject to an analysis of whether the decision to grant a right-of-way is in their best interest.
Promoting tribal self-determination and self-governance by:
- Providing greater deference to Tribes on decisions affecting tribal land;
- Clarifying tribal jurisdiction over lands subject to a right-of-way. The final rule explicitly recognizes that tribal law applies to rights-of-way unless inconsistent with federal law. In addition, it does not diminish tribal authority over the land subject to the right-of-way and prevents state taxation of permanent improvements, activities, and interests in the right-of-way; and
- Incorporating tribal land use requirements in processing a request for a right-of-way.
These updated rules are empowering to tribal governments and can be used for your government when creating infrastructure projects and land use development plans. The final rule is especially beneficial when negotiating leasing for wind, solar, and other business development projects for economic development on tribal land. The final rule exemplifies the BIA’s 2012 reform of its leasing regulations and continues in the spirit of self-governance to ensure tribal governments and Native people are leading their nations and development projects to self-sufficiency.
Gabriela is a citizen of the Cahuilla Band of Indians and currently clerking for Procopio. She graduated from the James E. Rogers College of Law at the University of Arizona in 2015 and was recently admitted to the State Bar of California.
Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277
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