Federal Tribal Right-of-Way Application Process (3-FD-b)
Indian tribes and the United States Federal Government have a unique and complicated relationship. The Supreme Court has referred to Indian tribes as “domestic dependent nations.” Although they possess a nationhood status and have inherent powers of self-government, their sovereignty is limited by the federal government and the United States Constitution. As a result, a trust relationship has developed between the federal government and Indian tribes. Consequently, the federal government usually exerts some type of control over Indian lands.
Indian land can be owned by either tribes or individuals. There are two types of individually-owned Indians lands:
- Trust land, where the federal government holds title to the land in fee simple for the benefit of the individual Indian landowner; or
- Restricted fee land, where the individual Indian landowner holds the title to the land, but the federal government has placed restrictions on its encumbrance or alienation.
Like individual land, Tribal land may be trust land or restricted fee land. In addition, tribes may purchase land that is outside of the reservation and is generally not subject to any restrictions against encumbrance or alienation.
See the Tribal Energy and Environmental Information Clearinghouse and the Bureau of Indian Affairs for more information.
25 U.S.C. 324 ROW Authorizations
As a result of the trust relationship between the federal government and the Indian tribes, developers must comply with federal statutes and regulations when obtaining ROWs over Indian lands. Most ROWs will be authorized under 25 U.S.C. 323, which empowers the Secretary of the Interior to authorize ROWs across Indian land for all purposes. 25 U.S.C. 324 requires the Secretary obtain approval from the tribe or (in most cases) the individual Indian landowner before the ROW may be authorized. 25 U.S.C. 325 requires compensation be paid to the tribe or individual Indian landowner. The regulations governing ROWs authorized under 25 U.S.C. 323 can be found at 25 CFR 169 et seq..
43 U.S.C. 961 ROW Authorizations
43 U.S.C. 961 empowers the Secretary of the Interior to authorize ROWs for electrical transmission across Indian reservations. Although 43 U.S.C. 961 is cited as authority in 25 CFR 169.27, it is rarely (if ever) used to authorize transmission ROWs across Indian land and has been effectively superseded by 25 U.S.C. 323.
25 U.S.C. 2218 ROW Authorizations
25 U.S.C. 2218 allows individual Indian landowners to negotiate and authorize ROWs with the Secretary of the Interior’s approval. 25 U.S.C 2218(a)(1)(A) requires a certain percentage of Indian landowners (as determined by 25 U.S.C. 2218(b)) to consent to the authorization. The Secretary of the Interior will approve the ROW if it is in the best interests of the Indian landowners.
TERA ROW Authorizations
Finally, tribes may enter into a Tribal Energy Resource Agreement (TERA) approved by the Secretary of the Interior. 25 U.S.C. 3504 permits tribes to enter into and manage leases, business agreements, and rights-of-way for the purpose of energy resource development on tribal land. Tribes who have entered into an approved TERA may authorize ROWs over tribal land without obtaining approval from the Bureau of Indian Affairs (BIA). ROWs authorized under a TERA are limited to a term of 30 years.
Land Held by the Tribe in Fee SimpleIn some cases a tribe may have purchased or acquired land in fee simple. Such land is not subject to BIA control and and leasing does not require BIA approval. Consequently, the developer should negotiate a lease with the tribe in the same way it would would negotiate a lease with any other private owner.
Tribal Right-of-Way Application Process Process
3-FD-b.1 to 3-FD-b.5 – Is the Right-of-Way Issued by the BIA?; Is the Right-of-Way Issued by a Tribe Pursuant to a TERA?; Negotiate Right-of-Way Directly with Indian Landowner
The developer must initially determine which ROW application process will be used to obtain a ROW grant on Indian land. As stated above, 25 U.S.C. 323 is the most common vehicle for ROW authorizations. If 25 U.S.C. 323 is used, the BIA will authorize the ROW with the consent of the tribe and Indian landowners.
Alternatively, the developer may negotiate directly with individual Indian landowners under 25 U.S.C. 2218, and the landowners may issue the grant directly to the developer after obtaining approval from the BIA. The developer must first obtain consent from a certain percentage of the tribal landowners. See 25 U.S.C. 2218(b) for exact percentages. The BIA may consent on behalf of the parties described in 25 U.S.C. 2218(c). Ownership is determined by BIA records at the time the developer files the application for approval. The approved ROW grant is binding on all parties, so long as the requisite consent was obtained. The proceeds from the ROW are distributed to the owners in accordance with the portion of the affected land that they own. The BIA will not approve the ROW unless it determines that the grant is in the best interests of the Indian landowners.
If the tribe has entered into a TERA that governs transmission siting, the developer and tribe may negotiate and enter into a ROW agreement without approval from the BIA. It should be noted, however, that a tribe may grant a ROW across tribal land for electric transmission lines under a TERA only if that line serves an electric generation, transmission, or distribution facility located on tribal land or a facility located on tribal land that processes or refines energy resources developed on tribal land.
3-FD-b.6 to 3-FD-b.7 – Contact BIA to Inquire About Acquiring a ROW; Hold Preliminary Discussions with Landowner and Applicant
The first step in the tribal ROW application process is to contact the BIA office with jurisdiction over the proposed site. Once contacted, the BIA provides the developer with an application for Grant of Easement for Right-of-Way.
After the initial contact, the BIA holds a preliminary discussion with the tribe, the Indian landowners, and the developer. The BIA officer explains the requirements governing the application and discusses topics such as consent requirements, purpose of the ROW, fees and termination. A full list of topics can be found in the Procedural Handbook for Grants of Easement for Right-of-Way on Indian Lands, pages 14 – 15.
3-FD-b.8 to 3-FD-b.10 – Application for Permission to Survey for Right-of-Way; Process Application for Permission to Survey for Right-of-Way; Perform Survey and Submit to BIA
The developer must submit a written application for permission to survey with the BIA before beginning survey activities. The application must include consent from the tribe and individual Indian landowners; a description of the project, its purpose and its general location, and; evidence of good faith and financial responsibility of the developer. If tribal land is involved, a tribal resolution must be obtained from the tribal governing body. In addition, the developer must provide the BIA with a check or money order (or a bond, if allowed by the BIA) sufficient to cover twice the estimated damages that may occur as a result of the survey. The BIA prepares the damages estimate.
If a corporation submits the application, a copy of its charter or articles of incorporation, duly certified by the proper state official of the state where the corporation was organized, and a certified copy of the resolution or bylaws of the corporation authorizing the filing of the application must be attached. If the land is located in a state other than the state of incorporation, a certificate stating that the developer is authorized to do business in the state where the land is located must be attached. See 25 CFR 169.4.
As soon as the BIA receives the survey application, it requests a Title Status Report (TSR) from the Land Titles and Records (LTRO) office. The BIA verifies the ownership information with the TSR and verifies that the appropriate owners have given consent. After the BIA verifies ownership, the BIA grants permission to conduct the survey. See the Procedural Handbook for Grants of Easement for Right-of-Way on Indian Lands.
Once permission has been obtained from the BIA, the developer may conduct the survey. The developer is responsible for the cost of the survey, and the survey must conform to the requirements found in 25 CFR 169.6 – 169.11.
The developer must submit the survey to the BIA. Once received, the approving official places his or her acceptance signature on the map. The developer must submit an Engineer’s Affidavit and an Applicant’s Certificate certifying the accuracy of the survey and maps. See the Procedural Handbook for Grants of Easement for Right-of-Way on Indian Lands; 25 CFR 169.11.
3-FD-b.11 – Perform Baseline Field Inspection
The BIA must conduct a site inspection to determine the condition of the land and any unauthorized uses. The BIA should photograph the area, and initiate a trespass investigation if any unauthorized uses are discovered.
3-FD-b.12 – Request an Appraisal or Valuation of Subject Property
The BIA requests an appraisal from the Office of Appraisal Services (OAS) after receiving the survey. The appraisal together with the severance damages determine the minimum consideration required for use of the land. Consideration for the ROW includes the following types of compensation:
- Fair Market value for use of the land;
- Severance damages for separating the normal land use pattern by granting a ROW; and
- Damages caused by the survey or the ROW.
3-FD-b.13 to 3-FD-b.14 – Determine Actions Necessary to Ensure Compliance with NEPA, the NHPA, and the ESA; Site Evaluation
The BIA consults with its regional environmental staff and archaeologist to ensure compliance with the National Environmental Policy Act (NEPA), section 106 of the National Historic Preservation Act (NHPA) and the Endangered Species Act (ESA).
The BIA must perform a NEPA review in conjunction with the ROW approval process. NEPA requires federal agencies to consider the potential environmental consequences of their proposed actions and any reasonable alternatives before undertaking a major federal action. Approval of a ROW over Indian land is considered a major federal action. An Environmental Impact Statement (EIS) is required when a major federal action significantly affects the quality of the human environment. See 40 CFR 1502.3. If the effects of the action are not significant an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) may be sufficient. In some cases, a Categorical Exclusion may apply, in which case no consultation is necessary.
Section 106 of the NHPA requires the BIA consult with the State Historic Preservation Officer (SHPO) and the Tribal Historic Preservation Officer (THPO) before a federal undertaking. The process is designed to require federal agencies to consider the effects of their undertakings on cultural resources. Both the SHPO and THPO should be consulted before the ROW is approved.
Section 7(a)(2) of the ESA states that each Federal agency shall, in consultation with the Secretary, insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. To fulfill this requirement, the BIA must consult with the Fish and Wildlife Service (FWS) before approving the ROW.
In addition, the developer should conduct a site evaluation to determine what additional regulatory requirements must be addressed. For example, the developer may need to obtain a NPDES permit in order to comply with the Clean Water Act (CWA). For more information regarding the site evaluation process, see:
3-FD-b.15 – Consent for Permission to Survey
25 U.S.C. 324 requires tribes or individual Indian landowners to consent in writing before a ROW that crosses their land can be issued, with limited exceptions. See also 25 CFR 169.3. The developer should provide the owners with the Consent of Owners to Grant Right-of-Way form, which can be found in the Procedural Handbook for Grants of Easement for Right-of-Way on Indian Lands. The consent should include the minimum consideration for use of the land established by the appraisal or valuation. In cases where the consent to survey included consent for the ROW, a second consent will not be necessary.
3-FD-b.16 – Application for Grant of Easement for ROW
The developer must submit a written ROW application in duplicate to the BIA. The application must list the statute or statutes that it is filed under. In addition, the developer should submit the application with the following:
- Written consent of the landowners;
- Satisfactory evidence of good faith and financial responsibility of the developer;
- Appraisal to determine damages;
- A deposit equal to the total estimated consideration and damages, which includes consideration for the ROW, severance damages, damages caused during the survey, and estimated damages to result from construction, less any deposit previously made. The amount deposited must always be equal to or greater than the consideration for the ROW specified in the landowner consent;
- State certified copy of corporate charter or articles of incorporation;
- If the developer is an unincorporated partnership or association, the required documentation includes a certified copy of the Articles of Partnership or Association, or each member of the partnership or association must sign that there are no Articles of Partnership or Association;
- Certified Copy of the Corporate Resolution or By-Laws authorizing the filing of the application;
- State certification that the developer is authorized to do business in the state where the land is located;
- Map of definite location. (Survey map and field notes); and
- A tribal resolution submitted by the tribe’s federally recognized governing body and signed by duly authorized tribal officers, is required if tribal land is involved
See the Procedural Handbook for Grants of Easement for Right-of-Way on Indian Lands; 25 CFR 169.5. The application is attached to the handbook as Attachment 1. If the developer has already filed the above information, a reference to the date and place of filing is sufficient. In addition, the application must be accompanied by a stipulation executed by the developer, agreeing to:
- Construct and maintain the right-of-way in a workmanlike manner;
- Pay promptly all damages and compensation, in addition to the deposit made pursuant to 25 CFR 169.4, determined by the BIA to be due the landowners and authorized users and occupants of the land on account of the survey, granting, construction and maintenance of the right-of-way;
- Indemnify the landowners and authorized users and occupants against any liability for loss of life, personal injury and property damage arising from the construction, maintenance, occupancy or use of the lands by the applicant, his employees, contractors and their employees, or subcontractors and their employees;
- Restore the lands as nearly as may be possible to their original condition upon the completion of construction to the extent compatible with the purpose for which the right-of-way was granted;
- Clear and keep clear the lands within the right-of-way to the extent compatible with the purpose of the right-of-way; and to dispose of all vegetative and other material cut, uprooted, or otherwise accumulated during the construction and maintenance of the project;
- Take soil and resource conservation and protection measures, including weed control, on the land covered by the right-of-way;
- Do everything reasonably within its power to prevent and suppress fires on or near the lands to be occupied under the right-of-way;
- Build and repair such roads, fences, and trails as may be destroyed or injured by construction work and to build and maintain necessary and suitable crossings for all roads and trails that intersect the works constructed, maintained, or operated under the right-of-way;
- Upon revocation or termination of the right-of-way, the developer shall, so far as is reasonably possible, restore the land to its original condition;
- At all times keep the BIA informed of its address, and in case of corporations, of the address of its principal place of business and of the names and addresses of its principal officers;
- Not interfere with the use of the lands by or under the authority of the landowners for any purpose not inconsistent with the primary purpose for which the right-of-way is granted.
See 25 CFR 169.5.
3-FD-b.17 to 3-FD-b.20 – Application for Grant of Easement for Right-of-Way; Review and Complete the ROW Checklist; Findings and Recommendation for Decision; Letter of Decision
Once the BIA has received the completed application, it may begin preparing the Grant of Easement for Right-of-Way. Before the grant can be issued, however, the BIA must prepare and complete documentation, including the Right-of-Way checklist (Attachment 15 to the Procedural Handbook for Grants of Easement for Right-of-Way on Indian Lands, the Findings and Recommendation for Decision and the Letter of Decision.
The Findings and Recommendation for Decision provides the background for the BIA to approve or disapprove the ROW application. It includes a thorough investigation of all aspects of the property, ownership, and potential conflicts with statutes, laws and regulations. It should also include consideration and discussion of the best interests of the owners and the conservation and protection of the trust asset. See the Procedural Handbook for Grants of Easement for Right-of-Way on Indian Lands, page 2. The Findings and Recommendation for Decision should address all the criteria and background that was used to formulate the decision, including the TSR, environmental documents, surveys, appraisals, consent, unique provisions, and stipulations. It should be prepared only if the review of the application favors ROW approval. Once the Findings and Recommendation for Decision is complete, it is signed and dated.
After the Findings and Recommendation for Decision is signed, the BIA prepares a Letter of Decision. The letter is addressed to the parties and explains the BIA’s decision and the criteria that were used in the formulation of the recommendation. The letter must include information regarding the parties’ right to appeal the decision under 25 CFR 2.
3-FD-b.21 to 3-FD-b.22 – Has the Right-of-Way Been Approved?; Appeal BIA Decision
3-FD-b.23 – Collect Compensation from the Developer on Behalf of the Landowners
The developer must deposit the total estimated compensation and damages with the Office of the Special Trustee (OST) (although the Realty Office’s Collections Officer will initially receive the checks). The compensation should include “consideration for the right-of-way, severance damages, damages caused during the survey, and estimated damages to result from construction less any deposit previously made under 25 CFR 169.4.” See 25 CFR 169.14. The BIA may require an increase in compensation during the application process if the amount deposited is inadequate.
The compensation is deposited into a special account. The consideration for the ROW is disbursed when the ROW is granted, while amounts deposited to cover damages are disbursed as damage is sustained. Any part of the compensation that is not disbursed will be refunded to the developer once the affidavit of completion of construction is filed.
3-FD-b.24 to 3-FD-b.26 – Approve Grant of Easement for ROW; Right-of-Way Grant; Record the Grant of Easement for ROW
Once the developer has deposited the compensation with the OST, the approving BIA official signs the grant and the ROW is issued. The grant must incorporate all of the conditions and stipulations found in 25 CFR 169.3. A copy of the grant is delivered to the developer, and once received, construction may begin. See 25 CFR 169.15.
25 CFR 169.27 contains specific requirements for transmission ROWs on Indian land. Transmission ROWs may not exceed a term of 50 years, and ROWs for power lines may not exceed a width of 200 feet on each side of the center line. The developer must bear the reasonable cost of preventing inductive interference with radio, telephone or communication facilities. In addition, 25 CFR 169.27(f) contains a list of additional stipulations that must be agreed to if the transmission line is over 66 kV. Lastly, 25 CFR 169.27(g) allows developers to obtain ROWs for appurtenant facilities.
If the location of the ROW must be changed, the BIA cancels the original ROW and processes a revised ROW or modifies the original grant and references the original LTRO document number on the modification. Revised grants are subject to consent, approval, and ascertainment of damages. The revised grant must be recorded with the LTRO. See the Procedural Handbook for Grants of Easement for Right-of-Way on Indian Lands.
After the grant has been issued, the BIA records the grant and accompanying documents with the LTRO. See 25 CFR 169.15.
3-FD-b.27 – Conduct a Field Inspection of the ROW
The BIA conducts a field inspection before the Affidavit of Completion is filed to determine if any further damages have occurred to the land and if the developer is in compliance with the conditions and stipulations of the grant. If further damages are discovered, the BIA may assess additional damages which must be paid prior to the recordation of the Affidavit of Completion with the LTRO.
3-FD-b.28 – Affidavit of Completion
25 CFR 169.16 requires the developer to submit an Affidavit of Completion upon completion of the project. The affidavit must be executed by the engineer, certified by the developer, and recorded with the LTOR.
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