Railroad tracks running through the Swinomish Reservation in Washington. Photo from Swinomish Tribe
Long-overdue changes to the rights-of-way process have once again been put on hold by the Bureau of Indian Affairs. After years of work, the BIA proposed a new rights-of-way rule in June 2014. A final rule was completed in December 2015 in order to "modernize" a process that hasn't seen changes in 30 years. "The new rule reflects modern requirements for rights-of-way and the need for faster timelines and a more transparent process for BIA approval," the agency said in a frequently asked questions. "This modernization will provide more certainty to tribes and the public, thereby promoting economic development and tribal self-determination." But putting the changes into place has not been simple due to concerns from multiple and sometimes competing interests, Jay Daniels of Roundhouse Talk wrote this week. So the BIA is once again extending the effective date of the rule to April 21 and also has extended a compliance deadline to August 16. "The BIA has determined that the extension of the effective date and compliance date without prior public notice and comment is in the public interest because it would allow more time for the public to comply with the rule," acting assistant secretary Larry Roberts wrote in a notice that was published in the Federal Register on Monday. The compliance deadline affects companies, utilities, lease holders and other entities with existing assignments on Indian land. The final rule requires them to provide the BIA with documentation in order to verify they can continue using the land, according to the FAQ. In the event an existing right-of-way is silent on assignments, a party must still follow the final rule' requirement for "obtaining landowner consent and BIA approval" for any new assignments, the FAQ states. Historically, rights-of-way have generated significant interest among the energy industry. A decade ago, a huge political controversy involving just one tribe prompted Congress to authorize a study on the use of tribal lands. The final report urged Congress to respect tribal sovereignty and stay out of right-of-way disputes unless they pose a significant impact on the energy supply. Federal Register Notices:
Rights-of-Way on Indian Land (March 21, 2016)
Rights-of-Way on Indian Land (December 21, 2015)
Rights-of-Way on Indian Land (November 19, 2015)
Rights-of-Way on Indian Land (November 4, 2014)
Rights-of-Way on Indian Land (October 8, 2014)
Rights-of-Way on Indian Land (August 13, 2014)
Rights-of-Way on Indian Land (June 17, 2014) Relevant Documents:
Energy Policy Act of 2005, Section 1813 Indian Land Rights-of-Way Study (May 2007)
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