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BIA announces tribal energy resource regulations
Tuesday, August 22, 2006

Tribes will be able to take greater control of their energy resources under new regulations announced by the Bureau of Indian Affairs on Monday.

The National Energy Policy Act of 2005 authorized a voluntary program to speed up development on Indian lands. Participating tribes can submit resource plans to the Interior Department in order to gain quick approval of business deals, leases, rights-of-way and other types of energy agreements.

Currently, each individual agreement must be reviewed by the department. A federally-approved tribal energy resource agreement, or TERA, will enable tribes to skip that process, but only after following an application process that takes at least one year to complete.

"To foster economic development within Indian country and to promote energy self-sufficiency by tribes, I am delighted to make public proposed regulations for tribal energy resource agreements," said Jim Cason, the associate deputy secretary at Interior.

A Federal Register notice published yesterday outlines the proposal. To submit a TERA, tribes will have to detail their experience in handling energy matters and their procedures for dealing with energy agreements.

Within 30 days, the BIA must determine whether the application is complete. If so, the agency has 270 days to approve or disapprove a TERA.

If the application isn't complete, the tribe will be given up to 45 days following a consultation meeting with the BIA to submit a final proposal. The 270-day period will be triggered if the tribe chooses to continue the process.

In either case, the 270-day review period can be extended with the tribe's consent or if the BIA determines more time is needed. The TERA will be open to public comments during this time, according to the proposed regulations.

The schedule means a tribe must wait up to one year before a TERA becomes final.

Even if the TERA is approved, the BIA retains the authority to conduct periodic reviews of the tribe's energy development. For the first three years, the BIA must conduct an annual review. After three years, the reviews can be conducted every two years.

Interested parties may also petition the tribe, or the BIA, to review the tribe's compliance with the TERA. Interested parties could include tribal members and other people affected by energy development but they must first seek review through the tribe before turning to the BIA.

If the BIA determines the tribe is not in compliance with the TERA, the BIA has the ability to order the tribe to take corrective steps or to halt energy development.

Comments on the proposed rules are being accepted until September 20, 2006. The notice does not say when they will be finalized. Comments can be submitted in writing, via fax or e-mail or through regulations.gov.

The rules come amid another Indian energy initiative -- a controversial study of energy rights-of-way on tribal lands. Section 1813 of the National Energy Policy Act authorized the study at the behest of energy companies who claim tribes are demanding exorbitant amounts for the use of their land.

Comments on the rights-of-way draft are being accepted until September 1, 2006.

Federal Register Notice:
TEXT | PDF

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

Relevant Links:
Council of Energy Resource Tribes - http://www.certredearth.com
Energy Policy Act Section 1813 - http://1813.anl.gov
Department of Energy - http://www.energy.gov

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