Report maintains status quo on Indian rights-of-way

Wednesday, May 16, 2007  

The Bush administration is urging Congress to respect tribal sovereignty and stay out of right-of-way disputes unless they pose a significant impact on the energy supply.

In a report finalized on Monday, the Interior Department and the Energy Department said rights-of-way (ROW) negotiations should be left to tribes and energy companies. The departments cited sovereignty and self-determination as the guiding principles for their recommendation.

"A tribe's authority to confer or deny consent to an energy ROW across tribal land derives from its inherent sovereignty—the right to govern its people, resources, and lands," the report said.

But if a tribe and an energy company fail to come to an agreement, Congress should step in only if the dispute has a "significant regional or national effect on the supply, price, or reliability of energy resources," the departments said. Yet they cautioned lawmakers to approach each situation on a case-by-base basis.

"Negotiations between Indian tribes and energy companies for the grant, expansion, or renewal of energy rights-of-way across tribal lands have had no demonstrable effect on energy costs for consumers, energy reliability, or energy supplies to date," the report stated. "Therefore, broad changes to the current federal policy of self-determination and self-governance for tribes -- or the existing right of consent -- are not warranted at this time."

The recommendation appears to save Indian Country from any major efforts to change the rights-of-way process. It adopts the tribal view that Congressional interest only came as a result of a single dispute between one energy company and one tribe.

"They have every right to be involved in discussions and to expect fair compensation," former Sen. Ben Nighthorse Campbell (R-Colorado) said at a rights-of-way meeting in March 2006. "That's a fundamental tenet of the free enterprise system we all enjoy in this room."

The energy industry took a different tack. Citing the dispute between the Navajo Nation and a gas company -- which has since been resolved -- lobbyists persuaded Congress to authorize a study of rights-of-way on Indian lands in Section 1813 of the Energy Policy Act of 2005.

Initially, energy companies asked Congress to cut tribes out of the picture entirely. They sought a provision to authorize the Interior Department to renew rights-of-way agreements even if the tribe didn't consent.

Such a move is extremely unlikely given the recommendation of the report to maintain the status quo and consider intervention solely on a case-by-case basis. The departments found nothing of substance to most of the complaints of the energy industry.

"Current methods of valuing energy rights-of-way—through negotiations between tribes and energy companies—are guided by and in keeping with existing Federal tribal and energy policies," the report said. "In addition, recent energy legislation supports greater independence and control by tribes over their tribal land and resources."

The department acknowledged that negotiations have become protracted and that tribal compensation has risen. "However, fees paid to Indian tribes for the grant, expansion, or renewal of energy rights-of-way on tribal lands are a small component of overall consumer costs for electricity or natural gas," the report said.

Even with these types of concerns, the report said that tribes stand to lose out more than energy companies "If companies choose to build around tribal land where they can, tribes run the risk of losing economic opportunities and possible interconnects to energy transmission facilities," the departments noted.

Get the Report:
Report to Congress: Energy Policy Act of 2005, Section 1813 Indian Land Rights-of-Way Study (May 2007( } Letters to Congress (May 2007)

Rights-of-Way Report:
Draft Report to Congress: Energy Policy Act of 2005, Section 1813 Indian Land Rights-of-Way Study | Appendix: Historic Rates of Compensation for Rights-of-Way Crossing Indian Lands, 1948-2006

Get the Bill:
Energy Policy Act of 2005 (H.R.6)

Relevant Links:
Energy Policy Act Section 1813 - http://1813.anl.gov