Enough Already! Too Many Tweaks to the Right-of-Way Proposal

Jay Daniels

Perusing Facebook recently, I found a group of folks who are adamantly opposing the currently published "Proposed Rule Change for Rights-of-Way Across Indian Lands." Their rationale? They weren't the decision makers and the proposed rules are detrimental and one-sided in implementation and use.

On October 1, assistant secretary, Indian affairs, Kevin Washburn, announced he was extending the comment period for proposed rights-of-way rule to November 3. The NEW deadline allows individual tribal members to write concerns and comments on the BIA's drafted rights-of-way designed to allow toxic pipelines, transmission lines, etc across individual allottee lands.

Interior would also hold an additional tribal consultation session at NCAI annual convention. The purpose of the extension was to allow additional time to comment and, in my opinion, appease a specific group of folks who intend to thwart the rule making process because they are attempting to exert fear into other landowners that the Bureau of Indian Affairs ("BIA") is going to steal their land and allow granting of easements that could be harmful without landowner consent.

ASIA Washburn has already extended the period twice now and has also announced the Department will hold an additional tribal consultation session on the proposed regulations during the week of October 26, during the National Congress of American Indians 2014 Annual Convention in Atlanta, Ga. Folks complained that the BIA scheduled the consultation in Georgia to keep participation at a minimum. Does BIA dictate to the NCAI when and where to hold they conferences? Really? A conspiracy? 

The draft rule proposes to update Bureau of Indian Affairs (BIA) regulations at 25 CFR 169 that govern rights-of-way across Indian land which were promulgated more than 40 years ago and last updated more than 30 years ago. The regulations have been deemed ill-suited for the modern requirements for rights-of-way leasing, including the need for faster timelines for BIA approval.

The rulemaking process is set up to appoint federal technical and legal staff to "draft" proposed rules and then put them forth to tribes and individual Indian landowners for review and comment. The Department is proposing to streamline the process for obtaining BIA approval and ensure seamless consistency with recently promulgated BIA leasing regulations.

You can find additional information on the proposed rule and the upcoming consultation session, by visiting http://www.bia.gov/WhoWeAre/AS-IA/ORM/RightsofWay/index.htm.

Because of the oilfield activity and all that it involves in developing wells and infrastructure, many landowners have shown great concern that rights-of-ways across their individually-owned Indian lands will create a vacuum where they have no control over what happens to their land.

The current overreaction of promulgating rules and regulations is driven by federal contracted trainers/consulting contractors and attorneys who merely see this issue as a way to create a source of revenue for their own gain, through fear of loss of land, BIA consent without landowner approval, environmental issues, etc.

This clearly demonstrates the necessity of the regulatory drafting process that is in place. Most landowners really don't understand the process. This rule making process has been ongoing for more than seven years, but now all of a sudden there are outcries that the proposed regulations are entirely anti-landowner and entirely pro-industry and done in secrecy. No wonder it has taken more than forty years to draft updated regulations.

However, the BIA is still governed by statutory and regulatory authority and movement outside of those applications can result in federal claims to correct problems. BIA specialists, who have worked with these requirements understand what is allowable and not.

Government attorneys ensure that the law is complied with. Together, and through subsequent collaboration and soliciting of tribal/individual comments, a final rule is drafted, published, and implemented. It's a process and those who understand it the least create the most confusion and difficulty about the process.

The rulemaking process is set up to appoint federal technical and legal staff to "draft" proposed rules and then put them forth to tribes and individual Indian landowners for review and comment. If it's not legal, it will never be put forth for final publishing and implementation. In this process, every side is represented and landowner rights are protected through laws and regulations.

Of course, the best practice to follow if you don't agree with the proposed right-of-way agreement is to deny consent. The only issue in this action is that unless the majority owners feel the way you do and don't want to consent to the easement, you may be saddled with a right-of-way that you don't want. But that's the American way - Majority rules.

Another resolve would be for you to acquire, or purchase, interest from other landowners so that you can obtain majority ownership and can determine the course of your land's development. It's just like a tribal election. The majority rules and the one with the most votes wins.

One person, one vote. Indian landowners may feel that their interests are what count the most. But, one interest accounts for about 1/450,000 other owner land interests. Lets do what’s best for Indian country as a whole and get these proposed rules into the hands of BIA workers so they can truly manage your land. 

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.

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