The Rights and Wrongs of Right-of-Way Rules

Jay Daniels

In an article entitled "Co-op members protest BIA proposal," (Rio Grande Sun, August 7, 2014), Jemez Mountain Electrical Cooperative officials and some of their customers ("Jemez") are speaking out against proposed federal rule changes they believe could lead to higher utility costs.

The Bureau of Indian Affairs is accepting comments on proposed changes to the Code of Federal Regulations that “would comprehensively update and streamline the process for obtaining BIA grants of rights-of-way on Indian land,” until August 18, 2014.

Co-op officials and Northern New Mexicans also commented that they believe the rule changes to 25 CFR Part 169 would also set the foundation for future gas, telephone and Internet fee increases. It affects more than someone's electric bill.

Having worked on this proposed rule change as a BIA national team member, I must admit that we did discuss why most utility co-ops did not offer compensation to landowners for a right-of-way. There are two types of landowners involved in the granting of utility rights-of-way. The first and probably primary is an end user, or individual needing service delivered to his or her homesite. The argument was that if the utility co-op has to pay right-of-way compensation, the cost of construction and acquiring additional lands would be potentially greater than the return that could be expected by the Co-0p. Thus, the only recourse is for the end user to pay the entire cost to acquire services to his or her residence.

The second type of landowner is one who derives no immediate benefit from granting a right-of-way. This happens when the land is used for farming, hay or pasture land. The landowner of this type of land does not need utility services and may or may not need it in the future. His or her refusal to grant a right-of-way without compensation is understandable but can delay or even cancel utility access to other landowners along the utility route, or what we call "footprint" of the right-of-way. My thought then and now is that on portions and or at the end of the utility line is a rich farmer who drinks coffee and has breakfast with Co-op Commissioners, or perhaps is a a Co-op Commissioner himself. Those relationships mean the utility lines won't be removed from the existing or proposed right-of-way. You know what they say about politics.

Some team members had concerns that compensatory requirements would prevent granting rights-of-way or renewals of expiring easements. Possibly, but regardless, BIA has a fiduciary trust responsibility to obtain compensation for landowners unless some other form of compensation is approved which could waive access and construction cost assessments by utility companies. 

The argument Jemez is making is legitimate and understandable. When utility companies increase rates usually it is because their costs to provide services has increased, which would include monetary compensation for new or existing rights-of-way.

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 utility rights-of-way, as well as other types.

In Blackfeet Indian Tribe, Petitioner v. Montana Power Company, et al., Defendant, Supreme Court No. 87-2108, October 1988, the Court responded to the question “Whether the Act authorized the Secretary of the Interior, with the consent of the Blackfeet Tribe, to grant pipeline rights-of-way over tribal land for a term of 50 years.”

During the 1960′s, the Secretary of the Interior (Secretary) granted the Montana Power Company (MPC) five rights-of-way for pipelines across lands on the Blackfeet Indian Reservation in Montana. The Blackfeet Indian Tribe (Tribe) consented to the rights-of-way for a term of 50 years. The Secretary approved the rights-of-way under the Act. In 1983, the Tribe filed suit against the MPC and the Secretary, alleging that oil and gas pipeline rights-of-way were limited to 20 years under the Act of March 11, 1904, 25 U.S.C.§ 321 (1904 Act), and the Secretary had exceeded his authority in approving rights-of-way for more than 20 years and MPC’s use of the pipelines after expiration of 20 years amounted to a trespass.

The Court believed that Congress enacted the Act to strengthen the Department of the Interior’s ability to grant rights-of-way across Indian lands for any legitimate purpose. In each application for a right-of-way over Indian land, the Secretary must make certain that the right-of-way sought falls within a category specified in some existing statute, which may limit the type of right-of-way that may be granted, or the character of the land across which it may be granted.

The Court believed that Congress intended to give the Secretary the “ability to grant rights-of-way with whatever restriction and conditions he determined were appropriate in light of his trust responsibilities to the Indians.” The Court also believed that the Secretary could promulgate regulations in any manner and for any legitimate purpose. In conclusion, the Court denied certiorari and the lower court’s decision was affirmed.

In light of the Court's conclusion, reasonably BIA could provide some protection against monetary, or even payment in kind, compensation for any costs resulting from the constructing and maintenance, including monetary compensation, now and in the future through their proposed rule making of the current regulations.

The BIA could show true tribal consultation by addressing this concern. It would require extending the comment period to ensure that everything has been flushed out. After all, Indian Country has been waiting since 1948 to see regulations that clearly address all of their concerns. So, what's the rush? Extend the comment period and enter into true tribal consultation and partnership.

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 RoundhouseTalk.com.

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