1. New Frontiers in Rights-of-Way
Jennifer Turner, Division of Indian Affairs, Office of the Solicitor, Dep’t of the Interior

2. Statutory Background
Statutory Authority for Rights-of-Way across Indian lands:
Patchwork of statutes beginning in late 1800s authorized Secretary to grant rights-of way across Indian lands for specific purposes (e.g. 25 USC 311, 25 USC 312, 25 USC 321)
In 1948, Congress passed a general statute authorizing Secretary to grant rights-of-way for any purpose over all trust and restricted lands, “subject to such conditions as [s]he may prescribe.” 25 U.S.C
Goal of 1948 Act was to simplify rights-of-way and to transition to uniform system
*The views expressed in this presentation are my own and do not necessarily reflect the views of the Department of the Interior.

3. Statutory Background – 1948 Act
Tribal Consent required on tribal lands. 25 U.S.C. 324
Individual landowner consent required as follows:
Only consent of majority of interests required
Secretary can grant without consent if owners of interests are “so numerous that it would be impracticable to obtain consent”
Specific provisions for whereabouts unknowns/deceased owners 25 U.S.C. 324
“Just” compensation must be paid to the landowner, 25 U.S.C. 325

4. ROW Regulatory Background – Need for Revision
ROW regulations published at 25 CFR Part 169
Old ROW regulations published in 1968
Few sections updated in 1972, 1973, others in 1980
Relied on statutory authorities specific to type of ROW
Included outdated requirements
Old regs didn’t reflect reality of 21st Century ROW transactions

5. Final ROW Rule Proposed rule published June 17, 2014 (79 FR 34455)
176 written comments (70 from tribes; 19 from tribal associations/members; 12 from state/local government entities; 42 from energy sector)
Final rule published Nov. 19, 2015 (80 Fed. Reg )
Final rule effective April 21, 2016, after several extensions

6. Major Changes in Final Rule
Changes to Simplify/Streamline ROWs
Clarified the authority by which BIA approved rights-of-way – only the 1948 Act
Eliminated requirements specific to different types of rights-of-way
Improving the ROW Process:
Established timelines for BIA review of ROW requests
Clarified process for BIA review of ROW documents, including assignments, amendments, and mortgages
Allowed BIA disapproval only where there is a stated compelling reason
Encouraged negotiation of ROW terms/conditions, by both individual Indians and tribes

7. Major Changes in Final Rule Cont’d
Supporting Tribal self-determination/jurisdiction
Provided greater deference to tribal decisions re: ROWs, particularly regarding compensation and duration
Clarified that tribes retain jurisdiction over land covered by ROW (in response to Strate)
Subject to applicable federal law, barred state/local taxation of improvements, activities, interests
Deference to negotiated remedies on tribal land (ie, tribes can terminate ROW without BIA approval)

8. Major Changes in Final Rule Cont’d
Misc. Other Changes
Elimination of requirement for BIA approval of surveys
Included guidelines for ROW terms on individually owned land; deference to tribal determinations on tribal land
New bonding/insurance, reclamation, and due diligence requirements
Specific trespass provision
Piggybacking provisions

9. New ROW Regulations - Litigation
On March 11, 2016, Western Energy Alliance filed a lawsuit challenging final rule and seeking a PI
At issue in the lawsuit: BIA’s authority to issue the final rule; NEPA; jurisdiction; taxation; assignments
On April 19, 2016, judge denied PI
WEA dismissed their lawsuit

10. New ROW Regulations - Implementation
BIA has developed sample forms and frequently asked questions document
BIA has issued guidance on which provisions apply to rights-of-way issued before effective date of regulations
For more information -

11. Implementation Questions
Procedural/Non-Procedural Provisions
Tribal Jurisdiction
Service Lines
Documentation of assignments
Taxation

12. Jennifer.turner@sol.doi.gov (505) 248-5617
Questions??
(505)