On November 19, 2015, the Bureau of Indian Affairs (BIA) published a final rule for Rights-of-Way on Indian Land in the FEDERAL REGISTER at 80 FR 72491 (Nov. 19. 2015). The rule takes effect on December 21, 2015. Interior Secretary Jewell had previously announced the rule on November 5, 2015 at the 2015 White House Tribal Nations Conference. The new rule revises existing rights-of-way regulations, published in 25 C.F.R. Part 169. We previously reported on the BIA’s proposed rule to revise the rights-of-way regulations in our General Memorandum 14-044 of June 19, 2014.
According to Secretary Jewell, the new regulations will “help expand opportunities for individual landowners and tribal governments to generate investment, expand economic opportunity and provide greater transparency and workability through the Bureau of Indian Affairs’ leasing and right-of-way processes.”
In response to comments strongly opposed to a provision in the proposed rule that would allow parties to consent to the applicability of state law on rights-of-way through tribal lands, the Department eliminated the provision. In fact, the new rule eliminates any specific mention of when state or local law may apply and instead provides that “generally” state and local laws do not apply.
The new rule also makes clear the intent of the United States to preserve an Indian tribe’s jurisdiction in all new rights-of-way. The Department’s commentary states that the U.S. Supreme Court’s ruling in Strate v. A-1 Contractors, 520 U.S. 438, 451-52 (1997) was limited to the facts in that case and arose out of the failure of the U.S. and the tribe to expressly reserve jurisdiction over the right-of-way granted in the case. The new rule addresses this issue by requiring all new grants of rights-of-way to expressly reserve tribal jurisdiction.
In general, the new rule:
• Simplifies requirements by relying on general statutory authority to grant rights-of-way and eliminating outdated requirements that apply to specific types of rights-of-way;
• Clarifies the processes for BIA review of right-of-way documents;
• Streamlines the process for obtaining a right-of-way on Indian land by:
o Eliminating the need to obtain BIA consent for surveying in preparation for applying for a right-of-way;
o Establishing timelines for BIA review of rights-of-way requests;
• Adds certainty to applicants by allowing BIA disapproval only where there is a stated compelling reason;
• Provides Indian landowners with notice of actions affecting their land;
• Establishes a policy that the BIA will defer, to the maximum extent possible, to the Indian landowners’ determination that the right-of-way is in his or her best interest;
• Promotes tribal self-determination and self-governance by providing greater deference to tribes on decisions affecting tribal land;
• Clarifies tribal jurisdiction over lands subject to a right-of-way by including terms intended to preempt state and local government taxation of improvements and activities subject to a right-of-way and by expressly reaffirming tribal tax jurisdiction over those improvements, activities, and right-of-way interests; and
• Incorporates tribal land policies in processing a request for a right-of-way.
Copies of the Interior Department and BIA press releases are attached. The final rule is available here: http://www.gpo.gov/fdsys/pkg/FR-2015-11-19/pdf/2015-28548.pdf
Please let us know if we may provide additional information on the rights-of-way rule.