Rights-of-Way Proposed Rule Change: A little too long?

In August 2014, I wrote an article published in the Native Times publication based in Tahlequah, Oklahoma. It was titled “Rights-of-Way Proposed Rule Change: Whats the rush?” Maybe I shouldn’t have wrote the article because someone somewhere took it to heart.



Congress passed the Act of February 5, 1948, ch. 45, 62 Stat. 17, 25 U.S.C. 323 et seq. ("Act") which is the primary statute used presently for rights-of-way. It is also commonly referred to as the 1948 Act. The 25 Code of Federal Regulations Part 169 (“CFR”), Rights of Ways (“ROW”) Across Indian Lands was last revised March 30, 1982.



The Bureau of Indian Affairs (“BIA”) regulatory draft team consisted mostly of who I considered the “Untouchables” when it came to dealing with rights-of-ways. They were extremely knowledgeable field folks who took care of Indian Country on the ground level and were veterans in negotiating and processing ROW directly with Indian landowners and users (“Grantee”). Collectively they experienced every issue that could and did arise in Indian Country and some which may not have quite fit into the box of what was given to us under the current CFR regulations.



Subsequently, the draft Regulation revision was completed in mid 2008. The draft was submitted to the BIA for compliance with regulatory requirements in conducting landowner consultation, considering every comment, and then finalizing the Regulations for submission for a Notice of Final Rulemaking in the Federal Register.



BIA was required to consider every comment but not required to include them. I know, all of us think we are the tribe that the regulations should work for, but there are 566 federally recognized tribes who have concerns that other tribes may not have. Once it was published, it would take usually thirty days to be considered final and replace the previous revision.



However, a staff person in BIA Central Office, not having anything else to do and wanting to justify her value, selected a new draft team and again held landowner consultations going to various regions throughout Indian Country. The staff person had no experience whatsoever in negotiating and processing a right-of-way. Wow, figure that out. By then, the quality depth of technical experts had conducted a mass retirement action under the Federal Government’s Early retirement plan.



Finally, landowner consultations were held with deadlines initially in August 2014. But due to pressure from some interested parties the comment period was extended to October 2014 and finally November 2014. These interested parties were primarily individual landowners without access to legal guidance such as tribal attorneys.



Private trainers and consultants saw big money conducting training about what was wrong with the proposed regulations. Some even stated that the Bureau of Indian affair’s purpose in the changes was to take away land from individual Indian landowners. I read some articles published by attorneys which stated the same belief.



There is only one authority for the taking of individual Indian landowners land and it is found at 25 U.S.C. § 357 Condemnation of Lands Under Laws of States. This law is a statute that has always been available so the possibility of having a portion of your land taken, e.g. roads, power, pipelines, etc., wasn’t just introduced under the new proposed regulations. That’s why its so important to either request the BIA or retain a qualified representative to negotiate what you do and don’t want included in the right-of-way grant.



Doesn’t mean the Grantee will accept it, but their only recourse is to condemn the land initially in federal court. Condemnation is costly and very time consuming for Grantees so there may be some things they might consider, especially if they need to get it done quickly.



There were statements, including some former BIA employees, that the proposed regulations were the worst ever written. Wow, pretty strong considering the proposed regulation provided landowners with more flexibility and shifted more power to them. The proposed CFR even clearly defined how many owners constituted a “highly fractionated” tract using the same definition used in the American Indian Probate Reform Act.



Folks got so stirred up by all the rhetoric that they pressed the Assistant Secretary – Indian Affairs not once, but twice to extend the comment period. They suggested creating a new proposed draft team made up of various federal experts and individual landowners. Makes sense I guess. Then there would be an inexperienced Team Leader and include inexperienced individual Indian landowners. There probably are some experienced non-federal individuals throughout Indian Country, but what guarantee is they would be on the team?



Lets see, started in 2007 and now it’s 2015. The proposed revision still has not been finalized. By the time the regulations are final, the bulk of pending ROW applications will have been completed. At Fort Berthold Indian Reservation, center of the current oil boom, a massive effort is being performed to install oil and gas capturing lines and push it to a central gathering location. This would reduce oil truck traffic threw towns and communities. It would also reduce the need for flaring of productive wells and provide gas royalties to mineral owners. Is that a bad thing?



The proposed regulation could languish for a few more years on someone’s desk, but in the meanwhile, Grantees would continue to benefit under the current regulations. I guess it’s your preference, but don’t wait too long, or new regulations will be minimized as to applications which are now being granted under the existing Regulation.





Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at http://roundhousetalk.com.