Rights-of-Way on Indian Land, 72491-72549 [2015-28548]

Download as PDF Vol. 80 Thursday, No. 223 November 19, 2015 Part II Department of the Interior mstockstill on DSK4VPTVN1PROD with RULES2 Bureau of Indian Affairs 25 CFR Part 169 Rights-of-Way on Indian Land; Final Rule VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\19NOR2.SGM 19NOR2 72492 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 169 [156A2100DD/AAKC001030/ A0A501010.999900 253G] RIN 1076–AF20 Rights-of-Way on Indian Land Bureau of Indian Affairs, Interior. ACTION: Final rule. AGENCY: This final rule comprehensively updates and streamlines the process for obtaining Bureau of Indian Affairs (BIA) grants of rights-of-way on Indian land, while supporting tribal self-determination and self-governance. This final rule further implements the policy decisions and approaches established in the leasing regulations, which BIA finalized in December 2012, by applying them to the rights-of-way context where applicable. The rule also applies to BIA land. DATES: This rule is effective on December 21, 2015. FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action, (202) 273–4680; elizabeth.appel@bia.gov. SUPPLEMENTARY INFORMATION: SUMMARY: mstockstill on DSK4VPTVN1PROD with RULES2 I. Executive Summary of Rule The Department of the Interior (Department) published a proposed rule in the Federal Register to comprehensively update and streamline the process for obtaining BIA grants of rights-of-way on Indian land (individually owned Indian land and/or tribal land) and BIA land (tracts owned and administered by BIA) on June 17, 2014 (79 FR 34455) with a comment deadline of August 18, 2014. The Department then extended the comment deadline to October 2, 2014, then to November 3, 2014, and finally to November 28, 2014. See 79 FR 47402, 60794, and 65360. The current regulations were promulgated in 1968, and last updated in 1980. In December 2012, the Department issued final regulations comprehensively reforming residential, business, and wind and solar leasing on Indian land and streamlining the leasing process. Given the supportive response to the leasing regulatory revisions, we are updating 25 CFR part 169 (Rights-ofWay) to mirror those revisions to the extent applicable in the rights-of-way context and otherwise modernize requirements for obtaining a right-of- VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 way over or across Indian land and BIA land. The final rule reflects additional changes made in response to comments received during the public comment period. Highlights of this final rule include: • Simplifying requirements by relying on general statutory authority to grant rights-of-way and eliminating outdated requirements that apply to specific types of rights-of-way; • Clarifying processes for BIA review of right-of-way documents; • Streamlining the process for obtaining a right-of-way on Indian land by: Æ Eliminating the need to obtain BIA consent for surveying in preparation for applying for a right-of-way; Æ Establishing timelines for BIA review of rights-of-way requests; • Adding certainty to applicants by allowing BIA disapproval only where there is a stated compelling reason; • Providing Indian landowners with notice of actions affecting their land; • Deferring to individual Indian landowner decisions subject to an analysis of whether the decision is in their best interest; • Promoting tribal self-determination and self-governance by providing greater deference to Tribes on decisions affecting tribal land; • Clarifying tribal jurisdiction over lands subject to a right-of-way; and • Incorporating tribal land policies in processing a request for a right-of-way. The general approach to the final rule is to provide a uniform system for granting rights-of-way over Indian land by relying primarily on a single statutory authority, 25 U.S.C. 323–328, and to allow Indian landowners as much flexibility and control as possible over rights-of-way on their land. The rule requires that owners of a majority of the interests in a tract must consent to the right-of-way, in accordance with the statutory requirement in 25 U.S.C. 324, and specifies that tribes and individual Indian landowners may negotiate the terms of their consent, which ultimately become the terms of the grant. The rule clarifies that landowners may negotiate the terms to ensure the right-of-way is best suited to their needs. Landowners currently have this option, but are often presented with a ‘‘take-it-or-leave-it’’ offer by the potential grantee, and fail to negotiate. To provide efficiencies in standardization, the Department will develop a template grant form with placeholders for conditions and restrictions agreed to by landowners. The rule also affords landowners as much notice as possible regarding rights-of-way on their land, giving tribes PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 and individual Indian landowners actual notice (as opposed to constructive notice) of every right-ofway affecting their land, including any land in which the tribe owns a fractional interest. The rule addresses tribally owned land differently than individually owned land because, although the U.S. has a trust responsibility to all beneficial owners, it has a governmentto-government relationship with tribes and seeks to promote tribal selfgovernance. The final rule also provides tribes with as much deference as possible, within the bounds of the Department’s trust responsibilities, to determine which rights-of-way to grant, for how much compensation, and with identified enforcement provisions. The rule also provides that the BIA will defer to individual Indian landowners in their determinations, to the extent it is possible to coordinate with multiple individual Indian landowners. Consistent with 25 U.S.C. 325, the general trust relationship between the United States and the Indian tribes and individual Indians, and deference to tribal sovereignty, the final rule requires that the compensation granted to Indian landowners is just. The final rule does not establish any ceiling on compensation; to do so would unduly restrict landowners’ ability to get the maximum compensation for their land interest. The Department’s role is to ensure that the compensation is ‘‘just’’ for the Indian landowners. Together, these revisions modernize the rights-of-way approval process while better supporting Tribal selfdetermination. This rule also updates the regulations to be in a question-andanswer format, in compliance with ‘‘plain language’’ requirements. II. Response to Comments The Department published a proposed rule with the above revisions on June 17, 2014. See 79 FR 34455. The Department extended the initial public comment deadline of August 18, 2014 to October 2, 2014, then November 3, 2014, and finally to November 28, 2014. See 79 FR 47402 (August 13, 2014), 79 FR 60794 (October 8, 2014); and 79 FR 65360 (November 4, 2014). We received 176 written comment submissions prior to the final deadline of November 28, 2014. Of these, 70 were from Indian tribes, 19 were from tribal associations and tribal members, 7 were from State government entities, and 5 were from county or city government entities. These submissions also included significant input from the energy sector, including 15 from electric cooperatives, and 25 from gas and oil companies and E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations associations, pipeline companies, and power and water utilities combined. We also received 3 written submissions from telecommunications companies and 2 from railroad companies. In addition, we reviewed comments at tribal consultation sessions held in Bismarck, North Dakota; Phoenix, Arizona; Atlanta, Georgia; and by teleconference. The following is a summary of the substantive comments we received and our responses. The designation ‘‘PR’’ refers to the section from the proposed rule; the designation ‘‘FR’’ refers to the designation in the final rule. mstockstill on DSK4VPTVN1PROD with RULES2 Table of Contents for Response to Comments A. General B. Subpart A—General Provisions 1. Purpose of Regulations (PR 169.001) 2. Definitions (PR 169.002) & Applicability (PR 169.003(a)) 3. Life Estates (PR 169.003(b)/FR 169.109, FR 169.112, FR 169.121, FR 169.122, FR 169.415) a. Life Estates—Protection of Land b. Life Estates—Consent c. Termination of Life Estates d. Life Estates—Other Comments 4. When a Right-of-Way Is Needed (PR 169.004) 5. Types of Uses for Rights-of-Way (PR 169.005) 6. Applicability to Existing Rights-of-Way and Applications (PR 169.006/FR 169.7) 7. Administration of Regulations by Tribes on BIA’s Behalf (PR 169.007/FR 169.8) 8. Laws Applicable to Rights-of-Way Approved Under These Regulations (PR 169.008/FR 169.9) a. State Jurisdiction/State Law b. Tribal Law c. Tribal Jurisdiction 9. Taxes Applicable to Rights-of-Way Approved Under These Regulations (PR 169.009/FR 169.11) 10. Notice of Rights-of-Way (PR 169.010/ FR 169.12) 11. Appeals of Right-of-Way Decisions (PR 169.011/FR 169.13) C. Subpart B—Obtaining Right of Way 1. Consent a. Consent To Survey b. ‘‘So Numerous’’ c. Non-Consenting Tribe (PR 169.107(d)) d. Who Is Authorized To Consent (PR 169.108/FR 169.108) 2. Compensation a. Compensation—Electric Cooperatives and Utilities b. Compensation/Fair Market Value for Rights-of-Way (PR 169.109/FR 169.110, PR 169.111/FR 169.112) c. Different Compensation Approaches for Tribal Land Than for Individually Owned Indian Land d. Valuation (PR 169.111/FR 169.114) e. Who Conducts Valuation f. Method of Valuation g. Alternative Compensation h. Compensation for Renewals 3. Payment (PR 169.112/FR 169.115) VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 4. Direct Pay (PR 169.113/FR 169.116) 5. Method of Payment (PR 169.114/FR 169.117) 6. Non-Monetary and Varying Types of Compensation (PR 169.115/FR 169.118) 7. Issuance of Invoices (PR 169.116/FR 169.119) 8. Compensation Reviews or Adjustments (PR 169.117/FR 169.111 and FR 169.113) 9. Other Payments Required (PR 169.118/ FR 169.120) 10. Condemnation 11. Process for Grant of Right-of-Way a. Deadlines for BIA Decisions b. Process for Granting Right-of-Way (PR 169.119/FR 169.123) c. BIA Decision To Grant a Right-of-Way (PR 169.120/FR 169.124) d. Contents of the Grant (PR 169.121/FR 169.125) e. Preference for Employment of Tribal Members 12. Process for Rights of Way Applications Within or Overlapping Existing Rights of Way, or ‘‘Piggybacking’’ (PR 169.123/FR 169.127, 169.128) 13. Location in Application and Grant Differ From Construction Location (PR 169.124/FR 169.129) 14. Bonding (PR 169.103/FR 169.103) Subpart C—Terms, Renewals, Amendments, Assignments, Mortgages 1. Term (Duration) 2. Holdovers 3. Renewals (PR 169.201–169.202/FR 169.202) 4. Multiple Renewals (PR 169.203/FR 169.203) 5. Amendments 6. Assignments 7. Mortgages Subpart D—Effectiveness 1. Appeal Rights 2. Compelling BIA Action (PR 169.304/FR 169.304) 3. Appeal Bond Subpart E—Compliance and Enforcement 1. Abandonment 2. Negotiated Remedies (PR 169.403/FR 169.403) 3. BIA Enforcement (PR 169.404–169.405/ FR 169.404–169.405) 4. Late Payment Charges (PR 169.407/FR 169.407) 5. Cancellation for Non-Use or Abandonment (PR 169.408/FR 169.408) 6. BIA Enforcement Against Holdovers (PR 169.410/FR 169.410) 7. Trespass (PR 169.412/FR 169.413) Subpart F—Service Line Agreements ((PR Subpart F (169.501–169.504)/Final Subpart B (169.51–169.57)) A. General Comment: Several commenters, such as the Northern Natural Gas Company, stated that the rule would have the opposite effect of streamlining the rightof-way process, creating a slower, less efficient, and ‘‘in many ways unfair’’ right-of-way process because they provide parties with the opportunity to negotiate with each other, which will slow the issuance of rights-of-way, particularly on individual Indian tracts. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 72493 One energy company commenter stated that the right-of-way process is burdensome and often takes years to complete before it can provide service to the customer, but that the proposed rule offers a middle ground that accommodates tribal consent and allows utilities to provide service to customers in a timely manner. At least one commenter stated that the rule bolsters tribal self-governance by allowing tribes to dictate the extent of rights-of-way. Response: Although negotiations between the parties may slow down the process of obtaining landowner consent by giving the parties time to negotiate, this clarification is necessary to promote Indian landowner control over their trust or restricted land, and allows ordinary market forces to work. To provide efficiencies in standardization, BIA will develop a template grant form that provides flexibility by incorporating conditions and restrictions agreed to by landowners. Comment: Several commented on the proposed rule’s statement that BIA will rely on the broad authority under the 1948 Act, rather than the limited authorities under specific statutes. Some commenters pointed out that Congress did not repeal, override, supersede, or alter the other statutes and that the specific statutory authorities and requirements are still applicable to the Department. One commenter stated that the 1948 Act was intended as ‘‘cleanup legislation’’ to address Indian land not already covered by the ‘‘hodge podge of statutes’’ and that the 1948 Act affirmed the earlier statutes by filling gaps in coverage by the other statutes. Several tribal commenters strongly supported consolidating approval of all rights-of-way in a single location under 25 U.S.C. 323–328, noting that the process of approving different types of rights-of-way under different authorities and standards was antiquated and increased the burden on tribes to manage rights-of-way. Response: The final rule consolidates approval of all types of rights-of-way across Indian land under one set of regulations, implementing the general statutory authority at 25 U.S.C. 323–328, just as was proposed. The Department is not attempting to repeal any limited authorities under specific statutes; rather, it is making the policy decision to review and approve rights-of-way under the 1948 Act (25 U.S.C. 323–328). The 1948 Act offers maximum flexibility in rights-of-way, whereas the limited authorities under specific statutes impose various non-uniform restrictions. Legislative history indicates that Congress intended a transition from grants under the specific statutory E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72494 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations provisions to a uniform system based on 25 U.S.C. 323–328. See Senate Report No. 823 (80th Congress, 2d session) (Jan. 14, 1948), p. 4. The intent of Congress in enacting the broader 1948 statute, while leaving the others in place, was to afford tribes and the Department a choice and the Department does not exceed its authority by enacting regulations choosing one statutory scheme over the other. Blackfeet Indian Tribe v. Montana Power Co., 838 F.2d 1055, 1059 (9th Cir. Mont. 1988). The rule also lists the Indian Land Consolidation Act (ILCA), as amended by the American Indian Probate Reform Act, 25 U.S.C. 2201 et seq., as statutory authority because the rule relies on this statute as supplemental authority. Given the intent of Congress in the 1948 Act to facilitate right-of-way transactions, and the intent behind ILCA not to disturb specific standards for the percentage of ownership interest that must approve an agreement, we continue to apply the percentage requirements of the 1948 Act (i.e., consent of a majority of interests) rather than the ‘‘sliding scale’’ consent requirements of 25 U.S.C. 2218 (which may require consent of owners of more than a majority interest, for example where there are five or fewer owners of the tract). See Senate Report No. 823 (80th Congress, 2d session) (Jan. 14, 1948), p. 4; 25 U.S.C. 2218(f). Comment: A commenter suggested including in the final rule the industryspecific standards and guidelines for oil and gas pipelines that have been in place for decades, at current section 169.25(f). Response: The final rule provides landowners and grantees the freedom to negotiate for whatever standards and guidelines are appropriate for incorporating into the right-of-way grant. The final rule does not prevent a grantee from following the industryspecific guidelines and standards for oil and gas pipelines. Comment: Several commenters pointed to the U.S. Supreme Court decision in Strate as establishing that a grant of right-of-way essentially transforms Indian land into fee land. See Strate v. A–1 Contractors, 520 U.S. 438, 451–52 (1997). Specifically, these commenters stated that when a landowner grants a right-of-way, they reserve no right to the exclusive dominion or control over the right-ofway, and the land underlying the rightof-way is removed from tribal jurisdiction. These commenters asserted that the Strate holding means there can be no ‘‘seamless consistency’’ between the right-of-way regulations and leasing regulations, because this precedent VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 treats land subject to a right-of-way differently from leased land. Response: The circumstances in Strate are limited to the facts presented in that case. In Strate, neither the Federal Government nor the tribe expressly reserved jurisdiction over the land in the grant of the right-of-way. 520 U.S. at 455. This lack of reservation of a ‘‘gatekeeping right’’ led the Supreme Court to consider the right-of-way as aligned, for purposes of jurisdiction, with land alienated to non-Indians. Id. In these regulations, as grantor, the United States is preserving the tribes’ jurisdictions in all right-of-way grants issued under these regulations and is requiring that such grants expressly reserve tribal jurisdiction. Therefore, grants of rights-of-way under these regulations, consistent with the Court’s reasoning in Strate, would not be equivalent to fee land, but would retain the jurisdictional status of the underlying land. Comment: A few commenters stated that the regulation is a violation of the trust responsibility, claiming it subjects individual Indian landowners to an additional layer of bureaucracy without protections for Indian land rights. Response: The regulations retain protections for Indian land rights and promote landowners’ control over and notification of rights-of-way over and across their land. Landowners are free to negotiate for terms acceptable to them in negotiating with right-of-way applicants, subject to BIA review and approval, as required by statute. Comment: Several commenters, including both tribal and industry representatives, submitted petitions and comments calling on BIA to cancel the rulemaking and start over. Some suggested gathering a workgroup of tribes and allottees to rewrite the regulations. Several tribal commenters requested additional consultation and others requested additional opportunity for public input. A few tribal commenters supported the regulatory efforts to add transparency and certainty to the right-of-way process. Response: The Department complied with the applicable Administrative Procedure Act requirements for public notice and comment and consulted with tribes in updating these regulations, consistent with the Executive Orders and Departmental policy on consultation with tribes. Both public and tribal input on the proposed rule was robust, touching upon nearly every section of the proposed rule. The Department considered each comment in drafting the final rule and has incorporated suggested changes, balancing the Department’s trust PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 responsibility to landowners, support for tribal self-determination and selfgovernance, and promotion of productive use of Indian land. Comment: A tribe requested that the rule better reflect that the tribe has ongoing sovereign interests in right-ofway lands, through consenting to renewals, consenting to changes to the right-of-way document after it is granted, and investigating activities and conditions on the land and its improvements to determine compliance with tribal laws or with the terms and conditions of the right-of-way document. Response: The final rule includes a new section FR 169.010 to clarify that the grant of a right-of-way has no effect on tribal jurisdiction. In response to this comment, the final rule also includes a provision (FR 169.402(b)) recognizing the right of the tribe to investigate compliance with the grant, and imposes other tribal approval and notification requirements throughout the right-ofway process. B. Subpart A—General Provisions 1. Purpose of Regulations (PR 169.001) Comment: We received suggestions for several line edits to PR 169.001. One commenter requested we clarify that the rules govern how BIA will consider a request for a right-of-way, and another suggested we add a statement regarding the applicability of tribal law. Another commenter requested that PR 169.001(d) be clarified to state that the special acts of Congress authorizing rights-of-way without BIA’s approval are only those specifically authorizing rights-of-way across tribal land, to preclude the assertion of a right under general Federal statutes to obtain or condemn a right-of-way without BIA approval. Response: We incorporated these suggestions. Comment: One commenter suggested adding a separate subsection on the ‘‘interplay and application of tribal law and policy.’’ Response: A separate subsection on tribal law is unnecessary because other sections of the rule address the applicability of tribal law; however, the final rule adds a sentence to § 169.001(a) to clarify that the regulation is intended to support tribal self-determination and self-governance by acknowledging and incorporating tribal law and policies in processing requests for rights-of-way across tribal lands. Comment: One tribal commenter stated that the proposed rule appeared to grant the Secretary authority to grant rights-of-way under the Federal Power Act without the tribe’s consent. This E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations commenter stated that the rule should clarify whether it applies to Federal Power Act power lines and apply only to those Federal power projects that produce electricity from hydroelectric generators. Another commenter stated that the regulations should cover rightsof-way for Federal Power Act transmission lines. Response: The proposed and final rules both include the same language as the current rule on the Federal Power Act. This is governed by statute, and the rule does not affect it. The regulations do not cover rights-of-way for Federal Power Act transmission lines, but do cover other transmission lines. mstockstill on DSK4VPTVN1PROD with RULES2 2. Definitions (PR 169.002) & Applicability (PR 169.003(a)) Comment—Several definitions’ reference to ‘‘surface estate’’: Several commenters suggested that definitions such as ‘‘Government land, ‘‘Indian land,’’ ‘‘individually owned Indian land,’’ and ‘‘tribal land’’ should include the subsurface estate, as well as the surface estate. Response: The definitions refer to the surface estate only because these regulations address only the surface estate and BIA distinguishes only between the surface estate and the mineral estate. The surface estate includes everything other than mineral estate, such that any buried lines or other infrastructure affect the surface estate and require a right-of-way. As such, the surface estate includes what some of the commenters are calling the ‘‘subsurface estate,’’ which includes the soil and any other non-mineral material below the surface. To address these comments, the final rule includes an introductory sentence in PR 169.002, clarifying that these definitions apply only for the purposes of rights-of-way regulations. Comment—‘‘Abandonment’’: A few commenters supported the definition of the term ‘‘abandonment’’ as helpful to distinguish relinquishment of a right-ofway through non-use versus affirmative relinquishment. One commenter asked whether the grantee must file a document to affirmatively relinquish the right-of-way. Another commenter suggested criteria for ‘‘abandonment in fact’’ to establish when the grantee relinquished the right-of-way without a formal declaration of relinquishment. A few commenters suggested that the definition be expanded to include not just affirmative relinquishment by the grantee, but to also include an act that shows the grantee gave up its rights and does not intend to return to exercise the rights. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Response: The proposed rule and final rule, at § 169.408, provide that enforcement may occur for ‘‘non-use,’’ which is what the commenter calls ‘‘abandonment in fact,’’ and establish the criteria for the non-use. The final rule expands the definition of ‘‘abandonment’’ as requested to include acts by the grantee to allow BIA to imply abandonment based on an analysis of the circumstances. See FR 169.2. To affirmatively relinquish a right-of-way, the grantee need not necessarily file a document. Because the definition cannot enumerate all of the ways in which a grantee could communicate relinquishment, BIA will determine on a case-by-case basis whether affirmative relinquishment has occurred. Comment—‘‘BIA’’: One commenter suggested defining ‘‘BIA’’ to include the United States generally, to address an issue with an interagency agreement being recorded. Some commenters expressed confusion about defining ‘‘BIA’’ to include tribes that contract or compact to carry out BIA services, saying that it would appear to be an unlawful delegation of authority. Response: The final rule retains the proposed definition of ‘‘BIA.’’ The definition of ‘‘trust or restricted status’’ already establishes that the United States rather than BIA specifically holds title in trust or imposes restricted status. Tribes are statutorily authorized to carry out BIA realty services that are not inherently Federal functions, as long as certain procedures are followed. Comment—‘‘Cancellation’’: A few tribal commenters requested definitions for ‘‘cancellation’’ and ‘‘termination.’’ Response: The final rule adds these definitions. Comment—‘‘Compensation’’ and ‘‘Market Value’’: A few commenters suggested revising definitions for ‘‘compensation’’ and ‘‘market value’’ to impose a requirement that the Secretary determine the amount is ‘‘just’’ under 25 U.S.C. 325, regardless of whether the amount meets fair market value. Response: The final rule does not incorporate these suggested changes because detailed provisions for determining compensation are addressed elsewhere in the regulations. Comment—‘‘Consent’’: Several commenters requested a definition for ‘‘consent.’’ Response: The final rule adds a definition for this term that is consistent with the definition in the leasing regulations (25 CFR part 162). Comment—‘‘Constructive Notice’’ and ‘‘Notice’’: A few commenters requested a definition of ‘‘notice, notify and notification’’ to mean informing the PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 72495 parties by certified or registered mail or commercial mail service that tracks delivery or email. Other commenters suggested adding more specifications for constructive notice on how long and where the notice will be posted. Response: With regard to notice generally, and the allowable forms of notice, PR 169.010 and FR 169.12 address these issues. See the discussion of comments on that section, below, for information about the forms of notice. Constructive notice is required only for notification to landowners of certain enforcement actions BIA takes against the grantee, so no definition has been added. Comment—‘‘Easement’’: One commenter stated that the definition of ‘‘easement’’ should reflect that title remains vested in the owner. Response: The final rule clarifies that an easement is simply a right to use, but that title remains vested with the owner. Comment—‘‘Eminent domain’’: One commenter requested a definition for ‘‘eminent domain.’’ Response: The final rule does not include the term ‘‘eminent domain’’ or address eminent domain, so this definition was not added. Statutory authority exists in 25 U.S.C. 357 for condemnation under certain circumstances, but these regulations do not address or implement that authority. Comment—‘‘Fractional interest’’: One commenter suggested a revision to exclude application to tribal land. Response: No change to the rule is necessary. Tribal land includes land in which the tribe and others own fractional interests. Comment—‘‘Government land’’: Some commenters suggested narrowing the definition to refer to land administered by the BIA, rather than all Federal Government lands because other Federal agencies are responsible for granting rights-of-of way on lands under their statutory and regulatory jurisdictions. Response: The final rule changes the term from ‘‘Government land’’ to ‘‘BIA land’’ and specifies that the BIA owns and administers the land. Comment—‘‘Grantee’’: One commenter suggested including assignees in the definition of ‘‘grantee.’’ Response: The final rule clarifies that once an assignment becomes effective, the assignee becomes the grantee. Comment—‘‘Immediate family’’: A commenter stated that the definition of ‘‘immediate family’’ should track the definition in 25 CFR part 152. Response: The final rule’s definition of ‘‘immediate family’’ tracks the definition in the leasing regulations, and consistent with our support for tribal E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72496 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations self-determination and self-governance, defers to the definition of ‘‘immediate family’’ under applicable tribal law. Comment—‘‘Indian land’’: A few commenters stated that the definition should better track the definition of ‘‘tribal land’’ to address that Indian land may be owned by more than one tribe, more than one individual Indian, or a combination of both. One commenter requested clarification that ‘‘Indian land’’ does not include anything beyond individually owned Indian land and tribal land. Several commenters stated that ‘‘trust and restricted land’’ should be used instead, to eliminate the need to cross-reference multiple other defined terms (i.e., ‘‘tribal land,’’ ‘‘individually owned Indian land,’’ ‘‘trust or restricted status’’). One commenter stated that the definition appeared to also apply to land owned in fee. Response: The final rule incorporates the clarification that the land may be owned by multiple landowners and that ‘‘Indian land’’ includes only individually owned Indian land and tribal land. The final rule does not make any revision in response to the comment that the definition appears to apply to fee land, because the definition already states that it includes only land held in trust or restricted status. Comment—‘‘Indian landowner’’: A commenter stated that the definition should clarify that ‘‘an interest in Indian land’’ means a trust or restricted interest. One commenter suggested excluding from the definition anyone who has only a right from the tribe to use land and the tribe has reserved the right to consent to easements or rightsof-way. Response: The final rule does not revise the definition to refer to trust or restricted interests because it refers to ‘‘Indian land’’ which is defined to mean trust or restricted interests. The final rule does not exclude tribal land assignments from the definition of ‘‘Indian landowner,’’ but in a case in which a person has only a tribal land assignment, the tribe would still be considered the ‘‘Indian landowner’’ under this definition. Comment—‘‘Indian tribe’’: One commenter suggested that the definition of ‘‘Indian tribe’’ should include only tribes organized under the Indian Reorganization Act (IRA), in accordance with a strict reading of the statutory authority for rights-of-way on Indian land. This change would require the consent only of IRA tribes for any rightsof-way and not for non-IRA tribes. Response: The final rule does not narrow the definition of ‘‘Indian tribe’’ as suggested because BIA has VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 consistently required consent from all tribes, in furtherance of tribal selfdetermination. Comment—‘‘Indian’’: Several commented on this definition. Some questioned including individuals who are ‘‘eligible to become a member of any Indian tribe.’’ At least one commented that the statutory definition discriminates against co-owners of allotments outside of California. Response: As a result of the American Indian Probate Reform Act amendments to the Indian Land Consolidation Act, the definition of ‘‘Indian’’ includes those who are ‘‘eligible to become a member of any Indian tribe.’’ Comment—‘‘Individually owned Indian land’’: A commenter suggested this definition should exclude tribal land assignments. Another commenter suggested revising the definition to clarify that the tract may be owned by multiple individuals. One commenter asked whether a tract in which both a tribe and an individual own interests would be considered ‘‘individually owned Indian land’’ or ‘‘tribal land.’’ Response: The definition of individually owned Indian land does not include tribal land assignments; no change is necessary. The final rule clarifies that individually owned Indian land may be owned by multiple individuals, as suggested. A tract in which both a tribe and an individual own interests would be considered ‘‘tribal land’’ for the purposes of requirements applicable to tribal land and would be considered ‘‘individually owned Indian land’’ for the purposes of the interests owned by individuals. Comment—‘‘Legal Description’’: One commenter stated that the definition should not refer to a portion of the document. Response: BIA has deleted this definition in response to the comment because ‘‘legal description’’ is a generally understood term. Comment—‘‘Life estate’’: One commenter suggested adding a definition for ‘‘life estate.’’ Response: The final rule defines ‘‘life estate’’ consistent with the leasing regulations. Comment—‘‘Map of definite location’’: One commenter suggested adding that the boundaries of each rightof-way should be specified as precisely as possible. Others suggested additional requirements for the distance between the surveyed land and right-of-way and allowances for GPS and satellite technologies. Response: The proposed and final regulations at § 169.102(b)(1) refer to the statutory provisions governing maps of definite location, which are PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 implemented by the Department’s Manual of Surveying Instructions and other Departmental requirements. These require an accurate description of boundaries and impose distance requirements for references to public surveys, and allow for GPS and satellite technologies. Comment—‘‘Market value’’: A few commenters suggested using the term ‘‘fair market value’’ rather than ‘‘market value’’ to maintain consistency in terminology with the current regulations and because the term is more widely used in industry parlance. One commenter suggested adding that it should state that it is the most probable price the property would bring in a competitive and open market ‘‘under all conditions requisite to a fair sale.’’ Another suggested clarifying that the market value should be based on the use of the limited portion for the right-ofway, rather than sale of the land. Response: The final rule uses the term ‘‘fair market value’’ in lieu of the proposed ‘‘market value’’ in response to these comments. The final rule does not add ‘‘under all conditions requisite to a fair sale’’ because this concept is already captured in ‘‘competitive and open market.’’ The final rule does not add that the market value is based on the limited portion for the right-of-way because this is understood. Comment—‘‘Nonprofit rural utility’’: One commenter suggested adding a definition for this term to mean ‘‘a member-owned cooperative nonprofit corporation organized under State law for the primary purpose of supplying electric power and energy and promoting and extending the use of electricity in rural areas and Indian lands.’’ Response: The final rule adds a definition for ‘‘utility cooperatives’’ to include member-owned utility cooperatives. Later provisions of the rule provide for waivers of compensation requirements and bonding requirements for utility cooperatives and tribal utilities under certain conditions. Comment—‘‘Parties’’: A few commenters suggested a definition of ‘‘parties.’’ Response: The final rule does not include a definition for ‘‘parties’’ because it is clear from context where this term is used who it includes. Comment—‘‘Right-of-Way’’: A few commenters suggested edits to this definition to clarify that easements are a type of right-of-way. Other commenters suggested adding ‘‘in, over, under, through, on, or to’’ to capture all possible types of rights-of-way. Some commenters stated that a right-of-way E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations should reflect that they are transfers of real property interests to grantees; others stated that the right-of-way should reflect they are not transfers, and that title remains vested in the landowner. Some commenters suggested clarifying in the definition that rights-ofway do not include service lines. Response: The final rule clarifies that rights-of-way include easements and uses the statutory language ‘‘over and across’’ rather than ‘‘cross.’’ The final rule also establishes that right-of-way grants are not transfers of real property interests (see discussion below), but rather that the landowner retains title to the property. The final rule clarifies that rights-of-way do not include service lines. Comment—‘‘Service Lines’’: See the discussion of service lines, below. Comment—‘‘Secretary’’: A commenter suggested clarifying who is an ‘‘authorized representative’’ of the Secretary. Response: Authorized representatives are those acting within their scope of duties through delegated authority by the Secretary. Comment—‘‘Section 17 corporation’’: A commenter noted that this term is defined but not used in the regulation. Response: The final rule deletes this definition. Comment—‘‘Trespass’’: One commenter requested narrowing the definition of ‘‘trespass’’ to exclude unintentional instances of trespass and encompass only those instances of willful, purposeful, reckless, or negligent trespass. Another commenter suggested expanding the definition to include listed examples of trespass. The commenter also stated that trespass to airspace and subsoil should be included. Response: The final rule does not add any requirement for intent to trespass because the unauthorized occupancy is a trespass under Federal law regardless of intent (see discussion of trespass, below). The final rule does not list examples of trespass; examples listed by the commenter would meet the definition of ‘‘trespass’’ including, but not limited to, holdover occupancy without consent, affixing unauthorized improvements, adding uses or areas, entry without authorization. The definition does not specify trespasses to airspace and subsoil because these regulations address only the surface estate. Comment—‘‘Tribal authorization’’: One commenter requested further specification of when a tribal authorization is ‘‘duly adopted.’’ Another commenter suggested adding a VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 tribal government division to the definition. Response: The regulations do not add further specification of what constitutes a duly adopted tribal authorization because the procedures vary with each individual tribe. The definition of ‘‘tribal authorization’’ includes a document duly adopted by a tribal government division which reflect that the document is an ‘‘appropriate tribal document authorizing the specified action.’’ Comment—‘‘Tribal Land’’: A tribal commenter asked whether a tract is considered tribal land, even if fractional interests are owned by both the tribe and individual Indians. Another commenter suggested defining ‘‘tribal land’’ to include only land that is not individually owned. A commenter suggested limiting tribal land to those tracts in which the tribe holds a majority interest. Response: Under the proposed definition and final definition, a tract is considered ‘‘tribal land’’ if any interest, fractional or whole, is owned by the tribe. A tract in which both a tribe and individual Indians own fractional interest is considered tribal land for the purposes of regulations applicable to tribal land. If the tribe owns any interest in a tract, it is considered ‘‘tribal land’’ and the tribe’s consent for rights-of-way on the tract is required under 25 U.S.C. 323 and 324. Comment—‘‘Trust or restricted status’’: One commenter suggested revising the definition to reflect that individual tracts may be owned by a combination of both tribal and individual owners. Response: The final rule clarifies that land may be owned by a combination of both tribal and individual owners by changing ‘‘or’’ to ‘‘and/or.’’ Comment: New definition of ‘‘utility’’: One commenter suggested adding definitions distinguishing between ‘‘commercial’’ and ‘‘public’’ utilities, such that later provisions can provide more lenient requirements to public utilities. Response: The final rule defines ‘‘utility cooperatives’’ and ‘‘tribal utilities’’ because the regulations provide more lenient requirements for these categories of utilities. ‘‘Utility cooperatives’’ are defined to be those cooperatives that are member-owned, while ‘‘tribal utility’’ is defined to be those utilities that are tribally owned and controlled (i.e., in which tribes own at least 51 percent, receive a majority of the earnings, and control the management and daily operations). The more lenient requirements (nominal compensation, no bonding PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 72497 requirements) are appropriate for utility cooperatives because cooperatives are established for the purpose of providing service to their members and benefiting their members rather than making a profit. The more lenient requirements are appropriate for tribal utilities, whether for profit or not for profit, because such utilities have a governmental interest in providing service to those within their jurisdictions. The final rule holds other not-for-profit and for-profit utilities to the standard requirements for compensation and bonding because an independent analysis of whether the right-of-way is in the best interest of the landowners is appropriate in those circumstances. Comment—Other definitions: A few commenters suggested defining terms such as ‘‘allotted land.’’ Response: The term ‘‘allotted land’’ is not defined because it is not used in the regulation. Comment: A few commenters had questions about or expressed confusion about PR 169.003(a), specifying that BIA will not condition its grant of a right-ofway on the applicant having obtained a right-of-way from the owners of any fee interests, and that BIA will not take any action on a right-of-way across fee, State or Federal land not under BIA’s jurisdiction. Response: BIA grants rights-of-way only with respect to trust or restricted interests and examines only the trust or restricted interests when determining whether the owners of the majority of the interests consent. It is the applicant’s responsibility to obtain the permission of the owners of the fee interests; BIA is not involved in that process. BIA will not condition its grant of a right-of-way on the applicant having obtained a right-of-way from the owners of any fee interests. The rule requires notice to and consent from owners of trust or restricted interests, as opposed to fee interests. The final definition of ‘‘BIA land’’ clarifies that land not under BIA’s jurisdiction is not included. 3. Life Estates (PR 169.003(b)/FR 169.109, FR 169.112, FR 169.121, FR 169.122, FR 169.415) Comment: A commenter stated that the provisions on life estates are ‘‘extremely confusing’’ and should be rewritten. Another commenter stated that the provisions on life estates should be in their own section, rather than as a part of § 169.3. Response: The final rule addresses these comments by redrafting life estate provisions and placing them in new, E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72498 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations separate sections addressing only life estates. Comment: One commenter asserted that the entire section should be deleted because it violates the rules of cotenancy. This commenter also stated that title vests in the remaindermen under a will as of the date of the death, title passes from the decedent to the remaindermen at that time, and the remaindermen take ownership subject to the life estate. This commenter stated that the estates are concurrent, and that the perspective that there is first a life estate and then a remainder is legally incorrect and would create a hole in the chain of title, rendering it unmarketable. The commenter further stated that the proposed provision stating that BIA will not join in a right-of-way granted by life tenants is an announcement that the Department intends to violate 25 U.S.C. 348, which requires Secretarial approval of all contracts affecting allotted land. Response: This comment is based on a provision in the proposed rule that would have allowed a life tenant to grant a right-of-way without consent of the remaindermen or approval of the BIA. That provision has been deleted in the final rule. Comment: Several commenters, including tribal commenters, stated that the life estate provisions should distinguish between Indian and nonIndian life tenants to provide protection to Indian life tenants. The commenters stated that the rule does not explain how BIA will balance the interests of an Indian life tenant and Indian remaindermen. One commenter stated that BIA owes a trust responsibility to everyone with an interest in trust property, including a life tenant. These commenters assert that the rule establishes that BIA will actively breach its trust responsibility to Indian life tenants. For example, the provision saying that BIA will not enforce or consent to a right-of-way where the life tenant holds all the trust or restricted interests in the tract, assumes the life tenant is non-Indian when, in fact, most are Indians to which BIA owes a trust responsibility. Response: The final rule does not distinguish between Indian and nonIndian life tenants because BIA’s trust responsibility is not based on whether someone is Indian, but rather stems from the interest in trust or restricted (Indian) land. BIA is responsible for enforcing the terms of the right-of-way only on behalf of the remaindermen because BIA’s trust responsibility is to the remaindermen because they are the beneficial owners of the Indian land, rather than the life tenants. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 a. Life Estates—Protection of Land Comment: A tribal commenter stated that the rule should clarify whether BIA owes a trust responsibility to the coowners of the holder of the life estate, because it states that it does not owe rights to other parties but leaves this category of parties vague. Response: Where the life estate covers only a fractional interest in the property, the other co-owners are owners of the trust or restricted property to which BIA owes any trust responsibility. Comment: A tribal commenter stated that BIA approval should be required regardless of whether the life estate is over the entire parcel of Indian land or not, because BIA’s approval is required to protect the remainder interests and ensure no permanent injury to the Indian land, in either case. Response: The final rule requires BIA approval regardless of whether the life estate covers the entire parcel of Indian land or not. Comment: A tribal commenter stated that provisions saying that the BIA ‘‘may monitor the use of the land’’ should instead provide that the BIA ‘‘shall monitor the use of the land.’’ Response: The final rule continues to provide that BIA ‘‘may’’ monitor use of the land to account for any situations in which BIA determines monitoring is not necessary. Comment: A tribal commenter stated that the rule does not provide for a process for the landowner to appeal to BIA for intervention as trustee to prevent ‘‘permanent injury’’ to the land that may occur through the life tenant granting the right-of-way. Another commenter stated that the term ‘‘permanent injury’’ should be explained, to avoid cases where a pipeline abandoned in place is considered a ‘‘permanent injury.’’ Response: Owners may contact BIA to express concerns regarding the potential for permanent injury either formally or informally. In order to maintain flexibility, the final rule does not establish a specific process for this communication. The determination of whether a ‘‘permanent injury’’ has occurred is made on a case-by-case basis. b. Life Estates—Consent Comment: A commenter requested clarification that the life tenant ‘‘consent’’ to, rather than ‘‘grant,’’ the right-of-way. Response: The final rule clarifies that the life tenant ‘‘consents’’ to the rightof-way. Comment: A few commenters requested clarification that consent is PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 required from the owners of a majority interest, rather than from a majority of the owners. Response: The final rule clarifies that consent is required from the owners of a majority interest. Comment: One commenter stated that the provisions are consistent with the Interior Board of Indian Appeals (IBIA) decision in Adakai v. Acting Navajo Regional Director, BIA, 56 IBIA 104 (2013), requiring a consent of the majority of the remaindermen, but recommended the intent be clarified by adding after the first sentence of paragraph (b): ‘‘Except as provided in clauses 1(v) and (3), we will not grant or approve a right-of-way for land subject to a life estate. A life tenant, however, may grant a right-of-way as provided in this paragraph (b).’’ Response: The final rule requires the consent of both the life tenants and remaindermen, in order to ensure protection of the Indian land for the remaindermen. Comment: A few commenters suggested, as a simpler approach, allowing the life tenant to consent for the full term of the right-of-way, regardless of the duration of the life estate or number of future, unknown remaindermen, and requiring the grantee to pay full compensation for the right-of-way to the life tenant. These commenters asserted that no consent of the remaindermen is required and that the life tenants should have the ability to consent and bind the remaindermen, although one commenter stated that this approach presents ‘‘enormous administrative hurdles’’ when a tract of land held by a life tenant is part of a right-of-way project encompassing other tracts where consent, monitoring, and enforcement are required. In contrast, a tribal commenter stated that the Indian landowner should be required to consent, regardless of whether there is a life estate on the land. One commenter stated that the IBIA’s previous determination that rights-of-way must be consented to by both life tenants and remaindermen was based on the silence in the current regulations, and asserted that the new regulations should allow life tenants to consent to issuance of a right-of-way that may exceed the duration of the life estate. Response: BIA may not, by regulation, allow a life tenant to grant an interest that is greater than what the life tenant holds (i.e., an interest for longer than the duration of the life tenant’s life); therefore, the life tenant may not consent to the full term of the right-ofway, and may consent only to the term of his or her life. The final rule simplifies the approach by requiring the E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations consent of the remaindermen as well, for the full term of the right-of-way. Comment: One commenter stated that the rule allows life tenants to encumber land with a right-of-way that may be permanent and impossible to undo. Response: The final rule requires the consent of remaindermen identifiable at the time of the application; with this consent, the right-of-way grant continues even when the life estate ends (assuming the overall term of the life estate has not expired). Comment: A tribal commenter requested clarification in paragraph (b)(2) as to whether the applicant must obtain the consent of a majority of the co-owners including or excluding the life tenant’s consent in the calculation. The commenter suggested that the life tenant’s consent should be included in the calculation. Response: The life tenant’s consent is required in addition to the consent of the owners of a majority of the remainder interests. Comment: A commenter stated that if the life tenant’s consent was not needed to meet the majority consent, then the right-of-way should not terminate upon the end of the life estate. Response: Because the final rule requires consent of both the life tenant and remaindermen, this comment is no longer applicable. mstockstill on DSK4VPTVN1PROD with RULES2 c. Termination of Life Estates Comment: Several commenters noted the administrative difficulties, uncertainties, and increased costs caused by a right-of-way ending when the life estate ends. Several commenters suggested providing that upon the end of the life estate, the right-of-way continues and the remaindermen receive compensation established for allottees in the original grant, but prorated for the remainder of the rightof-way term. Response: The final rule requires the consent of remaindermen identifiable at the time of the application; with this consent, the right-of-way grant continues even when the life estate ends (assuming the overall term of the life estate has not expired). The final rule addresses the allocation of compensation between the life tenant and remaindermen in § 169.121. Generally this section provides that if a will established the life estate, the terms of the will establishing the allocation will govern. If there is no will provision that controls the allocation, the life tenant and remaindermen may enter into an agreement regarding the allocation. Otherwise, the terms of 25 CFR part 179 apply. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Comment: A commenter noted that there may be instances in which the life tenant has rights to encumber the property beyond his or her life, such as when a landowner conveys the property to a third party but retains a life estate and the ability to encumber the property beyond his or her life. In that case, the granting instrument’s terms would control and the life tenant may consent to a term beyond his or her life. Response: The final rule covers the overwhelming majority of life estates. If such a situation arises, the BIA will address it on a case-by-case basis, using, if necessary the flexibility in 25 CFR 1.2 to waive the regulations in this Chapter. d. Life Estates—Other Comments Comment: A commenter expressed confusion that the rule requires direct payments to life tenants, but otherwise limits direct payments to landowners, and requested clarification on whether this is intended to apply where the life tenant is non-Indian. Other commenters stated that life tenants should have the option of having the funds deposited in their IIM accounts, if they have one, because otherwise the funds could be subject to levies or garnishment. Response: The final rule requires direct payment to life tenants regardless of whether they are Indian. Comment: A few commenters suggested stating ‘‘will or other conveyance document’’ or ‘‘legal instrument’’ creating the life estate because sometimes a deed creates a life estate. Response: No change is made to the final rule because a deed is considered a conveyance document. 4. When a Right-of-Way Is Needed (PR 169.004) Comment: A few tribal commenters requested clarification that a tribe owning all the interests in a tract need not obtain a right-of-way for that tract. Response: The proposed and final § 169.4(b)(1) state that an Indian landowner that owns 100 percent of the interests in a tract need not obtain a right-of-way grant. No clarification to the rule is necessary, as the definition of ‘‘Indian landowner’’ encompasses tribes. Comment: A tribal commenter requested clarification that an Indian tribe or tribally owned entity that does not own a majority of interests in the tract must obtain a right-of-way with consent of the owners of a majority interest for the tract. Response: The final rule incorporates this clarification. If the tribe already owns the majority of the interests, it need not obtain the consent of the other PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 72499 fractional owners, but it must notify them of the right-of-way. Comment: A few tribal commenters stated that if a tribe owns a separate legal entity, then the entity should not have to obtain a right-of-way across tribal land under the regulations. These commenters suggested adding an exemption for such legal entities or recognizing the authority of the tribe’s governing body to adopt a resolution or other appropriate enactment to allow the tribe and tribally owned and controlled entities to use tribal land without a BIA-approved right-of-way. Response: The final rule allows an entity that is wholly owned and operated by the tribe to use the tribe’s tribal land without BIA approval where the tribe submits a resolution authorizing the right-of-way and describing the land across which the right-of-way will cross. This submission is necessary for the Bureau to keep track of authorized users of the Indian land. The Bureau will maintain a copy of the resolution and description in our records. Comment: A tribal commenter requested more specificity as to what ‘‘an independent legal entity owned and operated by a tribe’’ is, noting that it has several enterprises and entities organized through different legal instruments and asking whether these entities must comply with part 169. Response: Whether an enterprise or entity qualifies as ‘‘an independent legal entity owned and operated by a tribe’’ will be evaluated on a case-by-case basis. Comment: One commenter requested adding tribally approved land use agreements, such as tribal land assignments, to the list of those exempted from the regulations. Another commenter requested clarification on what the term ‘‘land use agreements’’ includes. Response: The final rule clarifies at FR 169.4(b) that land use agreements that are exempted from these regulations include tribal land assignments. Such land use agreements may also include permits granted by the Indian landowner for a revocable, nonpossessory right of access for a very short term, for limited use of the land. Comment: A tribal commenter stated that, to encourage development, the rule should allow permitting for utility service to homesites without BIA approval. Response: Generally, a right-of-way or filing of a service line agreement would be required to provide utility service to homesites. Nevertheless, Indian landowners may grant permits to allow a revocable, non-possessory right of E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72500 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations access for a very short term, for limited use, where there will be no ground disturbance or risk of environmental damage. Examples include allowing a right of access for a cultural ceremony. BIA approval is not necessary for such permits and BIA will not administer or enforce permits on Indian land; the rule does not address permits because permits are appropriate only in very limited circumstances for a very limited term. Any use that requires more certainty in term (i.e., not unilaterally revocable by the landowner) or requires a longer term, as utility infrastructure would, requires a right-of-way or service line agreement or other authorization under § 169.4. BIA may grant permits for use of BIA land, and part 169 will apply to those permits as appropriate. See Section C for more on terms. Comment: Some tribal commenters expressed support for the proposed rule’s provision that the right-of-way regulations do not apply to other authorizations to cross Indian land, such as a federally approved lease. The commenter stated that this provision protects a tribe’s choice to use the leasing statutes for energy, telecommunication and transportation corridors. Response: The final rule retains these provisions. Comment: One commenter stated that the regulation should exempt anyone travelling on an established State or county road across Indian land from obtaining a right-of-way. Response: A person travelling across Indian land on a road is not obtaining a legal interest in the property, and therefore does not need a right-of-way grant. To the extent the commenter means to ask whether a State or county needs a right-of-way to place a road across Indian land, the road would require the transfer of a legal interest, thus requiring a right-of-way grant. Comment: Several tribal commenters noted that the provision regarding compliance with statute, judicial order, or common law, where access is allowed by such statute, judicial order, or common law, could be misinterpreted to allow for prescriptive easements. Another tribal commenter requested clarification that prescriptive easements or adverse possession through common law, or otherwise, are not permitted on trust land. Response: The final rule replaces ‘‘statute, judicial order, or common law’’ with ‘‘law’’ to address the commenter’s concern. No interest in trust land may be acquired by adverse possession. See Cohen’s Handbook on Federal Indian Law section 15.09[4], at 1604 (2012 ed.). Except as required for access to a VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 mineral estate or specific authorization from Congress, prescriptive easements are not available on trust land, because trust land generally cannot be divested. See e.g., Del Rio Drilling Programs v. United States, 35 Fed. Cl. 186 (1996) (mineral estate remains dominant, and a subsurface owner has a right of reasonable access to the minerals below). This is not specified in the final rule because it does not directly relate to rights-of-way. Comment: One commenter asked whether a right-of-way grant is required for general ingress and egress by a lessee. Response: A right-of-way grant is generally needed if an interest in the Indian land is being transferred. The leasing regulations provide that a lease may address access to the leased premises by roads or other infrastructure, and such roads and infrastructure must comply with 25 CFR part 169, unless otherwise stated in the lease. Roads and other infrastructure within the leased premises are covered by the lease. See 25 CFR 162.019. Comment: A commenter requested clarification on whether ‘‘as-built’’ rights-of-way to correct unauthorized uses of Indian lands could be issued without a land use agreement authorizing use of the Indian land. Response: The intent of the exemption for land use agreements is not to allow what would otherwise require BIA approval to bypass 25 CFR part 169 requirements by calling it a ‘‘land use agreement.’’ The intent is to allow for land use agreements such as those authorized by 25 CFR part 84. ‘‘As built’’ rights-of-way would be authorized under 25 CFR part 169. Comment: A tribal commenter suggested the regulations include a provision under which a tribe could elect to dedicate a portion of tribal land for the construction, operation, and maintenance of tribally owned public transportation facilities, such as roads, bridges, and highways, and record that dedication in the appropriate land title and records office. A few tribal commenters suggested adding a new section recognizing that tribes may dedicate their own trust or restricted lands for public transportation, without having to obtain rights-of-way. Response: These regulations do not affect a tribe’s ability to dedicate tribal land for certain uses but granting interests in Indian land to third parties would require a right-of-way. Comment: One commenter expressed concern that, by deleting the various types of rights-of-way listed in current § 169.23 (railroad station buildings, depots, machine shops, side tracks, PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 etc.), one could argue that such uses are no longer covered by the regulation. Response: The final rule covers all uses that fall within final § 169.5, whether listed or not. Comment: A commenter requested excluding ‘‘customary and traditional dirt roads’’ used to access homesites from the need to obtain a right-of-way grant. Response: Customary and traditional dirt roads to access homesites may be addressed in the homesite lease, rather than requiring a separate right-of-way grant. 5. Types of Uses for Rights-of-Way (PR 169.005) Comment: A commenter requested clarification of whether the provision in PR 169.005(a)(4) for ‘‘service roads and trails essential to any other right-of-way purpose’’ is intended to address access across only the same allotment or access across adjacent or nearby Indian land. Another commenter requested that ‘‘appurtenant to’’ replace ‘‘essential to’’ to avoid disputes over what types of service roads and trails are ‘‘essential.’’ Response: The question of whether a right-of-way is required for service roads and trails is required is determined on a case-by-case basis. The final rule replaces ‘‘essential to’’ with ‘‘appurtenant to’’ as requested by the commenter. Comment: Commenters requested additions to the list of rights-of-way types part 169 is intended to cover, including: oil and gas facilities such as well pads and associated service roads; pump stations, meter stations and other appurtenant facilities to oil and gas pipelines; and power projects (power plants, substations and receiving stations). A commenter also requested specifying that ‘‘oil and gas’’ includes hydrocarbons, refined products, natural gas liquids and other oil and gas products. One commenter stated that radio, television, and other communication facilities should be added to the list of examples. Response: The final rule adds pump stations, meter stations and other appurtenant facilities to the oil and gas pipeline item. Appurtenant facilities may also include well pads. Whether such facilities will be addressed in the grant depends upon the specific circumstances. The facilities may be included in the overall mineral lease, and therefore addressed in separate mineral leasing regulations. If the facilities are associated with a mineral lease on a split estate (in which the mineral estate and the surface estate are not owned by the same person or entity), then it may be appropriate for E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations the grant of right-of-way to address the facilities. The final rule does not add examples of oil and gas products because the term ‘‘oil and gas’’ is broad enough to encompass each of the examples. The final rule does not add power plants, substations and receiving stations to the list of examples because these items may be more appropriately governed by the leasing regulations at 25 CFR part 162 than these rights-of-way regulations. The list of examples includes ‘‘telecommunications’’ lines, which is intended to cover computer, television, radio, and other types of lines for technology used for communication over distances. Comment: One commenter requested an exception from part 169 for temporary access for mineral exploration. Response: The mineral regulations, rather than part 169, address temporary access for mineral exploration and geological and geophysical permits. See 25 CFR parts 211 and 212. Comment: One commenter requested a catch-all provision for the list of examples of rights-of-way such as ‘‘any other right-of-way that comes to be recognized as such’’ to capture any new types of rights-of-way that will arise in the future. Response: The final rule adds a catchall provision as requested at FR 169.5(a)(13). Comment: One commenter requested that the final rule delete the examples of right-of-way uses and instead stated that the part covers rights-of-way for all linear and non-linear surface uses. Response: The final rule retains the list of examples for guidance. Comment: One power administration commenter requested clarification that a right-of-way includes the right to manage vegetation and conduct emergency and routine maintenance as necessary to maintain safe and reliable electric transmission service. The commenter also requested an appendix to the rule setting out specifically which equipment is included in a transmission system right-of-way and allow for inspection, maintenance, repair, operations, upgrade and replacement of the equipment. The commenter also asked that the description be more specific with regard to electric transmission systems. Response: The final rule adds a new paragraph (b) to § 169.5 to clarify that a right-of-way includes access necessary to manage vegetation and maintain and repair equipment. The final rule does not include an appendix, because the text of the rule specifies that poles, towers, and appurtenant facilities are VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 included in a transmission right-of-way use, and the new paragraph (b) specifies that inspection, maintenance, and repair are included in the use. With regard to operations, upgrade, and replacement of the equipment, generally these activities would be allowed, but if they expand or change the use of the right-of-way then an amendment to the existing grant or a new right-of-way grant would be required. The final rule adds more specificity to § 169.5(a)’s description of electric transmission, as requested by the commenter. Comment: One commenter stated that any questions as to a right-of-way’s validity should be decided in tribal court. Response: Because the rights-of-way are issued by the Federal Government, the proper forum for disputes related to their validity is the Federal administrative agency (Bureau of Indian Affairs, with the possibility for appeal to the Interior Board of Indian Appeals). Appeals from federal administrative decisions are heard in the United States District Courts. Comment: A few commenters read proposed 169.005(b) (now FR 169.6) as allowing prior unperfected and unapproved rights-of-way to be recognized as valid and legal rights-ofway. Response: This provision does not validate or approve existing, unapproved rights-of-way. Any unauthorized use remains unauthorized. Comment: A commenter asked that proposed 169.005(b) (now FR 169.6) state that BIA will act on requests, rather than ‘‘grant,’’ to clarify that the grant of a right-of-way is not automatic. Response: The final rule clarifies at final § 169.6 that BIA will act on requests. 6. Applicability to Existing Rights-ofWay and Applications (PR 169.006/FR 169.7) Comment: A commenter requested that the new regulations not apply to any applications that are pending BIA approval, because applying the new regulations would create legal uncertainty as to the enforceability and effectiveness of those applications. This commenter was particularly concerned that the applicant would be penalized for BIA’s delay in approval by being forced to obtain new consents from landowners and resubmit information. Response: Applicants who have already submitted a right-of-way application under the pre-existing regulations, prior to the effective date of the new regulation, would not have to obtain any new consents or resubmit materials for the application as a result PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 72501 of the new regulations. BIA will review the application under the regulations existing at the time of submission, unless the applicant chooses to have the new regulations apply by withdrawing and resubmitting the application. Comment: Several commenters requested that the rule expressly state that it does not and will not impose any new burdens, limitations, restrictions, or responsibilities on preexisting rightof-way grants issued through other statutory authorities. A commenter requested clarification that the regulations do not apply to railroad rights-of-way granted in perpetuity under specific statues enacted by Congress in the late 19th century. Response: Rights-of-way under statutes other than 25 U.S.C. 323 exist. Only new grants of rights-of-way must comply with part 169’s new provisions for obtaining a right-of-way. Existing approved rights-of-way remain valid under the new regulations. The new provisions of part 169 do not affect the authority of those specific railroad statutes; however, the procedural requirements of the new part 169 will apply to the extent that they do not conflict with the authorizing statute or explicit provisions in the grant. For rights-of-way granted under specific statutory provisions, rather than the general authority in 25 U.S.C. 323, BIA will read the existing statutory requirements and grant provisions in a manner that promotes consistency with the new regulations. Comment: Many commenters opposed the proposed provision stating that the new regulations apply retroactively to existing right-of-way grants except where they ‘‘conflict’’ with the express terms of those grants, and stated that rights-of-way approved prior to the new rule’s effective date should not be subject to the new rule. These commenters pointed out that most preexisting grants are silent on the requirements imposed by the new regulations. For example, a right-of-way grant without a specific provision waiving BIA approval or consent, as was the common practice (because express language was never before required), would now require BIA approval and landowner consent for certain actions (assignments, e.g.). A few commenters asserted that existing rights-of-way grants are property rights. Commenters also stated that BIA cannot legally modify or insert new material terms into existing grants, but must honor the terms as written and the parties’ expectations as of the time the grant was issued. These commenters stated that exempting the existing rights-of-way would preserve the integrity of existing E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72502 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations contracts and avoid legal issues for breach of contract, breach of implied duty of good faith and fair dealings, or takings. With regard to assignments, specifically, several tribal commenters requested that consent and approval always be required because there have been numerous instances in which a right-of-way was assigned with no notification to, or consent of, the tribe, meaning that neither the landowner nor BIA may have record of the authorized user of the Indian land. Response: The new regulations are not intended to replace the original grant or statutory provisions, but the procedural requirements of these new regulations apply to the extent they do not conflict with the original grant or statutory provisions. In addition, in response to tribal commenters’ concerns that, in the past, rights-of-way were assigned without any notification to BIA or the tribe, the final rule establishes a new requirement for the assignee to notify BIA of past assignments to ensure BIA is aware of the identity of the legal occupant of the Indian land in furtherance of meeting its trust responsibilities to protect the Indian land from, for example, trespass. From the perspective of the assignee, this recordation requirement is simply a good business practice to ensure the Department has documentation of the assignee’s right to occupy Indian land. The final rule establishes a target deadline of 120 days after the effective date of the regulations for assignees to either provide BIA with documentation of their assignment, or to request an extension of time to provide BIA with such documentation. This requirement is not included in the previous version of the regulations but is imperative to BIA’s ability to fulfill its trust responsibilities. For any right-of-way grant application submitted but not yet approved by the effective date of the regulations, the grantee may withdraw the application and resubmit under the new rule. Otherwise, BIA will review the application under the regulations in existence at the time of submission, but once the right-of-way is granted, procedural provisions of the new rule apply. For example, if the grantee or assignee wants to assign, amend, or mortgage the right-of-way after the effective date of these regulations, the grantee or assignee will have to follow the procedures in this regulation, to the extent that such new processes and requirements do not change the terms of the pre-existing grant or statutory authority. In other words, if the preexisting grant or statutory authority VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 is silent on a particular procedural requirement, such as an assignment or amendment, the new regulatory provisions concerning that procedure would apply. Examples of procedural provisions that apply include procedures for obtaining amendments, assignments, mortgages, renewals, and complying with and enforcing rights-of-way grants. However, many current grants include language granting to the grantee and the grantee’s assignees; in that case, the grant would contain explicit language allowing the grant to be freely assigned without landowner consent or BIA approval, and that explicit grant language would govern. An example of a non-procedural provision is a regulatory statement of what jurisdiction applies. The question of whether tribal law or taxes apply to preexisting right-of-way grants after the effective date of the new regulations is not before the Department at this point, but to the extent any preexisting right-of-way is assigned or amended, the provisions of the new regulations govern. Comment: A few commenters stated that the rule should allow for renewals of rights-of-way grants existing prior to these regulations without the need to obtain consent because those older grants may not have addressed the possibility of renewal. Commenters further stated that this new requirement should not be applied retroactively, and that otherwise, this rule will effectively prevent renewal of existing rights-ofway, even when there is no change in use, requiring a survey and full application process. Response: If the original right-of-way was granted prior to the effective date of these regulations and is silent on whether renewals are permitted and under what conditions, then these regulations apply, and the grantee must follow the procedural requirements of these new regulations to obtain a renewal. See Section C for more on renewals. Comment: A few commenters stated that the review and adjustment requirements should not be applied retroactively. The commenters note that the current regulations provide no requirement for review or adjustment. Response: The review and adjustment requirements do not apply retroactively to grants that pre-date these regulations because they are non-procedural (i.e., substantive) provisions that would affect compensation, a core term of the grant; those grants were issued based on the compensation established when they were negotiated and approved. PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 7. Administration of Regulations by Tribes on BIA’s Behalf (PR 169.007/FR 169.8) Comment: One tribal commenter requested that, throughout the regulations, ‘‘BIA,’’ ‘‘BIA office,’’ and ‘‘we’’ should be revised to clarify that it refers to the tribe in those cases in which the tribe administers real estate services under a Public Law 93–638 contract. Response: The term ‘‘BIA’’ is defined to include tribes acting on behalf of the Secretary or BIA under Indian SelfDetermination and Education Assistance Act contracts or compacts. Comment: One commenter stated that tribes do not gain any substantive authority to administer rights-of-way under the new rules because the new rules do not allow tribes to grant, approve, or disapprove a right-of-way document or waiver, cancellation or appeal. Response; The new rules make no change to the scope of functions a tribe may compact or contract for, but does specify which functions may not be contracted or compacted because they are ‘‘inherently Federal.’’ Comment: One commenter asked that this section specify that a tribe may require that the applicant negotiate with it as a condition of obtaining tribal consent for the right-of-way. Response: When tribal consent for a right-of-way provision is required, the tribe may require that the applicant negotiate the terms of consent. Comment: One commenter stated that the rule should be clearer on whether BIA or the tribe administers the functions. Response: The final rule clarifies that applicants may check with either the BIA office or the tribal office to determine whether the tribe has compacted or contracted to administer realty functions. Comment: One commenter asserted that tribes are not authorized to compact or contract to administer BIA functions with regard to pipeline rights-of-way because the Indian Self-Determination and Education Assistance Act (ISDEAA) does not specify that program. Response: Realty functions, including administration of rights-of-way, may be compacted or contracted under the ISDEAA. See 25 U.S.C. 450f(a)(1)(A)– (E). Comment: A commenter stated that the term ‘‘tribal organization’’ in this section is unclear as to whether it includes entities such as the telephone authority. Another commenter requested clarification on which officer or entity in the tribe is authorized to E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations make decisions in administering the compacted or contracted functions. Response: The ISDEAA governs the meaning of ‘‘tribal organization’’ in this section. Tribal law governs which officer or entity is authorized to make decisions on behalf of a tribe. mstockstill on DSK4VPTVN1PROD with RULES2 8. Laws Applicable to Rights-of-Way Approved Under These Regulations (PR 169.008/FR 169.9) Comment: A commenter stated that the rule should specify that a right-ofway ‘‘use’’ is interpreted consistently with general common law principles of easements and rights-of-way, and that Federal common law applies except that State law may apply where it is not hostile or aberrant to Federal policy or otherwise frustrates Federal policy. Response: Final § 169.9 clarifies that rights-of-way are generally subject to Federal and tribal law, but not State law. Comment: A commenter noted that the structure of the proposed section is disjointed and causes confusion. Other commenters stated that the section should be deleted because of the risk that the regulations could cause confusion regarding what the law is and is unnecessary. Response: The final rule redrafts this section to address concerns as to its disjointed and confusing nature and also divides the section into two separate sections, one addressing law (FR 169.9), and one addressing jurisdiction (FR 169.10). a. State Jurisdiction/State Law Comment: Several commenters opposed the proposed provision allowing parties to consent to the applicability of State law, stating that it is a waiver of sovereign immunity and that landowners may inadvertently choose State law by signing a document without full knowledge of the consequences. Response: Proposed paragraph (c) was a choice of law provision that was intended to clarify that where a vacuum of applicable Federal and tribal law exists, the landowners may choose to apply State law. The final rule deletes this provision due to commenters’ opposition. Comment: Several commenters opposed the proposed provision indicating that State law applies if the tribe, Congress, or a Federal court has made it expressly applicable. Several commenters stated that this provision invites a broad reading, allowing State law to apply in nearly every circumstance. One commenter stated that the Kennerly case forecloses the application of State jurisdiction over VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Indian land subject to a right-of-way, whether by a tribal member or a tribe absent a statute conferring jurisdiction. One commenter suggested the provision instead state that rights-of-way are not subject to State law ‘‘except to the extent allowable under Federal law and consistent with Indian treaty rights and tribal sovereignty.’’ Response: To address the comments, the final rule deletes the specifics on when State or local law may apply and instead provides that ‘‘generally’’ State and local law do not apply. The provision allowing landowners to agree to the application of State law was intended for situations in which neither the tribe nor Federal law address a specific topic, and the tribe chooses State law to fill the vacancy (e.g., if a tribe chooses to apply State law regarding cable access). The proposed provision regarding Congress was included because there are Federal statutes conferring jurisdiction over Indian land subject to a right-of-way (e.g., Maine Indian Claims Settlement Agreement of 1980 or Pub. L. 83–280). If State law is made applicable by Federal or tribal law, these instances are covered by the other provisions establishing the applicability of Federal and tribal law. Comment: Some commenters stated that the new regulation conflicts with established law (in Strate) because tribal law and jurisdiction does not presently apply to lands subject to a right-of-way. Response: The new regulation provides that future rights-of-way will explicitly state that the grant does not diminish the tribe’s jurisdiction. Commenter: Some commenters stated that this section truncates State jurisdiction over Indian lands, violating the Federalism executive order. Response: The Federalism executive order addresses the balance of authority between the Federal government and States; it is inapplicable here because this rule addresses the balance of authority between tribal and State law. b. Tribal Law Comment: A few commenters stated that proposed paragraph (a) is erroneous in stating that rights-of-way are subject to tribal law because Congress preempted any application of tribal law to transportation by rail and State laws apply to utility service on tribal lands. A commenter also noted that some tribes have relinquished jurisdiction by treaty. Response: Paragraph (a), as well as other paragraphs in this section, do not expand the applicability of tribal law; rather it clarifies that the grant of a PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 72503 right-of-way will not limit any existing applicability in any way. Comment: Several tribal commenters stated that the proposed paragraph (a)(2) should simply say that rights-of-way are subject to tribal law ‘‘except to the extent that tribal law is inconsistent with applicable Federal laws’’ and delete the provisions in proposed paragraph (b) allowing for tribal law to modify the regulations under certain circumstances. Tribal commenters stated that the provisions are too restrictive and disrespect tribal sovereignty. Additionally, non-tribal commenters expressed concerns that tribal regulations may change without any notice or consent of the right-of-way grantee. Another stated that if the provision is not removed, it should at least clarify that the tribal law will not be effective if it conflicts with other binding Federal laws. One tribal commenter stated that allowing the tribal law to supersede unless the tribe’s law would ‘‘conflict with our general trust responsibility’’ provides no guidance. Some tribal commenters stated that the regulation should provide that tribal law ‘‘presumptively applies.’’ A few commenters stated that tribal laws should apply to all land within the reservation (both tribal and allotted); otherwise, an individual could consent to a right-of-way that is in violation of tribal law. Some commenters opposed the applicability of tribal law under any circumstance because a grantee that needs to obtain rights-of-way across several tribes’ lands could be subjected to multiple, and possibly conflicting requirements, undermining the purpose of the rule to streamline the process. A tribal commenter also suggested deleting the requirement that the tribe provide BIA with notice that the law supersedes because this could become a technical glitch that would hinder application of tribal laws that would otherwise be applicable. Response: In response to these comments regarding the uncertainty of whether tribal law would supersede or modify Federal law, the final rule simplifies this provision to state that rights-of-way are subject to tribal law except to the extent that the tribal law is inconsistent with applicable Federal law. Tribes are sovereigns with the inherent power to make laws. It is the responsibility of anyone doing business within a particular jurisdiction to know the law of that jurisdiction. Comment: One commenter stated that the phrase ‘‘except to the extent that those tribal laws are inconsistent with these regulations or other applicable Federal law’’ should be deleted because E:\FR\FM\19NOR2.SGM 19NOR2 72504 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations it is too confusing, and is unnecessary given that it has already been established that Federal law applies. Response: The final rule retains this necessary provision because there may be circumstances in which tribal law would apply but for the fact that the tribal law is inconsistent with Federal law. mstockstill on DSK4VPTVN1PROD with RULES2 c. Tribal Jurisdiction Comment: A few tribal commenters suggested line edits to this section to clarify that the tribe has jurisdiction over persons, as well as activities, and to change ‘‘not inconsistent with’’ to ‘‘within’’ the right-of-way. Commenters also stated that people and activities should be included in the scope of things over which the tribe’s jurisdiction remains unaffected. A few other commenters requested the rule instead expressly describe circumstances in which the tribe’s jurisdiction does not extend to lands subject to a right-of-way, such as taxation of non-tribal members on fee land within a reservation. Another commenter stated that the rule should reflect that tribes have ‘‘virtually no authority over non-member conduct.’’ Response: The final rule does not grant or add any jurisdiction to tribes, but establishes that the grant of right-ofway does not diminish the tribe’s jurisdiction. The final rule also clarifies that the grant of right-of-way does not affect the tribe’s jurisdiction over people and activities, in addition to land. A grant of right-of-way is merely a grant of a specific use of the land for a specified period of time within the confines of the grant document. The grant does not in any way diminish tribal sovereignty over those lands. Comment: A commenter suggested deleting the introduction to proposed paragraph (e) because it suggested a tribe might cede tribal jurisdiction in its consent to a right-of-way, while Kennerly established that this can be done only through an Act of Congress. Response: The final rule deletes the identified provision because, as the commenter points out, the U.S. Supreme Court has determined that a tribe may not cede jurisdiction without an Act of Congress. See Kennerly v. District Court, 400 U.S. 423 (1971). Comment: One tribal commenter stated that the regulations should remind the public of the basic principle of Indian law that tribes may negotiate a right-of-way without including State regulatory bodies. Response: While the commenter is correct, it is not necessary to state so in the regulation. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Comment: A commenter stated that proposed paragraph (e)’s language that the tribe has jurisdiction over those ‘‘who enter into consensual relationships’’ does not apply in the context of right-of-way grants because case law has established that grantees are not in a ‘‘consensual relationship’’ with the tribe by virtue of the right-ofway grant. Other commenters suggested that the provision stating that the regulation does not limit the tribe’s inherent sovereign power to exercise civil jurisdiction over non-members ‘‘who enter into consensual relationships’’ with the tribes improperly limits the tribes’ sovereign power by implying that the Montana analysis extends beyond fee land. Response: The proposed language regarding a consensual relationship was derived from the decision in Montana v. United States, 450 U.S. 544, 565 (1981). As commenters pointed out, Montana’s general rule limiting tribal authority over nonmembers’ activities and its two exceptions, including the consensual relationship exception, is limited to non-Indian fee land. 450 U.S. at 557. See also Strate v. A–1 Contractors, 520 U.S. at 453 (describing Montana’s ‘‘main-rule and exceptions’’ as ‘‘[r]egarding activity on non-Indian fee land’’); Atkinson Trading Co. v. Shirley, 532 U.S. 645, 654 (2001) (referring to ‘‘Montana’s general rule that Indian tribes lack civil authority over nonmembers on non-Indian fee land’’); Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 813 (9th Cir. 2011) (noting that ‘‘Montana ordinarily applies only to non-Indian Land’’). The Montana court recognized that a tribe may regulate nonmembers’ activities ‘‘on land belonging to the [t]ribe or held by the United States in trust for the [t]ribe.’’ 450 U.S. at 557. For this reason, the final rule eliminates the ‘‘consensual relationship’’ language and instead states simply that the regulations do not limit the tribe’s inherent sovereign power to exercise civil jurisdiction over non-members on Indian land. Plains Commerce Bank v. Loving Family Land & Cattle Co., 554 U.S. 316, 327–28 (2008). This statement confirms that the grant of right-of-way preserves any pre-existing tribal authority. Even if Montana’s rule and exceptions do apply, we disagree with the commenters that a tribe is not in a consensual relationship with a right-ofway grantee on tribal trust or restricted land. Under Montana, an Indian tribe ‘‘may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 members, through commercial dealing, contracts, leases, or other arrangements.’’ 450 U.S. at 565. As explained above, and required by the 1948 Act, tribal consent is required for the right-of-way. Therefore, the consensual relationship exception applies. Comment: Several commenters asserted that the tribe has no jurisdiction over right-of-way land or over non-Indians, pointing to the decision in Strate for the premise that land subject to a right-of-way is the equivalent of fee land. Response: As described above, the fact pattern, and, therefore, the cited holding, in Strate does not apply to rights-of-way granted under these regulations because the regulations and grants establish continued tribal jurisdiction over the granted land. Strate does confirm, however that ‘‘where tribes possess authority to regulate the activities of nonmembers, civil jurisdiction over disputes arising out of such activities presumptively lies in the tribal courts.’’ 520 U.S., at 453 (brackets and internal quotation marks omitted). Commenter: One commenter suggested that proposed paragraph (e)(5), regarding the character of the land as Indian country under 18 U.S.C. 1151, should add ‘‘as interpreted and supplemented by Federal case law.’’ Response: The final rule does not add this modifier because it is unnecessary. Whether land is ‘‘Indian country’’ is a legal question. Comment: One commenter stated their opposition to the tribe regulating allotted lands, and asserted that, under Strate, allotted or other land subject to a right-of-way grant is not subject to the tribe’s jurisdiction. Response: The right-of-way grant does not affect the tribe’s jurisdiction over the land. If the land is within the boundaries of the tribe’s reservation, then the tribe has jurisdiction, regardless of whether a right-of-way has been granted. See Cohen’s Handbook on Federal Indian Law section 4.01[2][c], at 216–218 (2012 ed.). Comment: A few commenters noted that proposed paragraph (e)(2) seems to assert that the tribe has the power to tax trust land, and instead should be limited to allowing the tribe to tax improvements and activities. Response: This section is simply clarifying that the regulations do not affect any pre-existing jurisdiction that the tribe may have. See Merrion v. Jicarilla, 455 U.S. 130 (1982); Cohen’s Handbook on Federal Indian Law section 8.01[1], at 676 (2012 ed.) (‘‘Indian tribes have the power to law and collect taxes, subject to certain E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 exceptions with respect to nonIndians’’). 9. Taxes Applicable to Rights-of-Way Approved Under These Regulations (PR 169.9/FR 169.11) Comment: Several commenters supported the proposed rule’s affirmation of tribes’ exclusive and continuing sovereign authority to tax improvements and activities on lands subject to rights-of-way. These commenters suggested the final rule require that the right-of-way applications and documents include references to this section and describe the basis for this section to reinforce the Department’s position. One commenter recommended that the regulations prohibit State taxation of any compensation the tribe receives for its right-of-way and any pass-through to the tribe or tribal members. This commenter noted that if a State requires a tribe to pay back any of the compensation it receives for a right-of-way, the State is effectively circumventing the compensation requirement, benefitting, for example, a rural electric cooperative at the expense of the tribal beneficiaries. One commenter stated that the U.S. Supreme Court has ruled that certain State taxes may apply to utilities that operate within Indian rights-of-way, pointing to Wagnon v. Prairie Band of Potawatomi Nation, 546 U.S. 95 (2005). Response: The final rule at § 169.125(c) adds requirements for the right-of-way documents to include references to the regulatory section on taxation. Tribes have inherent plenary and exclusive power over their citizens and territory, which has been subject to limitations imposed by Federal law, including but not limited to Supreme Court decisions, but otherwise may not be transferred except by the tribe affirmatively granting such power. See Cohen’s Handbook of Federal Indian Law, 2012 Edition, section 4.01[1][b]. The U.S. Constitution, as well as treaties between the United States and Indian tribes, executive orders, statutes, and other Federal laws recognize tribes’ inherent authority and power of selfgovernment. See Worcester v. Georgia, 31 U.S. 515 (1832); U.S. v. Winans, 198 U.S. 371, 381 (1905) (‘‘[T]he treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted.’’); Cohen’s Handbook of Federal Indian Law, 2012 Edition, section 4.01[1][c] (‘‘Illustrative statutes . . . include [but are not limited to] the Indian Civil Rights Act of 1968, the Indian Financing Act of 1974, the Indian SelfDetermination and Education Assistance Act of 1975 . . . [and] the VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Tribe Self-Governance Act . . . In addition, congressional recognition of tribal authority is [also] reflected in statutes requiring that various administrative acts of . . . the Department of the Interior be carried out only with the consent of the Indian tribe, its head of government, or its council.’’); Id. (‘‘Every recent president has affirmed the governmental status of Indian nations and their special relationship to the United States’’). Section 5 of the Indian Reorganization Act, 25 U.S.C. 465, preempts State and local taxation of permanent improvements on trust land. See Confederated Tribes of the Chehalis Reservation v. Thurston County, 724 F.3d 1153, 1157 (9th Cir. 2013) (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145, 158 (1973) (‘‘use of permanent improvements upon the land is so intimately connected with use of the land itself that an explicit provision relieving the latter of state tax burdens [25 U.S.C. 465] must be construed to encompass an exemption for the former’’). Similarly, section 465 preempts state taxation of rent payments by a lessee for leased trust lands, because ‘‘tax on the payment of rent is indistinguishable from an impermissible tax on the land.’’ See Seminole Tribe of Florida v. Stranburg, No. 14–14524, *13–*17, n.8 (11th Cir. 2015). In addition, with a backdrop of ‘‘traditional notions of Indian selfgovernment,’’ Federal courts have applied a balancing test to determine whether State taxation of non-Indians engaging in activity or owning property on the reservation is preempted. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980). The Bracker balancing test requires a particularized examination of the relevant State, Federal, and tribal interests. In the case of rights-of-way on Indian lands, the Federal and tribal interests are very strong. Confederated Tribes of the Chehalis Reservation v. Thurston County, 724 F.3d at 1157; see also Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2043 (2014) (Sotomayor, J., concurring) (determining that ‘‘[a] key goal of the Federal Government is to render Tribes more self-sufficient, and better positioned to fund their own sovereign functions, rather than relying on Federal funding’’). The Federal statutes and regulations governing rights-of-way on Indian lands occupy and preempt the field of Indian rights-of-way. The Federal statutory scheme for rights-of-way on Indian land is comprehensive, and accordingly precludes State taxation. State taxation would undermine careful work of PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 72505 Federal actors analyzing the best interests of tribal beneficiaries under the trust responsibility. The Federal regulatory scheme is pervasive and leaves no room for State law. Federal regulations cover all aspects of rights-of-way: Whether a party needs a right-of-way grant to authorize possession of Indian land; how to obtain a right-of-way grant; how a prospective grantee identifies and contacts Indian landowners to survey and negotiate for a right-of-way grant; consent requirements for a right-of-way and who is authorized to consent; what laws apply to rights-of-way; employment preference for tribal members; combining tracts with different Indian landowners in a single right-of-way grant; trespass; emergency action by us if Indian land is threatened; appeals; documentation required in approving, administering, and enforcing rights-of-way; right-of-way grant duration; mandatory grant provisions; construction, ownership, and removal of permanent improvements, and plans of development; legal descriptions of the land subject to a right-of-way; amount, time, form, and recipient of compensation (including non-monetary rent) for rights-of-way; valuations; bond and insurance requirements; Secretarial approval process, including timelines, and criteria for granting rights-of-way; recordation; consent requirements, Secretarial approval process, criteria for approval, and effective date for grant amendments, assignments, subleases, and mortgages; investigation of compliance with the terms of a right-ofway grant; negotiated remedies; late payment charges or special fees for delinquent payments; allocation of insurance and other payment rights; Secretarial cancellation of a grant for violations; and abandonment of the premises subject to a right-of-way grant. Right-of-way grants allow Indian landowners to use their land profitably for economic development, ultimately contributing to tribal well-being and self-government. Assessment of State and local taxes would obstruct Federal policies supporting tribal economic development, self-determination, and strong tribal governments. State and local taxation also threatens substantial tribal interests in effective tribal government, economic self-sufficiency, and territorial autonomy. It is unequivocally the policy of the United States to attract economic development to Indian lands. State taxation can undermine the economic attractiveness of a right-of-way across Indian land. It can also effectively undermine the ability of a tribe, as a practical matter, to impose its own taxation. Consenting E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72506 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations to rights-of-way on trust or restricted land is one of several tools, including entering into leases, that animate ‘‘the traditional notions of sovereignty and [ ] the federal policy of encouraging tribal independence.’’ Bracker, 448 U.S. at 145 (citing McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174–75 (1973)). The granting of rights-of-way on trust or restricted lands facilitates the implementation of the policy objectives of tribal governments through vital residential, economic, and governmental services. Tribal sovereignty and self-government are substantially promoted by rights-of-way under these regulations, which require significant deference, to the maximum extent possible, to tribal determinations that a grant provision or requirement is in its best interest. See Joseph P. Kalt and Joseph William Singer, The Native Nations Institute for Leadership, Management, and Policy & The Harvard Project on American Indian Economic Development, Joint Occasional Papers on Native Affairs, Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule, No. 2004–03 (2004) (‘‘economically and culturally, sovereignty is a key lever that provides American Indian communities with institutions and practices that can protect and promote their citizens interests and well-being [and] [w]ithout that lever, the social, cultural, and economic viability of American Indian communities and, perhaps, even identities is untenable over the long run’’). Another important aspect of tribal sovereignty and self-governance is taxation. Permanent improvements and activities on the premises subject to a right-of-way and the interest itself may be subject to taxation by the Indian tribe with jurisdiction over the leased property. The Supreme Court has recognized that ‘‘[t]he power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management.’’ Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982). State and local taxation of granteeowned improvements, activities conducted by the grantee, and the rightof-way interest also has the potential to increase project costs for the grantee and decrease the funds available to the grantee to compensate the Indian landowner. Increased project costs can impede a tribe’s ability to attract nonIndian investment to Indian lands where such investment and participation are critical to the vitality of tribal economies. An increase in project costs is especially damaging to VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 economic development on Indian lands given the difficulty Indian tribes and individuals face in securing access to capital. A 2001 study by the U.S. Department of the Treasury found that Indians’ lack of access to capital and financial services is a key barrier to economic advancement. U.S. Dept. of the Treasury, Community Development and Financial Institutions Fund, The Report of the Native American Lending Study at 2 (Nov. 2001). According to the report, 66 percent of survey respondents stated that private equity is difficult or impossible to obtain for Indian business owners. Id. Tribes may contractually agree to reimburse the non-Indian grantee for the expense of the tax, resulting in the economic burden of the tax ultimately being borne directly by the tribe. Accordingly, the very possibility of an additional State or local tax has a chilling effect on potential grantees as well as the tribe that, as a result, might refrain from exercising its own sovereign right to impose a tribal tax to support its infrastructure needs. Such dual taxation can make some projects less economically attractive, further discouraging development in Indian country. Economic development on Indian lands is critical to improving the dire economic conditions faced by American Indians and Alaska Natives. The U.S. Census Report entitled We the People: American Indians and Alaska Natives in the United States, issued February 2006, documented that a higher ratio of American Indians and Alaska Natives live in poverty compared to the total population, that participation in the labor force by American Indians and Alaska Natives was lower than the total population, and that those who worked full-time earned less than the general population. See also U.S. Census American Community Survey Brief: Poverty Rates for Selected Detailed Race and Hispanic Groups by State and Place: 2007–2011 (Issued February 2013). In addition, Congress specifically allowed for State taxation of rights-ofway on Indian land in other instances, such as at 25 U.S.C. 319. The fact that Congress did not specifically authorize State taxation at 25 U.S.C. 323 evidences that it did not intend for rights-of-way granted under that authority to be taxable by the State. Indeed, to the extent that the lack of a specific authorization for State taxation creates an ambiguity, the Department expressly determines, for all the reasons stated above, that State taxation is not authorized under 25 U.S.C. 323 and would substantially undermine the statutory scheme. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 Comment: One State commenter stated that it addresses the dual taxation issue by entering into intergovernmental agreements with the tribes, whereby the State collects the tax and shares the revenue with the tribes. The State expressed its concern that if the rule removes State jurisdiction to tax projects in rights-of-way, then tribes will have to undertake the expensive auditing and tax collection functions, and the uniformity of intergovernmental agreements would be lost. Response: Nothing in these regulations precludes tribes, States, and local governments from entering into cooperative agreements to address taxation and regulatory issues. The Department encourages such cooperative agreements. Comment: One commenter requested clarification that State or local governments may not assess a tax, fee, assessment, etc., on materials used or services performed in constructing improvements in rights-of-way. Response: The final rule’s term ‘‘activities’’ is intended to include, among other things, materials used or services performed in constructing improvements in the right-of-way. Comment: A few commenters stated that certain individuals or entities should not be subject to taxation, such as when a State, county, city, other taxexempt entity, or allottee is making the improvements, participating in the activities, or holding the possessory interest. Response: The final rule does not change the scope of individuals and entities that a tribe may tax, but merely recognizes explicitly this authority where it exists. Comment: One commenter noted that ‘‘possessory interest’’ should instead be ‘‘right-of-way interest.’’ Response: The final rule replaces ‘‘possessory interest’’ with ‘‘right-of-way interest’’ in response to this comment. Comment: One commenter stated that by prohibiting State taxation on rightsof-way on Indian land, the rule does not guarantee that tribes commensurately gain taxing authority, but rather opens a jurisdictional vacuum. The commenter stated that a vacuum would be detrimental to the public as a whole and tribal members who live near rights-ofway. Response: The rule does not create a jurisdictional vacuum, as tribes may tax within their jurisdiction; it is up to the tribe whether to exercise that taxing jurisdiction. Comment: A few commenters stated that the proposed provisions regarding improvements being subject to taxation by tribes are unnecessary and should be E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations deleted, because they could be read to expand tribes’ taxing authority rather than just preserve taxing authority where it already exists. Response: The final rule combines the proposed provisions into one comprehensive provision at paragraph (b) addressing tribal taxation of improvements. The final rule does not change the substance of the proposed rule. The commenters are correct that this provision is intended to preserve tribal taxation authority. The Department has determined that no change is necessary to the proposed language, that improvements ‘‘may be subject to taxation by the Indian tribe,’’ because this language states that such authority may exist without providing independent authority for taxation. Comment: A few commenters stated that proposed § 169.009’s use of the phrase ‘‘subject only to Federal law’’ is ambiguous. One said it could be read to exclude tribal law. Another commenter asked specifically whether any ‘‘fee, tax, assessment’’ under this section would include State and local income taxes, gross receipt taxes, payroll taxes, and personal property taxes. A few commenters stated that there are Federal court decisions upholding State taxes on interests or activities in a right-of-way, including Agua Caliente Band of Mission Indians v. Riverside County, 442 F.2d 1184 (9th Cir. 1971) and Fort Mojave Tribe v. San Bernardino County, 543 F.2d 1253 (9th Cir. 1976). One commenter stated that the rule should clarify that Federal court decisions’ precedential weight should be limited to rights-of-way granted before the effective date of the revised regulations. Response: To clarify, the phrase ‘‘subject to’’ in final rule § 169.11 (and PR 169.009) means that State or political subdivisions of States may not propose fees, taxes, assessments, etc., unless Federal law provides otherwise. Federal law includes, but is not limited to, Federal statutes, Federal regulations, treaty provisions, Executive orders, or Federal case law. Each fee, tax, and assessment is subject to an analysis under Federal law, including any applicable Federal case law precedent. The Department agrees that Federal case law issued prior to these regulations may have limited precedential weight because they did not have the benefit of the Department’s analysis under Bracker. Comment: One commenter stated that there is already extensive Federal regulation over the national power grid, and to the extent the rule’s provisions could authorize new taxes on electric transmission services, it could interfere with national energy policy by adding VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 costs to ratepayers. Another commenter stated that the rule extends beyond the Department’ authority by unnecessarily complicating jurisdictional issues on Indian land. These and other commenters stated that the rule is contrary to current practices in which utilities pay county property taxes for facilities located on Indian lands. One commenter asked whether the county would be subject to enforcement under this rule for imposing taxes. Response: The final rule does not authorize taxation by tribes, States or political subdivisions of States, but preserves the tribe’s ability to tax and states the Federal position in the Bracker balancing test on State taxation. While electric transmission may be subject to taxation by the tribe, a utility need not pay county property taxes for facilities that are outside the county’s jurisdiction (i.e., on Indian land). A county that imposes taxes on a utility within a right-of-way on Indian land is not subject to enforcement under this rule because it is not a party to the rightof-way. Comment: A few commenters stated that a tribe’s imposition of taxes upon non-members’ interests or activities in a right-of-way is presumptively invalid, citing Atkinson Trading Co. v. Shirley, 532 U.S. 645, 659 (2001). Response: The case cited by the commenter for this proposition related to fee land. As described above, trust or restricted land that is subject to a rightof-way remains trust or restricted land and it does not become fee land if the tribe reserves its jurisdiction over the land. Comment: One commenter suggested revising this section to state simply that taxes may be assessed if permitted by applicable law on land, improvements, and activities. Response: The final rule retains the substance of the proposed provisions on taxation, rather than taking the commenter’s suggestion, in order to explain the strong Federal and tribal interests against State and local taxation. Comment: One commenter stated that, if the rule intends to alter the balance under the Bracker test, then it will impact the abilities of State and tribal governments to impose taxes, which is contrary to the statement in the Federalism section stating that the rule has no substantial direct effect on the States, the relationship between the national government and the States, or distribution of power. Another commenter stated that the Department should notify and consult with affected States before issuing a final regulation if it preempts State taxing authority. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 72507 Response: The Federalism analysis addresses the balance of power between the Federal government and States. The balance of power between tribal governments and States is outside the scope of Federalism. As noted above, States commented on the proposed rule, including on this provision. Comment: One commenter questioned how any structure within a right-of-way for a term less than an indefinite term could be considered a ‘‘permanent improvement.’’ Response: The final rule adds a definition for permanent improvement to clarify its meaning; it is not necessary that the improvement be actually permanent, but that it be attached to (or in) the land. Comment: One commenter stated that the tribe cannot tax the land because trust and restricted lands are not subject to taxation. Response: The regulation addresses taxation of activities and interests, rather than taxation of the land itself. 10. Notice of Rights-of-Way (PR 169.010/FR 169.12) Comment: One commenter stated that the term ‘‘affecting’’ for Indian land is ambiguous and could be interpreted in an overly broad manner in this section to require notice of actions on nonIndian lands. Response: The final rule changes ‘‘affecting’’ to ‘‘over or across’’ to clarify that the notice to Indian landowners is triggered for rights-of-way actions on or across their Indian land. The final rule also replaces the term ‘‘affecting’’ and ‘‘on or across’’ in other sections throughout the rule in response to this comment. Comment: Several commenters opposed notifying individual Indian landowners by constructive notice. These commenters stated that every landowner is entitled to actual notice of actions involving their land, no matter how numerous the landowners are. A few commenters stated that the Department should provide direct notification by certified letter to individual Indian landowners of any determination. Other commenters stated that providing notice to every individual owner is too expensive and supported constructive notice and one suggested providing no notice to landowners. Response: The final rule deletes the allowance for ‘‘constructive notice’’ for grants of rights-of-way and instead requires the Department to provide actual notice to the individual Indian landowners by mail or, upon the landowner’s request, by email. This approach ensures that each beneficial E:\FR\FM\19NOR2.SGM 19NOR2 72508 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 owner receives written notice of a rightof-way on his or her land. The final rule does not require certified letters because of the additional expense associated with such letters. The rule provides for constructive notice of certain enforcement actions. Comment: A commenter suggested that applicants should also be permitted to provide constructive notice to individual Indian landowners. Response: Applicants must directly contact individual Indian landowners, and may not use constructive notice, both to ensure that the landowners are aware of the potential application for a right-of-way and to obtain the consent of the individual owners of the requisite majority interests. Comment: A few commenters suggested allowing the Department to notify the applicant and tribe by email. Response: The final rule allows the Department to notify the applicant and tribe by email of any status updates or determinations where the applicant or tribe requests. The final rule also allows individual Indian landowners to request to receive their notices by email. Comment: Several tribes requested that they be notified of rights-of-way on land within their jurisdiction, even if the tribe is not an owner of the land. The commenters note that such notice would allow the tribe to better plan for development within the tribe’s jurisdiction. Response: The final rule incorporates a provision to notify the tribe of rightsof-way in its jurisdiction. Comment: A few commenters stated that the rules increase the Department’s ability to make decisions on behalf of tribes and individual on actions impacting their lands. Response: The rule does not increase the Department’s ability to make decisions on behalf of Indian landowners without notice. In fact, the rule provides that the Department will defer to the tribe’s decision for tribal land. The rule increases the notice that is provided to the tribe to include notice of right-of-way decisions on any land within its jurisdiction, and formalizes notice requirements for individual Indian landowners. 11. Appeals of Right-of-Way Decisions (PR 169.011/FR 169.13) Comment: A few commenters suggested that the proposed rule could be construed broadly to allow any Indian landowner to appeal a right-ofway denial, regardless of whether the landowner owns land over which the right-of-way would cross. Response: The final rule clarifies that an Indian landowner may appeal a VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 denial of a right-of-way under 25 CFR part 2 only if the right-of-way would have been over or across land owned by that Indian landowner. Comment: Several commenters objected to limiting the right of appeal to Indian landowners if BIA disapproves a right-of-way application. These commenters reasoned that anyone with a ‘‘legitimate interest’’ should have the right to administrative appeal and the applicant is uniquely situated because it invested time and money applying for the right-of-way. These commenters also stated that denying the applicant the opportunity to appeal administratively would limit the applicant to challenging the denial in Federal district court, rather than a more cost-effective administrative appeal and eliminate the Department’s ability to defend on a failure to exhaust administrative remedies. One commenter pointed out that allowing only the Indian landowner to appeal a denial of a right-of-way application puts the burden on the landowner to expend the resources to appeal. A few commenters suggested deleting this section and instead referring to 25 CFR part 2 (Appeals from Administrative Actions). Response: The final rule allows both applicants and Indian landowners to appeal the Department’s decision to deny an initial right-of-way application or any other right-of-way grant document. This approach is more closely aligned to that taken in the generally applicable administrative appeals provisions at 25 CFR part 2, which allows an appeal by any person (including corporations, tribes, or organizations) whose interests could be adversely affected by a decision. While this is different from the approach taken in the leasing regulations, it is appropriate with regard to rights-of-way because the applicants have a greater interest in a particular location for rights-of-way, given that rights-of-way often cross several tracts. Comment: A few commenters disagreed with the proposal to limit who qualifies as an interested party to only those ‘‘whose own direct economic interest is adversely affected by an action or decision.’’ These commenters note that this definition is narrower than the current, generally applicable definition at 25 CFR part 2, which allows anyone whose interests may be adversely affected to appeal. One commenter stated that if a right-of-way for a power line is subject to renewal, anyone who would have been served by the power line should be entitled to appeal the Department’s denial of the renewal. One commenter suggested further limiting who qualifies by adding PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 that the person must also be located adjacent to or in close proximity to the right-of-way. Response: The final rule retains the proposed limitations on who is considered an ‘‘interested party’’ for the purposes of rights-of-way because those without a direct economic interest are only tangentially affected and should not have the right to appeal. In response to the comment about further limiting who qualifies as an ‘‘interested party,’’ the final rule adds that an interested party is any person whose land is subject to the right-of-way or located adjacent to or in close proximity to the right-of-way whose own direct economic interest is adversely affected by an action or decision. This addition reinforces that the economic interest must be ‘‘direct’’ both in cause and effect and in proximity. C. Subpart B—Obtaining a Right-ofWay 1. Consent Comment: One commenter stated that BIA should provide notice to 100 percent of the Indian landowners and obtain 100 percent consent before granting a right-of-way. Response: The final rule clarifies that all landowners must be notified. Under the proposed and final rule, BIA generally requires the applicant to obtain the consent of the Indian landowners to obtain access to the land to survey (at PR and FR 169.101(b)) and BIA requires record of the requisite landowner consent for a right-of-way (at PR and FR 169.107). The applicant must also obtain the consent of the owners of a majority of the interests in the tract to obtain the right-of-way. Consent of the owners of 100 percent of the interests in a tract is not required because the governing statute requires only a majority (25 U.S.C. 324). Comment: One commenter questioned why the applicant must provide notice to 100 percent of the landowners, when consent is required of only the owners of a majority interest. A commenter also stated that the notice and consent provisions were not feasible. Response: Each landowner has the right to know of important actions potentially occurring on land in which he or she owns an interest. The final rule requires notification consistent with the Department’s trust responsibility to individual Indian landowners. Comment: A tribal commenter stated that while the revisions modernize the regulations in support of economic development, there are challenges in servicing thousands of landowners for E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations basic infrastructure needs and the rigors of providing notice and obtaining consent can cause considerable delay. Response: The Department recognizes that, while providing notice and obtaining consent is time- and resourceintensive, as trustee of landowners, it must demand that such notice is provided and the required level of consent is obtained (as required by statute), regardless of whether the rightof-way is for economic development or basic infrastructure. The final rule does provide relief for utility cooperatives and tribal utilities with regard to compensation and bonding, as described below, to encourage rights-ofway to provide infrastructure. Comment: A few commenters stated that tribal consent should be required for a right-of-way over any tribal land; one noted that it has been longstanding practice to require tribal consent over any tract in which a tribe owns a fractional interest. Others stated that the rule should not require tribal consent where the tribe owns only a fractional interest because a tribe could unilaterally stop other individual Indian landowners who have a majority interest from granting the right-of-way. These commenters pointed to statutory authority at 25 U.S.C. 2218 for granting rights-of-way without tribal consent in tracts where the tribe owns less than a majority interest. A few commenters stated that there are specific statutes that allow granting and renewal of rights-of-way without tribal consent that the Department should rely upon to grant rights-of-way without tribal consent. Response: The proposed and final rules require tribal consent. See PR 169.102(b)(4), FR 169.107(a). Tribal consent for a right-of-way is required by statute at 25 U.S.C. 324. Because the regulations rely primarily on 25 U.S.C. 323–328, and not 25 U.S.C. 2218 or other statutes authorizing the granting of rights-of-way, tribal consent is required for any tract in which the tribe owns an interest, regardless of whether the tribal interest is less than a majority. Requiring tribal consent restores a measure of tribal sovereignty over Indian lands and is consistent with principles of tribal self-governance that animate modern Federal Indian policy. Comment: One commenter suggested clarifying that a tribe may require a more formal agreement with the rightof-way applicant than just providing consent. Response: The final rule clarifies in § 169.107 that the tribe may require a more formal agreement with the grantee than just providing consent. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Comment: A commenter stated that rights-of-way even on individually owned Indian land should require tribal consultation because the right-of-way use may interfere with, or otherwise impact, the tribe’s zoning and land use laws. Response: Tribes, as sovereigns, have inherent authority to regulate zoning and land use on Indian trust and restricted land within their jurisdiction, and the regulations require compliance with tribal laws relating to land use. See § 169.9. In addition, the final rule clarifies at § 169.102(b)(9) that the applicant must certify compliance with the tribe’s land use laws. Comment: One commenter stated that § 169.107 should state that remaindermen are bound by the consent of life tenants as successors in interest. Response: The provision at FR 169.107(b)(3) does not apply to life tenants and remaindermen because remaindermen are not successors in interest to life tenants. Comment: One commenter stated that applicants should not be required to obtain consent from landowners who have not lived on their lands in two or more years. Response: Landowners have the right to notice and consent regardless of whether they live on the land. Comment: A commenter asked that the rule clarify what qualifies as proof of consent. Response: The final rule clarifies that landowners’ consent must be written. Comment: One commenter stated that the rule fails to define how a tribe provides consent. Response: Tribes provide consent through a tribal authorization in accordance with tribal law. Comment: A tribal commenter asserted that there may be a joint BIAapplicant effort to establish a right-ofway, and stated that this joint effort is facilitated by provisions allowing BIA to grant the right-of-way without individual Indian landowner consent (where the owners are ‘‘so numerous that it would be impracticable to obtain consent’’), and to rely on an appraisal paid for by the applicant. Response: The final rule reflects that BIA is the trustee of the individual Indian landowners by establishing several factors that BIA must consider prior to granting a right-of-way without landowner consent and by establishing that third-party appraisals must meet certain requirements. See FR 169.107(b) and FR 169.114(c). In all circumstances, BIA will examine whether the grant of the right-of-way is in the best interest of the Indian landowners, and while BIA will defer, to the maximum extent PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 72509 possible, to the Indian landowners’ determination that the right-of-way is in their best interest, BIA may withhold the grant for a compelling reason, in order to protect the best interests of the Indian landowners. See FR 169.124. a. Consent To Survey Comment: One tribal commenter stated that the omission of a requirement to obtain tribal consent to survey tribal land is significant. One commenter noted the difficulty in obtaining consent on highly fractionated lands and stated that eliminating the requirement to obtain prior BIA approval for survey work will expedite planning for projects on these lands. Response: The proposed and final rules require landowner consent for surveys, including tribal consent for surveys of tribal land at § 169.101(b). In certain situations BIA may grant access to the land. See § 169.101(c). However, no BIA approval is necessary for access to survey. Comment: A commenter stated that the rule should allow applicants to survey without landowners’ permission if landowners are too numerous and BIA provides notice. Response: The final rule generally states that applicants must obtain consent from Indian landowners for access to survey; the statutory provisions regarding consent for rightsof-way do not apply because the applicant is seeking access that does not rise to the level of a legal interest in Indian land. Applicants should work directly with Indian landowners for permission to access their land to survey. b. ‘‘So Numerous’’ Comment: Several commenters opposed the provision allowing BIA to issue a right-of-way without the consent of the individual Indian owners if the owners would be so numerous that it would be impracticable to obtain consent. One commenter stated that the provision amounts to ‘‘administrative condemnation.’’ Regarding the thresholds the proposed rule provides on how many landowners add up to ‘‘so numerous’’ (i.e., 50 to 100 landowners where no one landowner owns greater than 10 percent, or 100 landowners), one commenter stated that there is no reason to define a threshold. One commenter suggested instead of identifying the number of landowners, that the rule should provide that it is impracticable to obtain consent when the tribe determines the project is vital to the tribe’s interests. Other commenters stated that the proposed rule sets the E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72510 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations baseline too low and said it would allow ‘‘steamrolling’’ by companies over individual trust allotments. A few commenters supported the proposed threshold for ‘‘so numerous.’’ One noted that the provision could be helpful in overcoming the challenges of significant land fractionation in the right-of-way context. Another stated that the threshold strikes an appropriate balance between the rights of the landowner and rights of the applicant. A few commenters stated that the proposed thresholds were too high. A few recommended lowering the threshold to 20 or 25 to 50 landowners, where none owns an interest over 10 percent, or 50 landowners and above otherwise. Another stated that the high threshold creates undue hardship and challenges to individual Indian landowners and tribes in granting rights-of-way on highly fractionated tracts. Response: The provision allowing BIA to issue a right-of-way where the landowners are ‘‘so numerous that it would be impracticable to obtain consent’’ is established by statute at 25 U.S.C. 324 and is permitted under the current regulations at § 169.3(c)(5). The proposed and final rules provide guidance by defining the baseline for what is ‘‘so numerous.’’ The Department believes that defining the baseline promotes transparency, clarity and certainty, and more closely meets Congress’s intent than a determination that obtaining consent is impracticable where the tribe determines it should be. The final rule establishes the baseline at 50 owners, as a simplified approach to what Congress defined as highly fractionated land in 25 U.S.C. 2218. The final rule attempts to balance the burdensome, yet vitally important, process of obtaining landowner consent with the Department’s duty to landowners as established by Congress. As noted above, the final rule clarifies that all landowners will receive notice of the proposed right-of-way. This notice will also include a request for consent. If landowners object to the right-of-way, in response to the notice, the Bureau will consider those objections in its review of ‘‘substantial injury.’’ See the next response. Comment: A few commenters suggested clarifying what constitutes ‘‘substantial injury’’ in PR 169.107(b) and in PR 169.108(c). One commenter suggested replacing this phrase with a determination of what constitutes the Indian landowner’s best interest. Response: The rule clarifies in both sections that the Department will look at the term, amount of acreage, disturbance to the land, type of activity, potential for environmental or safety impacts, and VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 objections by the landowners in determining whether the grant will cause ‘‘substantial injury’’ to the land or any landowner. The rule does not replace ‘‘no substantial injury’’ with a best interest determination because ‘‘no substantial injury’’ is statutorily required. See FR 169.107(b) and in FR 169.108(c). Comment: A commenter stated that the section should require BIA to make an effort to obtain owner consent and wait a specified period of time for owner response, and only then make the factual finding that it is impracticable to obtain consent. One stated that allottees should be entitled to 60 days or longer after receipt of a notice to object, another stated that 30 days is appropriate. A few commenters noted that the provision allowing BIA to issue a right-of-way without the consent of the individual Indian owners where the owners would be so numerous that it would be impracticable to obtain consent requires BIA to provide notice of the intent to grant the right-of-way to all owners at least 30 days prior to the date of the grant, using the procedures in PR 169.010 (FR 169.12). Response: The final rule now requires that the notice of intent be sent 60 days in advance and allow landowners 30 days to object to the grant. The notice must be sent by mail. Constructive notice is not adequate, even though constructive notice is less expensive, because each landowner is entitled to the opportunity to object to the future grant. See FR 169.107(b)(1)(ii). Comment: Another owner suggested the rule clarify that applicants may include in the initial notification that BIA intends to issue a grant within 30 days if consent is not obtained. Response: An applicant may, in its initial notice and request for consent, state that BIA may grant the right-of-way under FR 169.107(b) if consent is not obtained; however, BIA must send its own, separate notice if it determines that a grant without consent is appropriate under FR 169.107(b). In that case, BIA will send a notice of intent to grant the right of way 30 days prior to the grant. Comment: One commenter stated that requiring BIA to provide a 30-day notice to all landowners will delay grant of the right-of-way beyond the specified 60day period. Response: The final rule clarifies that if the applicant is relying on § 169.107(b) in lieu of providing a record of consent, it must include in its application a request for a grant without consent. See FR 169.102(b)(5). This allows BIA 30 days to review before providing the 30-day notice. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 Comment: One commenter stated that the rule should require the applicant to provide the right-of-way application and conditions and terms to the landowners, allow for the landowners’ review for several days, and then provide proof that it was given to the landowners. Response: The process suggested by the commenter is essentially what is required to obtain landowner consent. The rule requires proof of consent, but it is each individual’s responsibility to ask for time to review, if needed, and review the document to determine whether to provide consent. Comment: A few commenters stated that the rule should require the Department to grant a right-of-way if the necessary consents are obtained or if the conditions for a grant without consent (where landowners are ‘‘so numerous’’) are met. Response: The rule keeps intact the Secretary’s discretion to grant a right-ofway, rather than making it mandatory where consent is obtained because there are other factors (compensation, e.g.) that affect the Secretary’s decision to grant or not. c. Non-Consenting Tribe (PR 169.107(d)) Comment: Several commenters opposed the language in PR 169.107(d) stating that a right-of-way will not bind a non-consenting tribe. These commenters stated that the provision is contrary to other provisions of the rule and undermines tribal self-governments. Response: The final rule removes paragraph (d) because tribal consent for a right-of-way is always required under 25 U.S.C. 324. Comment: A telephone authority commenter stated that further clarification is required as to whether BIA gives permission for access or whether the allottee himself can give permission for a right-of-way. Response: In all cases, the Indian landowner may consent to access or grant a right-of-way across their land; however, notice to landowners is always required and landowners may seek the assistance of BIA. In certain limited circumstances, BIA may consent on behalf of a landowner, or grant a rightof-way without landowner consent d. Who Is Authorized To Consent (PR 169.108/FR 169.108) Comment: A commenter suggested restricting PR 169.108 to allow BIA consent only on behalf of the owners of minority interests. Response: The final rule does not restrict BIA consent to minority interests because this authority, exercised on a landowner-by-landowner basis, is separate and distinct from the E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations authority of BIA in FR 169.107(b) to grant a right-of-way where the landowners are so numerous. Comment: A commenter suggested adding a provision allowing BIA to consent on behalf of individual owners following a 90-day notice, as provided for in the leasing regulations. Response: The final rule does not add the requested provision because the provision in the leasing regulations is based in statutory authority applicable to leasing, rather than rights-of-way. Comment: One commenter requested an addition to allow tribes to consent on behalf of Indian landowners. Response: The final rule does not add the requested provision because the Department has not identified any legal authority for such a provision. Comment: A commenter stated that an attorney should never be authorized to consent on behalf of a landowner unless the attorney is operating under a power of attorney document. Response: The proposed and final rules state that the attorney must have been retained by the landowner ‘‘for this purpose,’’ meaning the landowner retained the attorney to provide consent. Comment: One commenter stated that PR 169.108(b)(5)(iii) could be interpreted to require specific language on providing consent to a right-of-way in the power of attorney document, and suggested the rule clarify that language such as ‘‘generally convey or encumber interests in trust land’’ or similar language would be acceptable. Response: The final rule adds this clarification. Comment: A few commenters suggested clarifying that the provisions in PR 169.108 apply to ‘‘individual Indian landowners.’’ Response: The final rule clarifies these provisions. Comment: One commenter stated that PR 169.107 and PR 169.108 allow BIA broad authority to assume control of an individual Indian landowner’s property interests as they pertain to rights-of-way and forego providing notice to that person. Response: The final rule implements statutory authority to consent on behalf of landowners, while providing limitations on when BIA may exercise that authority. The final rule also establishes that BIA will send notice to all individual Indian landowners of a right-of-way on their land. Comment: One commenter requested detail on what a ‘‘reasonable attempt to locate’’ in PR 169.108(c)(2) means. Another suggested the whereabouts of any landowner that does not respond to constructive notice within 60 days should be considered unknown. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Response: BIA will determine whether efforts qualify as a ‘‘reasonable attempt to locate’’ an individual Indian landowner as part of its determination as to whether the landowner’s whereabouts are unknown. These determinations are made on a case-bycase basis. Comment: A commenter stated that BIA should not have the right to consent on behalf of adults under a legal disability because the individual’s guardian should have responsibility for consent. Response: The provision allowing BIA the right to consent on behalf of individuals under a legal disability applies only where the person does not have a legal guardian. See 25 CFR 115.002, definition of ‘‘legal disability.’’ Comment: A commenter stated that, while the rule supports the autonomy of landowners, some landowners such as the elderly, disabled, and emancipated minors, may require additional assistance beyond mere consent. Response: In response to this comment, the final rule adds a new provision, at FR 169.106(c), that specifies that BIA will assist individual Indian landowners, upon their request, in negotiations with the applicant for a right-of-way. Comment: A commenter opposed BIA consenting on behalf of landowners, stating that the landowners should be entitled to make the decision but BIA has an obligation to ensure that the landowner’s decision is informed. Response: Overall, the rule implements statutory authority for BIA to grant a right-of-way with the consent of the landowners of a majority of the interests in a tract (i.e., without the consent of the landowners of a minority of the interests in the tract). See FR 169.107(b). This rule also allows BIA to consent to a right-of-way on behalf of individual Indian landowners only in limited circumstances, such as where an individual Indian landowner is under a legal disability. See FR 169.108(c). BIA may also grant a right-of-way without consent if the landowners are so numerous, and certain procedures are followed. See FR 169.107(b). These requirements all exist in the current rule, and are carried forward in the final rule. 2. Compensation Comment: Many commenters asserted that the rule should address the upper bounds of what tribes and individual Indian landowners can demand for compensation for a right-of-way. Several commenters stated their belief that compensation for rights-of-way on Indian land should be limited to fair PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 72511 market value, and no more. A few commenters requested that the rule require BIA to grant the right-of-way for an applicant that agrees to pay fair market value. Some commenters wanted compensation schedules, similar to those used for Bureau of Land Management (BLM) and U.S. Forest Service lands. Response: The statutory authority merely states that the Secretary must determine the compensation to be just. Indian landowners have the right to demand as much compensation as they deem appropriate, just as other private landowners do. As such, neither the proposed nor final rule limit the Indian landowners to fair market value, through a compensation schedule or otherwise. See the discussion below. Comment: One commenter stated that the rule should require that the right-ofway document state the amount of compensation. Response: The final rule does not add this as a requirement because, while the grant will normally reflect that the landowners received consideration, there may be circumstances in which it is not appropriate for the grant document to state the amount. a. Compensation—Electric Cooperatives and Utilities Comment: Several commenters, in New Mexico, especially, stated that the rule changes will have a significant impact by increasing already high easement costs, especially for those who receive their utilities from nonprofit electric cooperatives. Several electric cooperatives and others (Eastern Navajo Land Commission) requested that the requirement for compensation be waived for all rights-of-way for public infrastructure projects that serve the tribe or tribal members, including service lines. One suggested that nominal compensation should be approved because the cooperatives have a ‘‘special relationship’’ under PR 169.110(b)(2)(iii). These commenters reason that: • Through the act of joining a cooperative, the member typically agrees to provide access for the cooperative to build the necessary infrastructure at no cost; and • Cooperatives have no ability to absorb costs, but must pass them directly to consumers, such that higher compensation costs will translate to higher electricity costs for members. These commenters further stated that providing an exemption or otherwise limiting the compensation electric cooperatives must pay would ensure that the cooperatives can afford to continue providing service to E:\FR\FM\19NOR2.SGM 19NOR2 72512 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 cooperative members, including tribal members, and ensure that members are provided with electric power at an affordable price. One tribal commenter stated that exempting utility companies from compensation would conflict with tribal self-determination and self-governance. Public service commenters stated that they have an obligation to customers to ensure rates are fair and reasonable to all, that using projected income as the basis for valuation is cumbersome and unreasonable, and that the regulations should instead provide a certain and fair approach for all parties. One commenter stated that rights-ofway that serve tribal people should be different from those that serve non-tribal people and that right-of-way costs should be minimized to encourage the sustainability and expansion of telecommunications services to tribes. Response: The final rule provides for more flexibility in compensation for rights-of-way over and across individually owned Indian land. Specifically, the rule provides an exemption from the requirement to pay compensation on individually owned land if all the landowners agree, but does not provide the exemption for tribal land. The rule does not provide an exemption for compensation to tribes, but instead defers to the tribe if the tribe is willing to accept nominal compensation, no compensation, or alternative compensation. The rule also adds a specific exemption for utility cooperatives and tribal utilities on individually owned Indian land to encourage the provision of utility services on individually owned Indian land. Tribes may also allow for such an exemption on tribal land, on a case-bycase basis, but are not required to do so. See FR 169.112(b)(3)(iii). b. Compensation/Fair Market Value for Rights-of-Way (PR 169.109/FR 169.110 and PR 169.111/FR 169.112) Comment: Several commenters stated that the regulations should limit compensation to no more than fair market value, as determined by an appraisal or other valuation, to prevent ‘‘unrealistic’’ charges. One commenter stated that the proposed rule’s approach of allowing the tribe to determine compensation and waive valuation is ‘‘huge to industry.’’ Some of these commenters stated that the rule gives ‘‘unfettered, lopsided bargaining power’’ to tribes. They state that this is contrary to Federal law because the 1948 Act requires the Secretary to determine just compensation and that it could not have been Congress’s intent to allow tribes to demand compensation beyond ‘‘just VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 compensation.’’ One suggested imposing an upper limit on compensation of no more than 110 percent of the fair market value. Senator Tom Udall from New Mexico provided a petition stating that the absence of an upper limit for tribal governments to charge has resulted in more than $36M in easement fees for Jemez Mountains Electric Cooperative, Inc. (JMEC) members, and that both tribal and nontribal JMEC members will experience more than a 40 percent increase in their electric bills. Several commenters point to potential negative consequences of allowing tribes to negotiate for compensation beyond fair market value such as increased costs for customers and discouragement of future development on tribal lands. According to these commenters, it should be BIA’s role to ensure the certainty and reasonableness of compensation. Several tribal commenters supported the proposed rule’s provisions that require BIA to defer to tribally negotiated compensation amounts and valuation waivers. These commenters stated that these provisions are important to the sovereignty of tribal nations and their self-determination, streamline unnecessary appraisal processes, and recognize that the tribe consenting to the right-of-way is uniquely situated to assess the value of the compensation it is receiving. Some of these commenters stated that providing for non-monetary or alternative types of compensation, such as in-kind consideration, enables tribes to craft unique compensation agreements, and that allowing the form of compensation to change at different stages of development helps tribes achieve maximum benefits over the life of the grant, allowing tribes to negotiate amounts that serve best interests. As one tribal commenter pointed out, there may be circumstances in which a tribe values some other form of consideration more than fair market value, and that the rule’s provisions respect tribes’ ability to make those decisions. Response: Consistent with 25 U.S.C. 325, the United States’ general trust relationship with Indian tribes and individual Indians, and deference to tribal sovereignty, the final rule requires that the compensation granted to Indian landowners is just. The current regulations, at § 169.12, state that compensation is ‘‘not limited to’’ the fair market value, allowing tribes to negotiate for higher compensation. The final rule provides that BIA will defer to the tribe’s determination that compensation is in its best interest. Tribes have the right, through self- PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 governance and self-determination, to charge more than fair market value for their land. History has taught us that some tribal values are not readily measured or estimated by market valuations. BIA will defer to the tribe’s negotiated compensation amount, which may be an amount mutually agreed to with the applicant. Not only is it not BIA’s role to ensure that the compensation is predictable and reasonable for the applicant, BIA does not have the legal authority to limit the amount that Indian landowners charge for a right-of-way. The statute requires that the right-ofway be made with the payment of ‘‘such compensation as the Secretary of the Interior shall determine to be just.’’ 25 U.S.C. 325. This statute was enacted for the benefit of Indians, and as such, Interior is interpreting this language in favor of the Indians, to allow the Secretary to defer to tribes to determine that compensation beyond fair market value is ‘‘just.’’ Ramah Navajo School Board v. Bureau of Revenue, 458 U.S. 832, 846 (1982) (‘‘We have consistently admonished that Federal statutes and regulations relating to tribes and tribal activities must be construed generously in order to comport with . . . traditional notions of [Indian] sovereignty and with the Federal policy of encouraging tribal independence.’’) Comment: A tribal commenter stated that the rule should allow tribal governments to enter into operating agreements with utility companies to cover a ‘‘market area’’ of the company for a cooperative work relationship. Response: Tribal governments are free to enter into agreements with utility service providers. Comment: One commenter, the Village of Hobart, Wisconsin, stated that the municipality does not impose many of these requirements on tribal governments for rights-of-way across Village land, and suggested that the rule should add a ‘‘fair and equitable process for co-located governments to obtain right-of-way easements’’ without complications. Response: Municipalities and others who are co-located with tribal governments are free to negotiate with those tribal governments on compensation for rights-of-way on tribally owned land. Comment: A few commenters suggested that the rule either require compensation based on an objective valuation methodology, provide a procedure for the applicant to appeal to BIA for an administrative adjudication of value if the applicant and tribe cannot agree, or obligate the tribe to accept the fair market value determined E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 by the valuation if the applicant and tribe cannot agree. Response: Tribal law may address situations in which the tribe and applicant cannot agree. BIA may not grant the right-of-way without tribal consent. Where individual Indian landowners and the applicant cannot agree, existing mechanisms can address the situation. Comment: Several commenters opposed the proposed change to the current compensation standard (‘‘fair market value of the rights granted plus severance damages, if any, to the remaining estate’’) to a compensation standard that includes market value and may include additional fees, such as throughput fees, franchise fees, avoidance value, bonuses, or other factors. According to the commenters, this may create unwarranted expectations for individual Indian landowners, which could lead to a failure of landowners to agree with applicants on rights-of-way and could then lead to an increase in applicants’ use of eminent domain to acquire the right-of-way. The commenters note that this would be directly contrary to the goal of streamlining the right-of-way process. Others said all of these concepts are already incorporated in ‘‘market value’’ and identifying them individually suggests they should be added above fair market value. Others said that these hypothetical valuation methodologies are unfitting for land valuations. Response: The proposed and final rules clarify that Indian landowners may take into account additional fees when negotiating compensation. This rule does not address or impact the availability (or unavailability) of eminent domain. The Department does not agree that providing individual Indian landowners with a list of additional fees that may be considered in negotiating compensation, beyond fair market value, will lead to ‘‘unwarranted expectations’’ and ultimately increase the use of eminent domain; rather it helps ensure parity in negotiations between landowners and applicants, providing better information to improve the functioning of the market. c. Different Compensation Approaches for Tribal Land Than for Individually Owned Indian Land Comment: Several commenters advocated for requiring the same compensation on tribal land as on individually owned Indian land. A few commenters stated that ‘‘tribal land’’ should not include land in which the tribe owns a fractional interest, for the VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 purposes of PR 169.109, because otherwise, different compensation amounts could be required for different interests in the same tract. One commenter noted that this question is especially pertinent because there will be increased fractional tracts owned by tribes as a result of the Land Buy Back Program for Tribal Nations under the settlement in Cobell v. Salazar. A commenter stated that requiring tribes to accept the same terms of service that apply to the non-tribal areas does not deprive them of sovereign rights. Several commenters suggested the rule should allow BIA to defer to individual Indian landowners’ determination completely, just as the rule allows BIA to defer to tribes’ determinations. Another commenter stated that BIA oversight is necessary to prevent an Indian landowner from holding hostage an entity seeking to make improvements by demanding an unreasonable sum. Response: Consistent with 25 U.S.C. 324 and 325 and the United States’ general trust relationship with Indian tribes and individual Indians, the final rule treats tribal and individual Indian landowners differently, providing more deference to tribal landowners in the approval process and in the enforcement process. It is consistent with BIA’s trust responsibility to allow for different compensation amounts, as long as both the tribe and the individual Indian landowner receive compensation that is just. It is possible that different owners in the same tract could negotiate different compensation amounts; this is within the landowners’ rights and is possible even under the current rule. Requiring tribes to accept the same terms that apply to individual Indian landowners would undermine tribal self-determination and self-governance. Comment: A commenter stated that the proposed rule is paternalistic in that it would allow BIA to require fair market value even if all the landowners agree to waive it, if BIA determines it is in their best interest. Response: Even if all Indian landowners agree to waive fair market value, BIA will evaluate rights-of-way applications to determine whether the waiver is in their best interest in accordance with 25 U.S.C. 324. Consistent with the statute and the United States’ general trust relationship with Indian tribes and individual Indians, BIA will defer to the maximum extent possible to the landowners’ determination that the right-of-way, including any waiver, is in their best interest. See FR 169.124(b). Comment: One commenter suggested only the owners of a majority interest should be required to waive both PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 72513 valuation and just compensation, and questioned why the consent of all landowners is necessary. Response: We have determined that all non-consenting landowners are entitled to fair market value, as our trust responsibility is to all landowners, not just to those who have consented to the right-of-way. Comment: Several tribal commenters stated that PR 169.110 should specify that BIA may approve ‘‘alternative compensation’’ for individually owned land. Response: Alternative compensation is provided for in FR 169.118. d. Valuation (PR 169.111/FR 169.114) Comment: A few tribal commenters stated their support for not requiring a valuation if the tribe submits a tribal authorization, and deferring to the tribe’s decision as to whether to use the valuation or negotiate another amount. One commenter suggested allowing the applicant to request a valuation, even where the tribe does not. Response: The Department’s trust responsibility is to the Indian landowners; for this reason, BIA will obtain a valuation only at the tribe’s request. Comment: One commenter stated that BIA has not traditionally required the applicant to obtain the valuation, but proposed § 169.109 does. Response: Final § 169.114 applies only if the tribe does not submit a tribal authorization waiving the valuation and does not request a valuation in writing. Under these circumstances, a valuation must be completed to establish fair market value. The current regulations require that a valuation be submitted with the right-of-way application. In practice, BIA or the applicant may complete the application. Final § 169.110(c) clarifies that it does not require the applicant to provide the valuation, but simply requires that the applicant pay fair market value based on a valuation. Comment: A few commenters requested that the rule require BIA to prepare the valuations within 30 days of receiving the request. Response: The Office of the Special Trustee for American Indians (OST), rather than BIA, prepares valuations. OST is governed by a separate set of regulations and policies. Comment: A few commenters suggested that the applicant be required to deposit funds to be used for a valuation or otherwise pay for the valuation. Response: It is not feasible at this time for the Department to maintain accounts for applicants’ payment for valuations. E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72514 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations Comment: Several tribal commenters pointed out that Indian land is often undervalued or appraised at a low market value due to rural location, undeveloped condition, and the lack of a ‘‘real market’’ for land in Indian country. These commenters suggested accounting in the valuation of the land with the right-of-way, assuming the right-of-way enhances or will enhance the land’s value. One commenter pointed out that even land that has been subject to a right-of-way for a pipeline crossing is appraised as though the use has not been present, imposing an artificial restraint on the compensation owed to landowners. Other commenters stated that it is a fundamental precept of landowner compensation regimes that fair market value measures the economic impact of the right-of-way on the affected land, rather than compensating for economic benefit enjoyed by the right-of-way grantee. One commenter stated that market value should be based on the value of the land that is the subject of the transaction, and not on speculation regarding the potential future value of the pipeline. Likewise, tribal commenters supported listing potential adjustments to market value, such as a percentage of gross income, and additional fees, such as throughput fees, severance damages, franchise fees, avoidance value, bonuses, or other factors. Response: The final rule provides flexibility in two ways: (1) By allowing for any type of valuation of fair market value, as long as it meets Uniform Standards of Professional Appraisal Practice (USPAP) standards and Departmental policies; and (2) by listing factors that Indian landowners may wish to consider in negotiating for compensation either by ensuring they are included in the estimate of fair market value or by requesting that they be added. See FR 169.114(c). Identifying them individually does not necessarily suggest that they ‘‘should’’ be added above fair market value, but instead provides Indian landowners, our trust beneficiaries, with examples for types of fees might be included in compensation. Providing information to landowners improves the fairness of any negotiations. Comment: Several commenters requested changing ‘‘fair market value before any adjustments’’ to simply ‘‘fair market value’’ in PR 169.110, and deleting the provisions regarding adjustments ‘‘based on a fixed amount, a percentage of the projected income, or some other method’’ based on their concern that there is no legal standard on BIA’s calculation of payments owed. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Response: Final § 169.112(a) deletes reference to ‘‘adjustments’’ but includes the list of examples of fees that landowners may wish to seek in compensation negotiations. This provision also clarifies that compensation may be based on a fixed amount or another method. These provisions provide flexibility to negotiate for compensation and a formula for reaching that amount. Comment: A few commenters suggested the valuation should be based on the amount of land encumbered and the extent of encumbrance or acreage disturbed. Response: The amount of land encumbered, extent of the encumbrance, and acreage disturbed are all factors that the landowners may consider in negotiating compensation. e. Who Conducts Valuation Comment: Several tribal commenters opposed the proposal to allow applicants to hire their own appraisers because of concerns that the appraisers would have a conflict of interest and would undervalue the property. Some suggested requiring a separate, independent appraisal, landowner approval of the appraisal, or landowners’ own appraisal. One commenter expressed concern that the rule could allow an applicant to provide a valuation if BIA fails to provide one, but that doing so could undermine the landowners’ negotiations. Response: The rule requires that the valuation comply with USPAP and Departmental policies to ensure that the valuation meets independent quality standards. For example, the Departmental policies on valuations require that the person conducting the valuation meet certain qualifications and requirements. See 602 DM 1.6. Additionally, Departmental policies require anyone who wishes to rely on a third-party appraisal to first consult with the Department (in this case, BIA, who will refer the person to the OST Office of Valuation Services), to select a qualified certified general appraiser, and that OVS make all the appraisal assignment instructions. 602 DM 1.7C. BIA must approve the appraisal. Comment: One tribal commenter stated that if the tribe asks BIA to determine fair market value, the tribe should have the opportunity to choose the appraiser and the valuation method. Response: The tribe is not bound by the valuation conducted by BIA and may choose to obtain its own valuation through a different method. Comment: A few commenters stated that valuations from other Federal agencies should not be accepted because PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 they could result in an entirely different valuation than would be found by BIA, BIA would not know whether the appraisal is adequate unless it understands the context in which the valuation was conducted, and BIA would possess broad and unchecked discretion in approving or rejecting. Response: BIA will continue to review valuations conducted by other Federal agencies before approving their use to ensure sure the valuations are adequate for the rights-of-way context. If parties disagree with BIA’s reliance on a valuation, they may appeal a decision to grant a right-of-way under 25 CFR part 2. f. Method of Valuation Comment: Several commenters stated that the rule should limit valuation methods to standard practices, such as USPAP, to provide a consistent methodology that would better streamline the rule. A few commenters stated that the proposal to allow BIA to rely on any ‘‘other appropriate valuation method’’ provides BIA too much discretion, and is too ambiguous and broad to provide guidance or the ability to challenge BIA’s determination of ‘‘market value.’’ Response: The rule allows for market analyses and other valuation methods in order to provide flexibility to the parties to obtain a valuation as quickly as possible and to employ the method they deem appropriate for their negotiations. The rule balances this flexibility with requirements that the chosen method must comply with USPAP and Departmental policies to ensure that the valuation meets independent quality standards and that the person conducting the valuation meet certain qualifications and requirements. See, e.g., 602 DM 1.6. Comment: A commenter suggested the rule should require BIA to disclose to the applicant the valuation method that was used to determine fair market value. Another commenter suggested the rule should require BIA to provide the landowners with a copy of the valuation method within 10 days of receipt of a written request. Response: BIA will notify the applicant of the fair market value established by the valuation and will provide the landowner with the valuation for the purpose of assisting in negotiations. g. Alternative Compensation Comment: A few commenters stated that allowing for alternative valuation methodologies inserts uncertainty into the right-of-way process. One noted that this approach could result in each party E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations completing and submitting valuations that are vastly different, but equally valid under the proposed rule. These commenters advocated for requiring a consistent approach for valuations to determine fair market value to streamline the process, and suggested revisions to state that BIA will only use a valuation in accordance with USPAP standards. Response: The final rule allows for the use of alternative valuation methods as long as they have been prepared in accordance with USPAP (or a valuation method developed by the Secretary under 25 U.S.C. 2214) and complies with Departmental policies regarding appraisals, or has been prepared by another Federal agency. See § 169.114(c). This provision allows Indian landowners more flexibility in negotiating for compensation, while still requiring that the valuation meet USPAP standards and Departmental policies. Comment: One commenter stated that no method of valuation for reservationwide or systemic use should be used until the Department provides prior actual notice to landowners, publication of notice in the Federal Register, and in media outlets. Response: The rule allows for reservation-wide valuations if the valuations meet the requirements of § 169.114(c). If landowners disagree with this type of valuation or any valuation that BIA relies upon, the landowners may appeal BIA’s decision on the right-of-way under 25 CFR part 2. mstockstill on DSK4VPTVN1PROD with RULES2 h. Compensation for Renewals Comment: Some commenters stated that the rule should impose compensation limits for renewals of rights-of-way. The commenters state that rising renewal charges burden all utility customers, including reservation customers, and bear no relation to property values. One commenter stated that in its experience over the last 10 years, its rights-of-way have been assessed based on the appraised fair market value of the Indian lands over which the rights-of-way are located, rather than the value of the right-of-way itself, and that the assessed renewal fees were 10 times the appraised fair market value. Several electric cooperative commenters expressed concern that they will have to renew rights-of-way and will have to pay amounts in excess of fair market value, creating a conflict for members off the reservation. Response: The terms of the existing right-of-way govern renewals. The new rule encourages parties negotiating for a VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 right-of-way to also negotiate terms for a renewal. 3. Payment (PR 169.112/FR 169.115) Comment: A few energy company commenters advocated for lengthening the time frame for requiring payment of the right-of-way from 10 days after the right-of-way is granted to 30 days. These commenters stated that more time may be needed to process significant payments. Other commenters suggested using the grantee’s receipt of the grant as the starting point for the time period because the grantee may not even know the right-of-way has been granted before the 10 days expires. A few commenters stated that payment should be made at the time the application is filed. Another stated that payments should not be made until the right-of-way is determined to be valid. Response: The final rule adds that the grant may establish a different payment schedule; this allows the parties to negotiate for a payment schedule that works for their circumstances. See § 169.115(a). This approach retains the default, to strike a balance between those wanting payment at the time the application is filed and those wanting a longer period of time, to ensure prompt payment where a different payment schedule is not negotiated. Rights-ofway go into effect, and are valid, with the BIA’s grant. The final rule changes the default due date to be the date of the grant because BIA is bound by the 60day deadline for issuing a decision on the right-of-way. Once the applicant receives confirmation that BIA has received a complete application, the grantee will have up to 60 days to provide payment. Comment: Several commented on payment structures. A tribal commenter recommended allowing each landowner to select how he or she wishes to receive compensation, whether in lump sum or annual payments or another payment structure. The commenter notes that BIA currently requires all landowners to be paid in the same manner, and that some landowners may prefer different structures. Another tribal commenter stated that the rules will add complexity by allowing different payment structures, adjustments, etc. Response: The rule adds flexibility by allowing for different payment structures, to allow the parties to use the structure that best meets their needs; however, the rule does not allow different payment structures for different landowner interests in the same tract because determining and tracking payments would be overly burdensome. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 72515 Comment: One commenter opposed the provision prohibiting payments more often than quarterly, stating that tribes with direct pay should be able to set any payment schedule without such a restriction. A commenter stated that an applicant should not be allowed to pay quarterly or even yearly, and rightsof-way should not be treated the same as payments for leases. Response: The final rule retains the possibility for quarterly or yearly payments, to allow landowners the flexibility to negotiate for a frequency of payments that meets their needs. The final rule, at § 169.115(b), limits the frequency of payments to no more frequent than quarterly, but only if the payments are made to BIA. This allows payments made by direct pay to be made more frequently, if appropriate. 4. Direct Pay (PR 169.113/FR 169.116) Comment: Several energy companies and electric cooperatives objected to allowing for direct pay, saying that it shifts BIA’s responsibility to the grantees, and that it may be difficult in practice, could be burdensome to grantees, would slow the payment process, and would be less secure. Two tribal commenters also expressed concern with allowing direct payments to landowners and stated they should go through BIA for better tracking. A few other commenters also expressed concern that direct pay would expose the landowner’s revenue to liens and garnishments. One commenter stated that it would require grantees to issue IRS forms to all landowners. One commenter stated that owners throughout the life of the right-of-way may be different, so direct pay authorization should be renewed every five years. Some commenters supported direct pay and stated that the grantee should have the option of paying BIA instead of directly paying the landowners. A few stated there should be no limit on the number of owners for direct pay and that it should be an option for each landowner. One commenter suggested direct pay should be available to tribes only. A few commenters asked why the accounts must be ‘‘encumbered.’’ Response: The final rule corrects a typographical error in the proposed rule, to clarify that direct pay is available only if the account is ‘‘unencumbered’’ rather than ‘‘encumbered.’’ Otherwise, the final rule retains the provisions for direct pay, making it available to both tribes and individual Indian landowners. The final rule establishes that Indian tribes may choose direct pay, but direct pay is E:\FR\FM\19NOR2.SGM 19NOR2 72516 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations available to individual Indian landowners only under limited circumstances, such as circumstances in which there are 10 or fewer owners. This approach promotes selfdetermination and self-governance for tribes and allows some flexibility for individual Indian landowners, while minimizing the burden on grantees. Comment: BIA should be required to assist landowners in the event of nonpayment beyond the issuance of a letter, to better fulfill fiduciary duties. Response: If the grantee does not cure the violation in time, following the notice of violation, BIA may take the enforcement actions in FR 169.405. mstockstill on DSK4VPTVN1PROD with RULES2 5. Method of Payment (PR 169.114/FR 169.117) Comment: A few commenters suggested clarifying that this section applies only where payments are made to BIA, but that tribes may negotiate other methods of payment. Response: The final rule clarifies that § 169.117 applies only where payments are made to BIA and adds that, if payments are made by direct pay, the grant will specify the method. 6. Non-Monetary and Varying Types of Compensation (PR 169.115/FR 169.118) Comment: Several electric cooperatives requested that the service they provide be considered the compensation. Response: The final rule adds an exemption from compensation requirements for utility cooperatives, establishing a presumption that the service or infrastructure the cooperatives provide to their members is ‘‘just’’ compensation if it directly benefits the Indian land. Comment: A tribal commenter supported the provisions allowing for non-monetary or other types of compensation, stating that the provisions are important to allow landowners to negotiate. Some commenters opposed allowing alternative forms of compensation because, they claim, it unnecessarily complicates negotiations and payment calculations, and suggests forms that are not appropriate in competitive right-ofway markets. One commenter stated that in-kind compensation should not be allowed for individual landowners because of the potential for abuse. Response: These provisions, as well as other compensation provisions, are intended to increase flexibility for Indian landowners to negotiate for terms that best work for their needs. Comment: A few tribal commenters suggested requiring a tribal authorization, rather than a signed VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 certification, to establish that it will accept varying types of compensation at PR 169.115. Response: Tribes may choose to provide a tribal authorization (meaning a tribal resolution or other document approved by the tribal governing body), but BIA will require only a certification (meaning a statement signed by the appropriate tribal official or officials). This is intended to reduce any delays that may be associated with passing a tribal authorization. Comment: A few tribal commenters requested clarifying that the types of compensation are examples, rather than a limited list. The commenter also suggested adding ‘‘payments adjusted by a fixed amount and payments tied to an index’’ to the list of varying types of compensation available at specific stages of the right-of-way. Another commenter requested clarifying whether access to broadband services would be considered in-kind compensation. Response: The final rule states that the types of compensation include, but are not limited to, the examples listed. The examples listed are not exhaustive and may include payments adjusted by a fixed amount and payments tied to an index. In-kind compensation may include the provision of broadband services. Comment: A commenter requested simplifying this section to read simply that all forms of compensation and varying types of compensation are allowable. Response: While the regulation would be simpler in stating that all forms of compensation and varying types are allowable, the final rule continues to provide examples to assist Indian landowners in identifying potential options. 7. Issuance of Invoices (PR 169.116/FR 169.119) Comment: One commenter stated that BIA should be required to issue invoices. Response: BIA may issue invoices at the request of Indian landowners, but the payment is due at the times specified in the grant, whether there is an invoice or not. 8. Compensation Reviews or Adjustments (PR 169.117/FR 169.111 and FR 169.113) Comment: One commenter stated that the process for review and adjustment of compensation is unclear. A few tribal commenters supported reviews less frequently than every 5 years, especially if the compensation exceeds the fair market value of the right-of-way. Another tribal commenter stated that 5 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 years is appropriate so that tribes can adjust rent consistent with economic conditions of the time period. Some commenters stated that no periodic review or adjustment should be required unless the Indian landowners negotiate for such reviews or adjustments. Commenters also requested exceptions to the review requirements when the grant provides for payment greater than market value or the adjustment results in additional compensation to the landowner. Response: The rule provides that tribes may negotiate for reviews and adjustments at any frequency. See FR 169.111. For individually owned Indian land, the rule establishes a default requiring reviews every 5 years, but provides several exceptions to allow the parties to avoid the reviews if appropriate. For example, if payment for the right-of-way is in a lump sum, then no review is required. See FR 169.113(a). The Department has determined that including a default requirement for compensation reviews and adjustments is necessary, especially in the context of rights-of-way for extended periods, to ensure the trust beneficiaries continue to receive compensation that is just. Even if the Secretary initially determines that the established periodic compensation is just, circumstances and market conditions may change, requiring an adjustment to the compensation. Comment: Several commenters expressed concern that the same project could have different review processes if it crosses both tribal land and individually owned land, frustrating the goal of ‘‘streamlining’’ the regulations. These commenters stated that the rule for periodic review and adjustment should be the same for tribal land as for individually owned land. Response: The approaches to tribal land and individually owned Indian land are necessarily different because of the requirements of the statute and because the Department must provide greater deference to tribes in support of tribal self-determination and selfgovernance. Tribal governments may have broader interests than ordinary individual landowners. Comment: One commenter asked why the grantee’s consent is not required, but the landowner’s consent is required, for an adjustment. A few commenters stated that requiring landowner consent to an adjustment would be burdensome and unnecessary. Response: The statute, at 25 U.S.C. 324, imposes upon Interior no responsibilities to the right-of-way grantee. For this reason, consistent with the statute and the United States’ E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations general responsibility to Indian tribes and individual Indians, the default rule is that only the landowner’s consent is required for adjustments. However, the rule allows the parties to negotiate for the grant to provide an approach different from the default approach for reviews and adjustments, including an approach in which landowner consent would not be required for certain adjustments (e.g., if the adjustment results in increased compensation). mstockstill on DSK4VPTVN1PROD with RULES2 9. Other Payments Required (PR 169.118/FR 169.120) Comment: A commenter suggested qualifying the statement in this section saying the grantee must pay these amounts to the appropriate office by adding ‘‘if applicable’’ to address that the grantee will not be in violation of the grant pending any challenge on whether the grantee owes the additional fees. Response: The final rule adds the suggested phrase ‘‘if applicable.’’ BIA will consider the status of the challenge of any such payments in determining how to address a violation of the grant under FR 169.404. Comment: A few tribal commenters suggested adding that the tribe may charge additional fees with the application for use of the land. Another tribal commenter suggested clarifying that such fees may include, but are not limited to, tribal taxes and other fees and payments required under tribal law, and excluding charges imposed by the State or political subdivision of a State. Response: The final rule clarifies that fees may also be associated with the application for use of the land at FR 169.120(a). Taxes and fees required under tribal law, and charges imposed by the State or political subdivision of the State are addressed in FR 169.011. Comment: Several commenters stated that grantees should not be required to pay damages associated with the survey, construction, and maintenance of the facility in addition to compensation because the fair market value would account for any damage, and the rightof-way grant includes provisions for reclamation and restoration as a condition negotiated by the parties. The commenter stated that if the ‘‘damages’’ refers to those beyond customary and reasonable damages for the authorized activity, the rule should so clarify. A few commenters suggested deleting this section. One stated it raises questions as to what happens if the grantee refuses to pay and who will calculate the damages. Another stated that it could significantly increase the cost of acquiring rights-of-way on Indian land VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 and may, ultimately, impede further development. Response: Final § 169.120 clarifies that, in addition to or as part of the compensation, the grantee will be required to pay for damages incident to the survey of the right-of-way or incident to the construction or maintenance of the facility for which the right-of-way is granted. The grantee may choose to negotiate this as part of compensation or bonding or alternative form of security. This section affords the parties the flexibility to account for damages in the manner they choose—as part of the base compensation or additional fees—but reinforce that it is the grantee’s responsibility to pay for damages. 10. Condemnation Comment: A few commenters requested provisions regarding when Indian land may be condemned for a right-of-way and noted that the current § 169.21, regarding condemnation, was not included in the proposed rule. Response: These regulations implement the Department’s statutory authority for granting rights-of-way across Indian land. The current rule’s condemnation section required reporting of facts relating to condemnation to BIA, to safeguard the interests of the Indians. The proposed rule deleted this section because it is not directly related to the rights-of-way approval process. The current rule does not provide guidance for condemnation of Indian land. The statutory provisions at 25 U.S.C. 357 govern this process. 11. Process for Grant of Right-of-Way a. Deadlines for BIA Decisions Comment: A few tribal commenters supported the new deadlines for BIA to issue decisions on rights-of-way, stating that they are important to eliminate delays and promote economic development, will help speed the processing of applications, and provide applicants with more predictable timeframes. A few tribal commenters stated that the option for BIA to extend the timeframe for an additional 30 days should be deleted, because it may become the norm, making the timeframe a 90-day, rather than 60-day, period. Other tribal commenters requested reducing the timeframe to 30 or 20 days, stating that 60 days appears excessive for rights-of-way. A tribal utility authority requested a special expedited path in which the applicant or tribe pays a reasonable fee that would reduce the decision timeframe to 30 days. One commenter requested increasing the PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 72517 deadline to 120 days following receipt of the complete package, but specifying that only one 30-day extension is permitted. Others stated that the extension period should be shortened. Response: The final rule continues to require a BIA decision on the right-ofway within 60 days, with the option for a 30-day extension. We did not make any changes to the timeline in response to comments because these timelines are intended to be the outer bounds of the time it will take for BIA review of rightsof-way and are intended to cover all rights-of-way, from the simplest to the most complex. Comment: Several tribal commenters requested that rights-of-way be deemed approved if BIA fails to take action within 60 days because existing remedies for inaction can be expensive and time-consuming and may delay critical tribal projects for which rightsof-way are needed. Other commenters, such as the Western Energy Alliance, also requested that applications be deemed approved, but suggested a timeframe of 120 days. Response: The final rule does not incorporate a ‘‘deemed approved’’ approach for new rights-of-way because BIA is statutorily required to review and issue a determination of whether to grant rights-of-way over and across Indian land. Comment: Several commenters requested that a fixed deadline be inserted rather than requiring BIA to ‘‘promptly’’ notify an applicant whether the application is complete at PR 169.119(b) (FR 169.123(b)). These commenters noted that the timeline for BIA review of the application does not begin until after BIA confirms receipt of the complete application. Response: The final rule retains the term ‘‘promptly’’ in order to allow the necessary flexibility for BIA personnel, while conveying that such notification should occur as soon as feasible. Comment: A few tribal commenters requested that the rule require tribal consent be provided before the clock starts for approval of the right-of-way. Response: The rule specifies that the application must include the record of consent. See proposed and final § 169.102(b)(5). b. Process for Granting Right-of-Way (PR 169.119/FR 169.123) Comment: A tribal commenter stated that PR 169.119(a) should include a reference to cultural protection requirements. Response: Final § 169.123(a)(2) adds a reference to cultural protection requirements as well as historic preservation requirements. E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72518 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations Comment: A few tribal commenters requested that PR 169.119 require the application package to include a completed tribal application and/or agreement with the tribe. One commenter stated that the applicant should be required to provide the tribe with a copy of the application upon filing. Response: The tribe may require its own application or agreement to determine whether to grant consent. Likewise, the tribe may require a copy of the application as a condition of its consent. Record of consent is a required component of the application under the final rule, so the final rule does not separately require a tribal application. Comment: A commenter requested changes to PR169.119 to delete the provision saying grantees must satisfy tribal ‘‘land use’’ measures and mitigation (citing Brendale v. Confederated Yakima Indian Nation, 492 U.S. 408 (1989)). Response: The final rule retains the provision saying BIA may require modifications or mitigation measures necessary to satisfy tribal land use requirements. The case cited by the commenter is inapplicable because it applies to fee land, whereas these regulations apply to trust or restricted land. Comment: A few commenters requested clarification of PR 169.119(d) regarding who receives copies of grants and of denials. One commenter stated that BIA should be required to provide the grant within 10 days of the request. Response: The final rule addresses a typographical error to clarify that only the denial of an application is automatically provided to all parties. The final rule does not establish a timeframe in which BIA must provide a copy of the grant, though it is expected that BIA will respond within 10 days. Comment: A tribal commenter recommended a process similar to the one contained in the leasing regulations to allow approval timelines to proceed while NEPA compliance processes are underway. Another commenter requested more clarity about how the process for approval is integrated with the schedule for BIA compliance with NEPA and other environmental requirements. Response: Information necessary to facilitate BIA’s compliance with NEPA must be included in the application. The final rule does not add the provision set forth in the leasing regulations providing for a formal ‘‘acknowledgment review’’ but BIA may provide a review of documentation pending preparation of NEPA documentation and any valuation to VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 provide greater certainty as to the viability of a right-of-way project pending completion of the application. c. BIA Decision To Grant a Right-of-Way (PR 169.120/FR 169.124) Comment: A commenter stated that the description of when BIA will grant a right-of-way should be more specific. Another commenter stated that this section has the potential to create problems for applicants because, as a general rule, a right-of-way is in the best interest of the applicant versus the landowner. A commenter stated that this section should give special consideration for rights-of-way for landowners who otherwise would have no viable option for obtaining critical utility service. Response: The section establishing the criteria BIA will consider in determining whether to approve a grant is necessarily general to ensure applicability to all types and circumstances surrounding right-of-way applications. While the right-of-way will likely benefit the applicant because the applicant has some need for the right-of-way, BIA will look to compensation and other factors to determine whether the grant is also in the best interest of the Indian landowner. The final rule provides special consideration if the right-of-way provides utility service, as explained above. Comment: A few commenters stated that the BIA should be required to defer to the tribe’s determination fully, rather than ‘‘to the maximum extent.’’ One tribe supported the language that BIA will defer to the tribe absent a ‘‘compelling reason’’ not to defer, and stated that this is a clear improvement over the existing rule. Other commenters stated that BIA should not restrict itself in denials, and that the language implies that denials are institutionally disfavored. A few commenters suggested listing conditions or events that could serve as a basis for not deferring to Indian landowners’ determination that a grant is in their best interest or that could serve as the basis for denial. One tribal commenter suggested a separate provision stating that the deference requirement applies to all aspects of the right-of-way process unless deference clearly violates Federal law. Response: Under this rule, BIA will generally defer to the tribe’s determination. The phrase ‘‘to the maximum extent’’ is included to allow for those exceedingly rare situations in which BIA cannot accord full deference while meeting its trust responsibility. The language attempts to provide PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 greater certainty to applicants that, if they comply with legal and regulatory requirements, including obtaining landowner consent, BIA will generally approve the grant (absent a ‘‘compelling reason’’ or finding that the grant is not in the best interest of the Indian landowners). Compliance with legal and regulatory requirements is a prerequisite to BIA approval. The final rule does not list conditions or events that could serve as the basis for disapproval because the ‘‘compelling reason’’ and ‘‘best interest’’ determinations are fact-specific. Comment: A few tribal commenters stated that the rule should require the tribe to concur in a BIA determination regarding an Indian landowner’s best interest, because the tribe should determine the best interests of its members. Response: The rule does not require tribal concurrence in BIA’s best interest determination for individual Indian landowners. The tribe’s relationship with its members is beyond the scope of this regulation. Comment: A commenter requested deletion of the provision in PR 169.120(d) allowing BIA to issue separate grants for one or more tracts traversed by the right-of-way because separate grants would result in cumbersome management, impact bonding requirements, and complicate compliance with other regulatory requirements. This commenter stated that one right-of-way grant should be issued for all tracts traversed by the right-of-way. Response: BIA currently has the discretion to grant either one right-ofway for all of the tracts traversed by the right-of-way, or issue separate grants. This provision merely makes explicit that BIA has this discretion because there may be circumstances in which it would be less burdensome for BIA to issue separate grants. d. Contents of the Grant (PR 169.121/FR 169.125) Comment: A few tribal landowners suggested requiring the grant to incorporate conditions and restrictions not just in consents, but also in any tribal application and agreement between the tribe and the applicant. Response: The tribe is free to include any conditions it wishes in its consent, which may incorporate conditions and restrictions in its tribal application and agreement. Comment: Several tribal commenters stated that PR 169.121 should clarify that tribal jurisdiction is preserved and that the grant itself should specify that tribal authority is preserved. A commenter stated that the grant should E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations include a statement that the tribe will have reasonable access to the subject lands to verify grantee’s compliance with any of the tribe’s conditions of consent and to protect public health and safety. Response: The final rule includes the suggested provisions at FR 169.125(a) and (c)(1). Comment: A tribal organization suggested the rule should state that the landowners reserve all uses of a rightof-way for any purpose other than the purpose stated in the grant and that the landowners may consent to future grants for those uses if they do not unreasonably interfere with the grantee’s authorized use of the right-ofway. Response: The landowner necessarily reserves all uses and rights that it does not convey. The landowner may consent to rights-of-way or agree to leases for such uses that meet the requirements in FR 169.127 or 25 CFR part 162, respectively. Comment: Several commenters stated that the requirement to ‘‘restore’’ the land to the original condition at PR 169.121(b)(3)(iii) and (ix) is difficult, if not impossible, and that reclamation of the land is a more reasonable standard consistent with other regulatory schemes. A tribal commenter stated that it has difficulty obtaining the agreement of grantees to restore. Several commenters stated that the restoration should not be ‘‘as nearly as may be possible’’ but instead should require use of ‘‘best efforts.’’ Another commenter stated that the provision requiring restoration ‘‘as much as reasonably possible’’ should instead read ‘‘as much as possible’’ and should be consistent with the earlier provision requiring restoration. Response: The current regulation requires that the applicant stipulate that it will ‘‘restore the lands as nearly as possible to their original condition upon completion of construction the extent compatible with the purpose for which the right-of-way was granted’’ and ‘‘that upon revocation or termination of the right-of-way, the applicant shall, so far as is reasonably possible, restore the land to its original condition.’’ Current § 169.5(d) and (i). The proposed rule included substantively the same provisions, requiring the grantee to ‘‘restore the land as nearly as may be possible to its original condition, upon the completion of construction, to the extent compatible with the purpose for which the right-of-way was granted,’’ and ‘‘restore [the] land to its original condition, as much as reasonably possible, upon revocation or termination of the right-of-way.’’ PR VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 169.121(b)(3)(iii) and (ix). The final rule retains the requirement for restoration as the default but allows the parties to negotiate for reclamation or some variation of the standard for restoration provided in the regulations, if appropriate, in order to address comments that restoration to the land’s original condition may not be possible in all circumstances. Comment: An energy company commenter stated that the regulation should allow for abandoning natural gas pipelines in place where doing so would be less expensive and create less risk of damage to resources. Response: As discussed in the prior response, the parties may negotiate for alternatives to restoration of the land to its original condition, if appropriate. Comment: A tribal commenter stated that PR 169.121(b)(3) should state that the grant must require the grantee to perform soil conservation and weed control, and prevention and suppression of fires, as required by current 169.5. Response: The final rule encompasses soil conservation in its requirement to ‘‘not commit waste’’ and encompasses weed control, and prevention and suppression of fires in its requirement to ‘‘clear and keep clear’’ the land within the right-of-way. Comment: A few tribal commenters requested that the grantee be required to notify the tribe, in addition to BIA, of the grantee’s address at all times. Response: The final rule adds at § 169.125 a requirement for the grantee to notify the tribe, for grants on tribal land, of the grantee’s address. Comment: Several tribal commenters requested adding a requirement for the grantee to inform BIA and the tribe of any filing of bankruptcy or receivership and require the grantee to demonstrate its financial capacity to carry out the responsibilities under the right-of-way grant. Response: The final rule adds a requirement that the grantee inform the BIA and tribe, for tribal land, if it files for bankruptcy or is placed in receivership. Tribes may also ask for additional documents to demonstrate financial capacity, as a condition of consent. Comment: One commenter stated that the tribe should evaluate and approve any ground-disturbing activity because, in the past, significant events such as oil spills have left landowners with no authority to impose corrective action. Response: The tribe may enact a law requiring tribal approval of any grounddisturbing activity outside of the BIA approval process for rights-of-way. Comment: One commenter noted that PR 169.121, stating that the grantee has PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 72519 no right to any of the products or resources of the land, may conflict with some existing grants issued under legislation other than 25 U.S.C. 323– 328. Response: The provisions will be included in all new grants issued. If there is an existing grant under legislation other than 25 U.S.C. 323– 328, FR 169.125 will not apply unless and until a new grant is issued. Comment: Tribal commenters stated that PR 169.121 should be expanded to include cultural items and resources and to include a statement requiring activity under the grant to cease if historic properties, archaeological resources, human remains, or other cultural items are encountered. Response: The rule includes a provision to address cultural items and resources. See FR 169.125(c)(4). Any archaeological resources, human remains, or other cultural items recovered on Indian land are the property of the Indian landowner or tribe. 43 CFR 7.13; 43 CFR 10.6. Comment: A tribal commenter requested that the rule specify that tribes can initiate enforcement actions for violations of tribal law. Response: The final rule, by clarifying that the tribe retains jurisdiction over the land subject to the right-of-way, indicates that the tribe may initiate enforcement actions for violations of tribal law. e. Preference for Employment of Tribal Members Comment: Several tribal commenters stated their support for the provision at PR 169.122, allowing grants to include the tribe’s preference for employment of tribal workers, as provided by tribal law. One of these commenters noted this affirmation of tribal employment preference laws helps increase tribal employment and eradicate discrimination. A few tribal commenters noted that tribal law may require a preference even if the grant does not specify it, and therefore requested that the regulation note that failure to specifically reference the requirement does not excuse compliance. Another tribal commenter requested identifying specific areas in which the preference is permitted, such as preference in employment, subcontracting and use of the right-of-way. Several non-tribal commenters stated their objections to this provision as an ‘‘unreasonable interference in hiring practices’’ and ‘‘unrelated to easement tasks.’’ Others stated their concerns with this provision’s interplay with applicable labor laws and agreements (e.g., requirements to use unionized E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72520 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations labor, contract bidding requirements). Some asked for more specification (e.g., what percentage would be required, what qualifications are required) and exclusions (e.g., for part-time positions, for grants over tribal land only). A few of these commenters requested edits to allow for preference to Indians generally. Response: Each tribe may establish requirements for employment preferences for tribal members; applicants should refer to tribal law to identify percentages and other information such as Tribal Employment Rights Ordinances. Tribe-specific employment preferences as provided in these regulations are based on political classification, not based on race or national origin. They run to members of a particular federally-recognized tribe or tribes whose trust or restricted lands are at issue and with whom the United States holds a political relationship. These preferences are rationally connected to the fulfillment of the Federal Government’s trust relationship with the tribe that holds equitable or restricted title to the land at issue. These preferences also further the United States’ political relationship with Indian tribes. Tribes have a sovereign interest in achieving and maintaining economic self-sufficiency, and the Federal Government has an established policy of encouraging tribal self-governance and tribal economic self-sufficiency. A tribespecific preference in accord with tribal law ensures that the economic development of a tribe’s land inures to the tribe and its members. Tribal sovereign authority, which carries with it the right to exclude non-members, allows the tribe to regulate economic relationships on its reservation between itself and non-members. See, generally, Equal Employment Opportunity Commission v. Peabody Western Coal Company, 773 F.3d 977 (9th Cir. 2014) (upholding tribal preferences in leases of coal held in trust for the Navajo Nation and Hopi Tribe, but also citing with approval the use of such preferences in business leases). These regulations implement the established policy of encouraging tribal selfgovernance and tribal economic selfsufficiency by explicitly allowing for tribal employment preferences. If there is a reason that the applicant is not able to comply with tribal laws regarding employment preferences, the applicant may negotiate with the tribe on this matter when negotiating for the tribe’s consent. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 12. Process for Rights of Way Applications Within or Overlapping Existing Rights of Way, or ‘‘Piggybacking’’ (PR 169.123/FR 169.127, 169.128) Comment: Several tribal commenters supported the proposed provision clarifying whether a new right-of-way is required for use within or overlapping an existing right-of-way. Many of these noted that there have historically been many unauthorized uses of rights-ofway, through unlawful ‘‘piggybacking,’’ on Indian land. Examples they provided included utilities using a right-of-way established for one utility use (e.g., a water line) for a different utility use (gas pipeline). Some suggested strengthening this section to include criteria allowing piggybacking only where it directly benefits and serves the tribal community. A few suggested allowing only uses specified in the grant, and deleting the allowance for ‘‘uses within the same scope’’ as too broad and having the potential to be exploited by grantees. Some of these tribal commenters stated that the default should prohibit piggybacking, unless the Indian landowners choose to include uses within the same scope in a particular grant. Several commenters argued that this provision should be deleted in its entirety. Those opposed to the provision requiring a new right-of-way stated that it ‘‘immensely and unnecessarily burdens applicants whose rights-of-way would not impede the existing facilities and existing right-of-way, amounts to double and triple charging for the same right-of-way, and should not be required if the new use is permitted by applicable law. A few tribal commenters stated that the provision should specify that a new right-of-way is required to enlarge or expand the right-of-way, such as when a different type of service will be installed or there is a substantial change in the nature and use, such as replacing a 14kV distribution line with a 69kV transmission line. Commenters disagreed, even in given examples, on whether certain piggybacking should require a new right-of-way. For example, a tribal commenter stated that siting utilities within road and railroad rights-of-way without compensating the landowners for the additional use should be prohibited. In contrast, a city commenter stated that the rule should clarify that utility lines located in a right-of-way established for a road should be considered an incidental use of the right-of-way not requiring consent or compensation where the consumer is using and paying for the utility service. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 Response: The final rule maintains the proposed requirement that a use not specified or stated within the scope of an existing right-of-way requires new consent and approval for the new use. The language ‘‘within the same scope’’ is intended to provide flexibility with regard to uses that are not foreseeable but are comparable (for example, a grant for an underground telephone line that is later used for an underground fiber optic line). Examples of uses that would not be within the same scope are a grant for a railroad being used for telecommunications, a grant for a road being used for utility lines, or a grant for an above-ground electrical wire being used for buried electrical wires. The final rule does not add a review of whether the new use will benefit the landowners because the BIA and the landowners consider this factor when issuing the original grant, so any use within that scope should likewise benefit the landowners. The Department has determined that maintaining this proposed section is important to specify that a right-of-way grant is not carte blanche to do whatever the grantee desires with the land, but rather is a grant for certain uses. Uses outside the scope of those specified uses constitute trespass. Comment: A few tribal commenters suggested clarifying that grantees must obtain an amendment to allow third parties to use the right-of-way, if the right-of-way does not clearly contemplate use by third parties, even if the third party will be using the rightof-way for the purposes stated in the right-of-way. Response: The final rule clarifies that, even when the use is the one specified in the grant or within the same scope, certain procedures must be followed if the grantee wishes to allow a third party unauthorized by the grant to use the right-of-way. The final rule clarifies that the grantee must obtain an assignment to allow someone other than the grantee to use the right-of-way for the use specified or within the same scope of the use specified in the grant. Comment: A commenter stated that this provision is silent on whether additional compensation is required. Response: Where piggybacking requires a new right-of-way, compensation is generally required. Where piggybacking requires an amendment or assignment to the rightof-way, the landowners may demand compensation as a condition of their consent. Comment: A commenter requested that the current 169.05 language requiring that the application identify the ‘‘specific use’’ be reinserted. E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations Response: Final § 169.125 requires that the grant specify the use(s) it is authorizing. Comment: One commenter stated that BIA appears to be trying to sidestep United States v. Oklahoma Gas & Electric, 318 U.S. 206 (1943). This commenter also questioned whether the phrase ‘‘before the effective date of this part’’ is intended to state that the Supreme Court’s decision will no longer be applicable. Response: The case cited by this commenter does not apply because it is interpreting statutes other than the 1948 Act (25 U.S.C. 323–328). Those other statutes explicitly referred to State law, which the 1948 Act does not. These regulations rely on and interpret the 1948 Act. Comment: A commenter stated that piggybacking should be disallowed without limitation, regardless of whether it is allowed by State law. Other commenters stated that BIA has for years taken the position that the 1948 Act supersedes the 1901 Act. Response: The final rule does not disallow piggybacking entirely, because there may be circumstances in which piggybacking is in the best interest of the Indian landowners. The provision that the commenters are referring to, with regard to the 1901 Act, is deleted in the final rule because a new grant issued within or overlapping an existing grant would be issued under the 1948 Act, rather than the 1901 Act. Comment: One commenter expressed concern about allowing a new use in a right-of-way for electric transmission systems, and suggested requiring the consent of the current grantee to determine whether the use will interfere with the existing use. A few commenters suggested deleting PR 169.123(b)(2), which would require that the new use not interfere with the existing use or requires the grantee’s consent, because if the use is not within the scope of the existing right-of-way, then the existing grantee has no authority to authorize or refuse the use. These commenters claim the right-ofway is not a possessory interest. Response: The final rule requires the grantee’s consent at FR 169.128 to ensure that the new use does not interfere with the existing grantee’s right-of-way. While the interest in the right-of-way is not a possessory interest, the grantee has the right to use the rightof-way for the specified purpose without interference. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 13. Location in Application and Grant Differ From Construction Location (PR 169.124/FR 169.129) Comment: A tribal commenter supported PR 169.124, saying it is a practical and reasonable approach that would have helped past situations in which the tribe attempted to correct an inaccurate legal description. Other commenters stated that the applicant should be required to obtain a new right-of-way grant if there is a change in location. Response: This provision is included in the final rule to address unforeseen circumstances before construction. The commenters’ assertion that the applicant should be required to obtain a new right-of-way grant whenever there is a change in location indicates a concern that this section could be abused. For this reason, the final rule adds that the BIA and the tribe, for tribal land, must determine that the change in location is only a minor deviation, and that, if it is not, then the grantee must seek a new or amended right-of-way grant. Comment: One commenter suggested streamlining the process by requiring an amendment rather than an entirely new right-of-way, allowing BIA to consent on behalf of landowners if BIA consented to the initial grant, and allowing for a recalculation of compensation rather than requiring a new valuation. Response: The final rule allows an option for an amendment to the existing right-of-way in appropriate circumstances. Provisions for BIA consent on behalf of landowners are provided in the regulatory sections governing consent. The final rule also allows for a recalculation of compensation with landowner consent. Comment: A tribal commenter stated that any change in location should require landowner consent, and may require additional compensation, a change in bonding, and other conditions. Another tribal commenter stated that a change in location that will require construction outside an approved corridor should require prior tribal consent. A commenter expressed concern about whether the section excuses negligence when a grantee fails to stay within the boundaries identified in the grant and allows potentially major errors to be corrected with landowner consent and other requirements only in BIA’s discretion. Other commenters stated that consent should be required only if the change in location is material and significant and that requiring consent to minor changes could bring operations to a standstill if the landowner declines to grant consent. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 72521 Response: As explained above, the final rule clarifies that this provision applies to minor deviations in location, and that any other changes in location would require a new or amended rightof-way grant. Whether a change in location is a ‘‘minor deviation’’ is a matter of judgment. An example of a ‘‘minor deviation’’ would be a change in location of a few feet in an expanse of undeveloped land whereas a change in location of a 10 or more feet, or even a few feet, in a highly developed area may not be considered a minor deviation. Comment: A few commenters suggested including a requirement to provide notice to the tribe or to all Indian landowners. Other commenters suggested adding that revisions may also be subject to additional bonding and NEPA compliance requirements. Response: FR 169.129 provides that BIA will work with the tribe, for tribal land, to determine what the change in location requires and adds that additional actions may be necessary to comply with applicable laws. Comment: A few commenters had questions about this section, such as whether grantees must notify BIA even if the survey accounts for the discrepancy in location. Response: If a survey is inaccurate, the grantee must notify the BIA to determine whether the change in location is a minor deviation. Comment: One commenter claimed to have received grants that contain incorrect information in the past, and suggested the rule should provide the grantee the opportunity to review the document before it is officially issued. Response: The final rule does not specify that the grantee may review the document before it is issued, but grantees are welcome to maintain an open line of communication with BIA, and BIA may, in its discretion, provide grantees with the opportunity to review. 14. Bonding (PR 169.103/FR 169.103) Comment: Several commenters suggested adding flexibility to the bonding provisions to allow for nationwide bonding and self-insurance. Others requested specifically adding an insurance requirement or bonding requirement to cover contaminants and explosives. At least one tribal commenter stated that tribes should have the option to determine whether bonding or insurance is more appropriate to address potential environmental damage. A few commenters opposed the requirement for bonding, stating that the tribal landowner may end up paying the costs, and suggested allowing for a waiver. One commenter supported the E:\FR\FM\19NOR2.SGM 19NOR2 72522 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations provisions allowing for bonding, while others stated that the provisions raise more questions than they answer. Response: The final rule retains the requirement for bonding but adds flexibility allowing for insurance or bonding to cover contaminants and includes a provision allowing for waiver of bonding and security requirements. Comment: A commenter noted that this section requires a surety to provide notice to BIA before cancelling a bond or surety, but does not require notice to the tribe, and stated that the rule should require notice to the tribe. Response: The final rule requires the surety to also provide notice to the tribe for bonds or sureties for rights-of-way on tribal land. Subpart C—Terms, Renewals, Amendments, Assignments, Mortgages mstockstill on DSK4VPTVN1PROD with RULES2 1. Term (Duration) Comment: Several commenters, including tribal commenters, supported having BIA defer to the tribe on the reasonableness of the term (duration) of the right-of-way. A few tribes suggested that the rule should establish default terms that apply, as in the current part 169, which limits oil and gas pipelines to 20 years and electric power lines to 50 years. Some suggested the default terms should apply whenever the tribe has not determined that a longer term is necessary or the right-of-way use does not provide significant service to the reservation. Commenters supportive of limiting the duration of grants pointed out that economic, technological, environmental, and other factors change what might have been an appropriate term for a right-of-way when originally granted, and limiting the term will ensure a reexamination consistent with tribal rights and interests. Several commenters suggested different uses for the proposed table showing terms for each right-of-way use. One tribal commenter suggested clarifying that the terms in the table are maximum term lengths, not minimum or recommended term lengths. A tribal commenter suggested adding general criteria for granting terms longer than those specified in the table (e.g., infrastructure or service benefits to landowners, projects that will benefit all landowners). Response: Tribes are free to rely on the terms provided as guidelines for individually owned Indian land, but the rule does not require those terms; instead, the rule provides that BIA will defer to any term the tribe deems appropriate. Comment: Many commented on the terms proposed for rights-of-way over or VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 across individually owned Indian land, as summarized here: • Oil and gas pipelines—A few commenters stated that the proposed 20year term for gas and oil pipelines is appropriate, but most other commenters stated that 20 years is unrealistic and too short, suggesting at least 40 or 50 years. • Electric distribution lines—Some commenters stated that electric distribution lines should be permitted in perpetuity; one suggested 50 years, and others stated that 50 years is too long. • Utilities, in general—Commenters who are providers of utilities stated that the grants should be in perpetuity (see discussion below); one suggested commercial utilities should have terms of 40 years. An electric cooperative suggested a 50-year right-of-way for electric cooperatives providing service to the tribe. • Telecommunications and broadband or fiber optic lines—A commenter suggested the term for telecommunications and fiber optic lines should be commensurate with that of other utilities; another suggested 50 years; others suggested 10 years. • Railroads—Some commenters stated that terms for railroads and roads should be limited to 75 years, rather than in perpetuity. • Conservation easements—A tribal commenter stated that conservation easements are usually in perpetuity, even though the table says ‘‘consistent with use.’’ • Other—Several commenters stated that most rights-of-way should be limited to 20 years. Response: The final rule recommends a maximum term of 50 years for all rights-of-way other than oil and gas and conservation easements. The final rule retains the recommended maximum duration of 20 years for gas pipelines as a baseline; however, if longer durations are appropriate in certain circumstances, BIA will review the request to determine if the longer duration is in the best interest of the Indian landowners. For conservation easements, the final rule retains the recommendation for duration consistent with use. The Department determined these terms are appropriate as guidelines. The final rule also specifies that there may be circumstances in which a different term may be appropriate, for example, if a Federal agency requires a different term. Comment: Several commenters, including several tribal commenters, stated that the rule should eliminate ‘‘in perpetuity’’ terms for rights-of-way on Indian land. These commenters asserted PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 that allowing a perpetual right-of-way violates the trust responsibility, fails to preserve the ability to change the grant in changed circumstances, fails to account for future generations, is not appropriate in the context of the history of Indian landowners not being fairly compensated for rights-of-way, and erodes tribal jurisdiction. One commenter stated that the maximum term should be the shortest period that provides sufficient certainty and/or opportunity for the grantee to recover costs. One commenter stated that perpetuity may be appropriate if it will forever benefit the landowners. A few electric cooperatives (e.g., NM Rural Electric Cooperative Association) stated that allowing a grant in perpetuity would reduce the impact of substantial fees that tribes assess on the cooperatives, benefiting all cooperative members, including tribal members, and eliminating the uncertainty in planning for affordable rates by eliminating the prospect of having to renew at prices that have no ceiling. One electric cooperative stated that the line should be in perpetuity if it serves the tribal community, in contrast to transmission lines that go over and across tribal lands. Likewise, public utilities argued that public utility transmission and distribution lines and appurtenant facilities should have a perpetual term because shorter terms could undermine the utility’s ability to provide affordable, essential utility service to the public. The utilities argued that they may be forced to choose a more expensive route, where a perpetual grant is ensured, rather than face the prospect of having to relocate the line at some point in the future when the grant expires. A city commenter stated that the rule should require BIA to grant easements in perpetuity if a professional engineer provides a map certifying certain circumstances, including that that the water and sewer system serve the entire community with the consent of landowners. One commenter suggested that, instead of allowing ‘‘in perpetuity,’’ the grant should state that if the right-ofway is abandoned for its original purpose, then it reverts to the landowners. Response: The final rule does not recommend ‘‘in perpetuity’’ for any type of right-of-way because the underlying parcel is trust property for which the Department owes an ongoing trust responsibility that is undermined if the Department abandons the ability forever to review the grant in certain intervals to address changed circumstances. While it is possible that under some E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations circumstances BIA could determine that a perpetual term is in the best interest of the individual Indian landowners, BIA expects those circumstances would be rare. Comment: A commenter stated that the rule should clarify when, how and under what criteria the BIA will decide the overall term of the right-of-way and whether the term complies with applicable legal authorities. Another commenter stated it is unclear how closely the BIA will conform to the table of guidelines when examining terms on individually owned Indian land. Response: The proposed and final rules provide for flexibility in establishing the term (duration) of a right-of-way by providing that BIA will defer to the tribe’s determination that a term is reasonable, and by providing guidelines for reasonable terms for individual Indian landowners. See FR 169.201. Comment: A power administration commenter noted that it has existing rights-of-way in perpetuity and asked how the grant would be impacted if the new rule requires a shorter term. Response: The rule provides a guideline for determining whether a term is reasonable in light of the purpose of a right-of-way for individually owned Indian land. It does not affect any existing grant terms. Comment: NorthWestern Energy requested treating all natural gas lines as utility gas lines and treating pipelines carrying oil and other petroleum products separately. A few tribal commenters suggested the opposite, clarifying that ‘‘utility gas lines’’ mean natural gas lines serving a tribal member or the tribe, and not transmission lines of a natural gas utility company. Response: Proposed and final § 169.201 treat utility gas lines (a term of 50 years) separately from other gas pipelines (with a term of 20 years). Whether a natural gas line is treated as a utility gas line generally depends upon whether it is carrying processed gas ready for use by the consumer or unprocessed gas from the wellhead. Comment: Several commenters requested clarifications on different uses specified in the proposed table of terms. Response: The final rule deletes the table of terms based on specific rightsof-way uses. Comment: A few commenters advocated for applying the same terms to both tribal and individually owned land to provide certainty to enable the applicant to justify the capital investment in the necessary improvements. One urged the Department to rethink the distinction and allow individual landowners the VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 same latitude to reach agreement on appropriate terms, in the same manner as for a tribal right-of-way, alleviates confusion regarding how terms should be applied to fractionated parcels with both tribal and individual owners, and provides greater flexibility to address specific factual circumstances. A few commenters suggested deleing the table and simply providing that the BIA will defer to the landowners’ determination that the term is reasonable. A few commenters stated that BIA should consult with the tribe on what a reasonable term will be for rights-of-way that will cross both individually owned Indian land and tribal land. Response: The final rule explicitly provides that the BIA will consider the duration negotiated by the tribe for tribal land when reviewing rights-ofway that also cross individually owned Indian land (or are located on fractionated land with both tribal and individual ownership). BIA encourages tribes and individual Indian landowners to consult with one another on reasonable terms for rights-of-way affecting both their interests. 2. Holdovers Comment: A commenter stated that holdovers should be allowed if the landowner consents to the grantee’s continued use for a period of less than 7 years and the grantee has submitted an application for a renewal or a new rightof-way. Several commenters suggested adding that a grantee may temporarily maintain the right-of-way pursuant to an agreement with the tribe or majority of landowners during good faith negotiations concerning renewal, and that the grantee will not be considered to be in trespass if it has filed an application for renewal. Response: The final rule addresses holdovers exclusively in FR 169.410, which states that while holdovers are not permitted, BIA will not enforce against holdover grantees if they are engaged in good faith negotiations. 3. Renewals (PR 169.201–169.202/FR 169.202) Comment: Several commenters stated that there is no need for a renewal of a right-of-way, and instead the grantee should be required to submit a new application because conditions may have changed. Several commenters supported the language in PR 169.202 on renewals. Several other commenters opposed the requirement that the original grant allow for renewal and specify any compensation. A commenter stated the current approach, of allowing renewals regardless of PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 72523 whether the original grant authorizes renewals, should be retained. Response: The final rule allows for renewal where the grant explicitly allows for an automatic renewal or option to renew and certain other conditions are met. See FR 169.202. Comment: A few commenters asked whether the terms outlined in § 169.201 include only the initial term or are inclusive of the renewal term. Response: The final rule clarifies that guidelines for maximum terms are intended to apply to the entire duration of the grant, inclusive of the initial term and any renewals. Comment: A commenter stated that the rule should not allow renewal without tribal notice or consultation. Response: The proposed and final rules require landowner consent for renewals, unless the landowners agreed not to require consent for renewals in the original grant as provided for in § 169.202(b). The final rule requires notice to landowners for those circumstances in which the original grant allows for renewals without consent. Comment: One commenter supported provisions allowing the original grant to provide for renewals without landowner consent. A few commenters requested clarification that the original grant must specify that consent is not needed for renewal; otherwise, grantees could argue that silence in the original grant allows for renewal without consent. Several tribal commenters stated that landowner consent should always be required for renewals, rather than allowing the original grant to allow for renewal without consent, because some landowners may be taken advantage of and not realize that they can oppose this type of provision. Another commenter expressed concern about having landowners bind future landowners by allowing for renewals without consent. Response: Final § 169.202(b) specifies that the original grant must explicitly allow for renewal without consent. If the original grant is silent as to whether consent is required for renewals, then consent for the renewal is required. Comment: Several commenters suggested adding a requirement that the grantee demonstrate that the right-ofway was neither abandoned nor in violation of any conditions in the grant. A commenter suggested amending paragraph (a)(1) to add that the grantee must comply with renewal requirements in the grant. Response: The final rule adds a provision requiring that the grantee be in compliance with the grant and regulations as a condition of renewal. E:\FR\FM\19NOR2.SGM 19NOR2 72524 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 Comment: We received several comments on whether the renewal should allow for any changes to the original grant’s terms. A few commenters stated that the rule should provide flexibility to allow for minor changes to size, type, location, or duration of the right-of-way through an amendment, rather than through an entirely new application. A tribal commenter suggested that renewals should be allowed if there is no ‘‘material change.’’ One commenter stated that requiring a new right-of-way application for every change, no matter how small, will lead to inefficiencies and detrimentally affect the modernization of energy infrastructure. Response: The final rule allows for renewals only if there is no change; otherwise, the new right-of-way does not qualify as a ‘‘renewal.’’ A grantee seeking to renew may do so and then separately request an amendment if there is a need to change the grant. Comment: A tribal commenter stated that rights-of-way should be renewed only if the renewal includes additional compensation. Response: The final rule requires additional compensation for renewals. Comment: A commenter requested that no map be required for a renewal if there is no material change to the map that was filed with the original application. Another commenter stated that requiring certified surveys for renewals would be a significant cost. Response: The final rule does not require a map or survey if the grantee attests that there is no change. 4. Multiple Renewals (PR 169.203/FR 169.203) Comment: Several commenters stated that this section should clarify that the multiple renewals are subject to the requirements of § 169.202. One tribal commenter suggested deleting this provision because it tends to provide for perpetual easements if the grants are automatically renewed. Response: The final rule clarifies that the provisions of § 169.202 apply to each renewal. To address the concern regarding perpetual easements, the final rule provides that BIA will review the initial term and any renewal terms and determine whether, together, they are reasonable. Comment: A commenter stated that this section should prohibit multiple renewals if the grant prohibits them. Response: The final rule states that renewals must be explicitly authorized in the grant. Comment: A commenter stated that the rule should retain the current § 169.25 for oil and gas pipelines VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 because the new rule will make renewals, amendments, assignments, and mortgages more difficult and time consuming. Response: Current § 169.25 does not address the process for amendments, assignments, and mortgages for oil and gas pipelines. The Department has determined that establishing procedures for amendments, assignments, and mortgages for new rights-of-way is necessary to protect the landowner’s right to obtain value from the trust resource. To the extent it addresses renewals, the current rule allows an initial term of 20 years and specifies a renewal period of 20 years. The Department will defer to tribes for rightof-way terms and renewals on tribal land. For rights-of-way on individually owned Indian land, BIA will use the guideline of 20 years as a maximum for a reasonable term for oil and gas pipelines to ensure a reexamination of the circumstances upon application for a new right-of-way at the end of that 20year term, rather than an automatic renewal, to ensure protection of the landowner’s right to obtain value from the trust resource. 5. Amendments Comment: A commenter stated that amendments should not be required for changes to accommodate a change in the location of permanent improvements to previously unimproved land within the right-of-way corridor, and that, instead, the rule should add that amendments are not required for ‘‘other administrative modifications.’’ The commenter states that this term is used in part 150 and in IBIA decisions, establishing precedent. Other commenters were concerned that allowing corrections to legal descriptions or other technical corrections without meeting consent requirements could encourage grantees to couch significant changes as ‘‘technical corrections.’’ These commenters stated that there should be no exceptions to the consent requirements, and that the final clause of § 169.204(a) should be deleted. A few tribal commenters stated that the prior notification to landowners should be required if BIA will be amending a grant to correct a legal description or make another technical correction without meeting consent requirements. Response: The final rule adopts the suggested terminology and allows BIA to make ‘‘administrative modifications’’ upon request without landowner consent. BIA will review each request for an administrative modification and determine whether it is a more PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 significant change, requiring an amendment with landowner consent and BIA approval. The final rule requires that the grantee notify landowners of the administrative modification, but does not require prior notification because the administrative modification is, by its nature, a technical correction. For other changes to the grant that are more significant than administrative modifications, the final rule provides that the grantee must obtain landowner consent and BIA approval. Administrative modifications are intended to capture the category of changes that are clerical in nature and do not affect vested property rights or involve questions of due process. The final rule also states that if the change to the grant is material, BIA may require the grantee to obtain a new grant rather than merely amend the existing grant. An example of a material change to a grant would be changing the right-ofway use from a two-lane road to a sixlane highway. BIA will review each amendment request to determine whether it is a material change requiring a new right-of-way. Comment: A commenter expressed concern with using the terms ‘‘permanent improvement’’ and ‘‘unimproved land’’ in PR 169.204(b) because they are not defined and are not used in the current rule. Another commenter opposed PR 169.204(b) because the grantees obtain rights to use the land encompassed by the right-ofway, and those rights include the right to amend the location of the improvements within the right-of-way without consent or approval. The commenter points out that it would be extremely time consuming and costly to require grantees to again secure consent and approval, adding hurdles. This commenter suggested instead only requiring the grantee to provide notice to BIA, for recording in the LTRO. Response: The provision regarding moving permanent improvements to unimproved land has been deleted and replaced with a new standard for determining whether an amendment is required: whether the change is ‘‘material.’’ Nevertheless, amendments are generally required for changing the location of permanent improvements because it is necessary for BIA to know the exact location of permanent improvements for its analysis under the National Environmental Policy Act and the National Historic Preservation Act. Comment: One commenter asked how PR 169.204 works with PR 169.123 (new uses within or overlapping existing grants) where a grantee proposes to adjust its use within the same right of E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations way. This commenter stated that the grantee should be able to accomplish a minor change in use without having to request an entirely new right-of-way. Response: The final rule updates PR 169.123 (FR 169.127) to clarify that a grantee that seeks to adjust its use within the same right-of-way may request an amendment of the right-ofway, while a grantee that seeks to use a right-of-way held by another individual or entity must obtain an assignment (if the use is within the same scope) or seek an entirely new right-of-way (if the use is not within the same scope). Comment: A commenter suggested requiring notification of the date of BIA’s receipt of a request for amendment and any BIA request for additional review time only to the amendment applicant, and not the landowners. Response: The Department’s trust obligation is to the landowners, rather than to the parties in general; therefore, the final rule requires notification to the landowners as well. Comment: A few commenters suggested that an amendment should be deemed approved if BIA fails to take action within the required timeframe. A tribal commenter opposed allowing BIA to extend the timeframe unilaterally for review of amendments, and that the timeframe should instead be tolled if additional information or revision is necessary. Response: The final rule does not allow amendments to be ‘‘deemed approved’’ because BIA must review the amendment to determine whether it requires a new right-of-way or triggers other Federal review. The final rule incorporates a process whereby the amendment will be elevated within BIA if BIA fails to take action within the required timeframe. This ensures accountability within BIA on meeting timelines. Comment: A commenter stated that it is unclear when BIA approval of an amendment would not be required, and suggested either clarifying or deleting the phrase ‘‘if our approval is required’’ in PR 169.205(a). Response: The provision cited by the commenter is deleted from the final rule. See FR 169.205. Comment: A commenter stated that consent in PR 169.206 should refer back to PR 169.107 and PR 169.108, so that if BIA granted consent for the original right-of-way, it may consent for the amendment. Response: The final rule adds the appropriate cross-references. See FR 169.206. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Comment: A commenter suggested limiting consent of grantee’s sureties to only those securities that require consent of the surety for amendments to rights-of-way or similar documents. Response: The final rule does not incorporate this limitation because BIA is not in the business of determining which surety’s consent is required. The final rule does, however, clarify that the grantee’s surety refers to the surety for the bonds or other security, rather than other sureties. Comment: A commenter sought explanation of what would constitute a ‘‘compelling reason.’’ Response: The final rule does not define ‘‘compelling reason’’ because this phrase is intended to capture factspecific circumstances that may not be foreseeable. 6. Assignments Comment: A few tribal commenters stated that the rule should allow for assignment of rights-of-way to other individuals or entities without BIA approval only where the original grant ‘‘expressly’’ allows for assignment. Otherwise, silence in the grant could be construed as allowing for assignments. Several other commenters (Western Energy Alliance, Enterplus Resources Corporation) stated that the rule should provide that rights-of-way are freely assignable without consent or approval, unless the grant states otherwise. One commenter stated that taking away the grantee’s ability to sell, assign, or transfer its rights in a right-of-way significantly decreases the value to the grantee, potentially amounting to a ‘‘taking.’’ Another commenter stated that the requirements for consent and approval erect new and time-consuming barriers to assignments where none currently exist, undermining the goal of ‘‘streamlining’’ the regulations. One commenter stated that, to the extent BIA approval of an assignment is necessary, it should be limited to ensuring the assignee has financial and technical capability to maintain the right-of-way. This commenter stated that the default should be to allow assignments, unless otherwise provided in the grant. Response: The final rule states that landowner consent for assignments is generally required in all cases. This includes tribal consent for assignments of rights-of-way on tribal land. The final rule allows for assignment without BIA approval if the original grant allows for assignment without approval. An assignment is a conveyance of interest in Indian land, so the law generally requires BIA approval. While the current regulations are not clear on the process for assigning rights-of-way, the PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 72525 final rule establishes a process in the interest of protecting the landowners’ interests and in transparency. These requirements are parallel to the leasing regulations at part 162. Comment: A few commenters, including energy companies, suggested clarifying when approval of and consent for an assignment is not required, and suggested that no approval or consent should be required when a grantee is fully acquired by a new entity, the grantee’s name changes, the grantee changes as a result of a corporate merger, acquisition, transfer by operation of law, or assignment to affiliated entities or companies. Response: The final rule incorporates the energy companies’ suggestion that assignments that are the result of a corporate merger, acquisition, or transfer by operation of law not require consent and approval, because such ‘‘assignments’’ are not actually a conveyance of an interest in the Indian land. Record of these assignments must be submitted to BIA for recording, but no consent or approval is required. All other assignments, including assignments to affiliated entities or companies, require consent and approval (unless exempted under FR 169.207(b)). Comment: A tribal commenter stated that it has been the practice in the energy industry for companies to obtain rights-of-way and then ‘‘flip’’ them at a large profit. Several other commenters pointed out that grants are currently freely assignable and stated that free assignability should continue because obtaining consent will be timeconsuming, costly, and will significantly deter acquisition of rightsof-way on Indian land. A commenter stated that rights-of-way are negotiated with the understanding that the grantee may assign rights to other entities or mortgagors, and that the availability of this operational and financial opportunity is partially what makes the process of seeking a right-of-way worthwhile. Response: The final rule provides that a grantee may assign a right-of-way only with consent and approval, unless other conditions apply, including that the grant expressly allows for assignments without further consent or approval. These procedures are necessary for all rights-of-way granted after the effective date of these regulations in order to ensure BIA is aware of authorized users of Indian land. If assignability is important to the grantee, the grantee should negotiate and pay for this right. Comment: One commenter stated that the rule should allow the parties to waive consent to assignments and E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72526 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mortgages, in addition to waiving BIA approval. Response: The final rule allows the landowners to negotiate for a grant that expressly allows for assignments and mortgages without further consent. Comment: A commenter suggested ensuring BIA is kept informed by providing that if the assignee fails to provide to BIA the assignment with supporting documentation within a month of finalizing the assignment, then the assignment is subject to cancellation. Response: If BIA approval of the assignment is required, BIA will have documentation of the assignment. The final rule adds, for those circumstances in which BIA approval is not required, that the assignee and grantee must provide BIA with the documentation within 30 days of the assignment. Comment: A tribal commenter suggested adding that the assignee must certify that its use of the right-of-way will remain the same as under the original right-of-way. Response: The additional suggested language is unnecessary because the assignee will be bound by the terms of the original grant regardless of whether the grantee provides a certification. Comment: A few commenters suggested requiring notice to landowners of any proposed assignment so they may negotiate an assignment fee. Response: The rule requires consent for assignments in almost all instances; this provides landowners with the opportunity to negotiate for any additional compensation or assignment fee. Comment: A commenter requested reducing the timeframe for BIA approval from 30 days to 20 days. Several tribal commenters stated that an assignment should be ‘‘deemed approved’’ if the BIA fails to act within the required timeframe. Response: Assignments may not be deemed approved because they are, as a matter of law, equivalent to a new grant. The final rule retains the time for BIA approval at 30 days because the timeframes are intended to be outer bounds. Comment: A few tribal commenters stated that any assignment that would reduce the coverage of the bond should be a ground for disapproving an assignment. A few other tribal commenters suggested adding that BIA may disapprove an assignment if it determines the assignee is not capable of performing the terms and conditions of the right-of-way. Response: The regulations impose certain requirements for bonding. If the assignee cannot meet those VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 requirements, that failure could subject the grant to cancellation. The assignee must agree to be bound by the terms of the grant, which would include bonding requirements. BIA has discretion to deny an assignment if it determines that the assignee is not capable of performing the terms and conditions of the right-of-way and if that amounts to a compelling reason to deny the assignment. 7. Mortgages Comment: A few commenters stated that mortgaging of rights-of-way should not be permitted because they are not possessory interests. A tribal commenter stated that mortgaging a right-of-way interest is a new concept. One stated that mortgaging should be authorized only if there is ‘‘compelling empirical evidence’’ that such mortgages are necessary for Indian landowners to benefit economically. A few tribal commenters noted that the regulations are silent on issues of default, sale, or foreclosure on approved mortgages and expressed concern about what consequences foreclosure on the rightof-way interest may have on the Indian landowners. This tribal commenter stated that the requirement to obtain landowner consent for a mortgage is impracticable. Several commenters stated that mortgaging of the rights-of-way should be permitted without consent or BIA approval, unless the grant includes language to the contrary, because this is the current approach and that providing otherwise would be an ‘‘unworkable limitation.’’ These commenters state that requiring landowner consent and BIA approval add unnecessary burdens, and that when a grant is issued, it is with the understanding that the grantee may transfer rights to mortgagors and the availability of these operational and financial opportunities is what makes the process of seeking a grant worthwhile. One commenter stated, for example, that public utility mortgaging usually includes all facilities and interests owned by the utility, and this regulation would interfere with such financing. A commenter stated that the consent and approval requirements will ‘‘materially restrict development on Indian lands’’ because pipeline companies and others will be unable to obtain the borrowing base mortgages that are standard in the industry for financing and hedging against price volatility. These commenters point out that since the mortgage encumbers only the grantee’s interest, and not the interest of the Indian landowner, consent and approval are unnecessary. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 Response: The mortgage of a right-ofway grant is a mortgage of the grantee’s right, it is not mortgaging the underlying Indian land. Mortgages of rights-of-way is not a new concept; such arrangements already exist. If a foreclosure of the mortgage were to occur, then an assignment of the grant would be necessary to reflect the name of the new grantee. While the mortgage does not directly impact the Indian land, it does potentially indirectly impact that land because it represents a conveyance of the interest in the right-of-way grant. As such, it requires BIA approval. Comment: Several tribal commenters recommended that a mortgage be deemed approved if BIA fails to act on the request to mortgage within the timeframe. A tribe stated that this is necessary to prevent avoidable delays from affecting tribal economic development and community planning. Response: The final rule does not incorporate a requirement that mortgages be deemed approved if BIA fails to act within the established timeframes because affirmative BIA approval is often required by mortgagees and lenders even if the regulations were to provide for a deemed approved process. Comment: One tribal commenter stated that this section should refer to tribal laws that may apply to mortgages. Response: The general section at FR 169.009 establishes that tribal law applies. Comment: A commenter stated that consent of ‘‘grantee’s sureties’’ should be required only where the security document requires the surety to approve a mortgage transaction. Response: The final rule clarifies that BIA must review only whether the sureties for the bonds required for the right-of-way have consented. Comment: A commenter opposed the provision allowing BIA to consider the purpose of the use of the mortgage proceeds in making its decision to approve the mortgage. The commenter stated that it seems far-reaching to require the grantee to disclose this information. Response: The final rule retains this provision to protect the interests of Indian landowners. Comment: A few tribal commenters suggested changing the approval sections to state that BIA may approve a right-of-way unless the listed circumstances exist. Response: The proposed and final rules state that BIA may disapprove the right of way only if the listed circumstances exist in order to provide certainty and predictability to applicants. E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 Comment: A commenter suggested adding to the list of factors for disapproval that the mortgage ‘‘would reduce the coverage of the performance bond or alternative form of security.’’ Response: The final rule clarifies that the consent of the sureties for the bond is required. Subpart D—Effectiveness Comment: A few commenters (including the Western Energy Alliance) stated that the right-of-way document should be effective 30 days after the date it is granted rather than immediately and that, if an administrative appeal is filed, the effectiveness of the grant should be stayed because of the potential issues if an immediately effective right-of-way is later determined not to be effective. These commenters stated that the grantee may expend significant capital in improvements in the right-of-way only to learn, years later, that it does not have the right-of-way. Response: The final rule does not adopt the proposed approach, making the grant effective immediately to provide certainty and promote economic productivity of Indian land. Otherwise, frivolous appeals may tie up the land’s productivity. Grantees may weigh any potential issues if the grant is later determined not to be effective in their decision on whether to invest while the appeal is pending and whether to file for an injunction. Comment: One commenter stated that the effective date should be the date of execution, with the approval having a retroactive effect. Response: The right-of-way is not effective until BIA grants it. Comment: Several tribal commenters stated that PR 169.302 should allow for recording of a memorandum of right-ofway, rather than the right-of-way grant, where the parties wish to keep the details of the grant confidential. Response: This is a broader issue regarding title records, which is governed by another regulation, 25 CFR 150.11. That provision will continue to govern this issue. Comment: A tribal commenter requested an editorial change because the LTRO does not necessarily possess jurisdiction, requesting instead that the LTRO office be the one ‘‘that administers land transactions for the Indian land which is the subject of the right-of-way.’’ Response: The terminology generally used refers to LTRO ‘‘jurisdiction’’ to refer to the geographical area, rather than to indicate any decision-making authority over the area. See 25 CFR 150.4. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Comment: A tribal commenter objected to having to record grants in the LTRO for tribal utilities that are not separate entities, because where the tribe itself provides the utility on tribal land, there is no right-of-way involved. Response: The final rule retains the requirement to record grants in the LTRO, even for tribal utilities that are not separate entities, to ensure that there is a record of who is validly on the land. Comment: A tribal commenter stated that the regulations should allow for recordation in tribally operated title record systems. A county commenter stated that rights-of-way should be recorded in the county recorder’s office, in addition to the LTRO. Response: Parties may record documents in tribally operated record systems and/or county recorder’s offices, but the final rule requires recording in the LTRO because the LTRO is the official record of title for land held in trust or restricted status by the United States. Comment: A commenter requested clarification on the ramifications of failing to record a document in the LTRO. The commenter requested adding to the regulations that BIA’s failure or neglect to timely record instruments with the LTRO shall not affect the validity of the grant or other instrument. Response: The right-of-way is effective when granted; recording does not affect the right-of-way grant’s validity. 1. Appeal Rights Comment: Several commenters stated that applicants should have the right to appeal all decisions, and should receive notice of the right to appeal. Response: In response to these comments, the final rule allows applicants to appeal denials of right-ofway grants and right-of-way documents. The leasing regulations limit the opportunity to appeal a denial of a lease to the landowners only, but rights-ofway are fundamentally different in that they could impact a number of landowners across several tracts, and here several commented that right-ofway applicants should be entitled to appeal, so the final rule allows for applicant appeals. 2. Compelling BIA Action (PR 169.304/ FR 169.304) Comment: A commenter requested that the rule impose a timeframe on BIA to notify the applicant of receipt of a complete application, because the timeframes do not begin to run until the application is complete. This commenter also expressed concern about whether BIA, and compacting/ PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 72527 contracting tribes, could meet the timelines. Other commenters requested removing discretionary timeframes for BIA actions, providing no more than 60 or 120 days for BIA to act, and allowing any party to compel action. Several commenters suggested this section would be streamlined by allowing BIA 120 days to act and deeming the document approved if the BIA fails to act within the given timeframe. Response: Based on our past experience, the timelines are reasonable, and provide certainty to applicants as to when a decision will be issued. The final rule does not incorporate a ‘‘deemed approved’’ approach for new rights-of-way because BIA is statutorily required to review and issue a determination of whether to grant rights-of-way over and across Indian land. Comment: A tribal utility commenter suggested adding that BIA will be responsible for any losses that accrue due to a delay in approval of a right-ofway. Response: The regulations provide a mechanism to compel BIA action if BIA does not meet the deadline for issuing a decision. Rather than making the agency responsible for losses resulting from a delay, the new rule adds certainty to timelines to allow applicants to better plan and avoid losses associated with timing. Comment: One tribal commenter and a few other commenters suggested adding a ‘‘not to exceed’’ timeframe in the BIA Director’s order establishing a timeframe for the Regional Director or Superintendent to issue a decision. Response: The final rule does not add a ‘‘not to exceed’’ timeframe because the rule maintains the BIA Director’s flexibility and discretion to manage priorities. Comment: A few commenters suggested revising paragraph (c) to provide that ‘‘either party’’ may file a written notice to compel action, rather than requiring both parties to file a notice. Response: The final rule incorporates this requested change. Comment: A commenter asked for clarification as to whether the BIA Director would be making a decision or merely compelling BIA to make a decision. Response: The rule allows for the BIA Director to do either, as appropriate. Comment: A commenter stated that PR 169.304(g) should be deleted because there is no reason to prevent a party from availing itself of the process in 25 CFR 2.8 to compel action. Response: This rule provides an alternative process intended to supplant E:\FR\FM\19NOR2.SGM 19NOR2 72528 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations 25 CFR 2.8 entirely, so a party is not required to submit a § 2.8 demand letter giving the official a certain time period to act before allowing an appeal. We acknowledge that the formal adjudication process before the Interior Board of Indian Appeals may not be the most appropriate or expeditious process when a BIA official fails to meet regulatory deadlines. Our hope is that inserting a supervisory official, the BIA Director, into the process will obviate the need for any further relief; and we may consult with tribes on the Board’s role with respect to instances of BIA inaction in the future. mstockstill on DSK4VPTVN1PROD with RULES2 3. Appeal Bond Comment: A commenter stated that the landowners should always be required to post an appeal bond because the right-of-way decision is not stayed, and that the provision stating that a bond is not required if the tribe waives it should be deleted. Response: The final rule does not require landowners to post appeal bonds because the Department’s trust obligation is to the landowner. Further, the rule allows for the opportunity for more front-end negotiations, which may result in fewer appeals. Comment: A commenter requested an additional provision establishing a 60day timeframe for BIA to issue a decision on an appeal of a right-of-way decision, similar to 25 CFR 162.473. Response: The final rule adds this provision at FR 169.412. Subpart E—Compliance and Enforcement Comment: One tribal commenter stated its strong opposition to deletion of the affidavit of completion requirement, stating that the requirement serves a useful purpose of notifying tribes and BIA when construction work is complete, facilitating tribes’ and BIA’s ability to inspect the completed right-of-way construction to ensure it complies with the grant. Response: The final rule removes this provision, but tribes are free to negotiate with applicants to require filing notice of completion of construction work for any particular grant and tribal inspection of the completed right-ofway. Comment: A commenter questioned whether multiple sections throughout the regulation that require compliance with tribal law will mean that the grantee is in violation of the grant if it challenges the authority of the tribe’s jurisdiction to impose certain laws. Response: The grantee may be in violation of a grant if it challenges the VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 authority of the tribe’s jurisdiction to impose certain laws, depending upon the circumstances. Comment: A commenter said that the rule contains unworkable deadlines for a grantee to vacate the property after cancellation of a grant. Response: The order to vacate may be stayed if the grantee files an appeal. Comment: A commenter requested recognition in the rule or preamble that electric transmission system providers have vegetative management obligations under Federal reliability standards that may require them to act outside the right-of-way boundaries to remove vegetation in specific incidences, and that these actions should not be subject to enforcement action for trespass. Response: Reasonable and appropriate actions taken by grantees, such as utility providers, outside the boundaries of the right-of-way to comply with Federal requirements for vegetative management will not be considered trespass. Comment: A commenter suggested deleting ‘‘unauthorized new construction’’ and instead stating that any changes in use not permitted in the grant may result in enforcement action. Response: FR 169.401 specifies that any changes in use not permitted in the grant are subject to enforcement. Comment: A tribal commenter requested broadening § 169.401 to apply to the violation of the ‘‘terms and conditions of a right-of-way document’’ rather than just a grant. Response: The final rule specifies ‘‘right-of-way document.’’ Comment: The commenter requested clarification to confirm that the rule does not limit any existing property rights or causes of action. Response: We agree that the rule does not limit any existing property rights or causes of action; moreover, FR 169.413 states that Indian landowners may pursue any available remedies under applicable law. Comment: Several tribal commenters stated that the rule should clarify that the tribe with jurisdiction may investigate non-compliance in the same manner and to the same extent as the BIA, within the tribe’s inherent sovereign rights. These commenters stated that the rule should explicitly provide for this right no matter how the noncompliance comes to light (not just upon the complaint of the landowner). Response: The final rule adds that the tribe may investigate compliance consistent with tribal law. The rule does not impose an obligation on the tribe to investigate. Comment: A commenter suggested stating only ‘‘applicable law’’ for notice PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 requirements, rather than ‘‘applicable tribal law.’’ Response: The final rule retains ‘‘tribal law’’ for specificity. Comment: A commenter stated that the rule should define the term ‘‘reasonable notice’’ for entry onto the right-of-way, particularly for rights-ofway used by the oil and gas industry, because entry without significant advanced notice could pose health and safety risks. Several commenters stated that landowners should always have the right to enter their own land to inspect and protect, without prior notice or approval. Response: Reasonable notice varies based on the circumstances. Landowners generally have the right to enter and inspect and protect without prior notice or approval so long as it is consistent with the terms and the conditions of the grant and does not interfere with grantee’s efforts to carry out the purpose of the grant. Nevertheless, we encourage landowners to provide notice prior to entry for safety reasons. Comment: Several tribal commenters suggested adding a definite timeframe, such as 30 days, rather than ‘‘promptly’’ for BIA to initiate an investigation when notified of an issue. Response: Because BIA’s ability to investigate potential violations varies with the availability of resources, the final rule does not add a specific timeframe. 1. Abandonment Comment: A tribal commenter stated that an investigation at PR 169.402 does not seem appropriate if the grantee voluntarily relinquishes or abandons his interest. Response: The final rule clarifies that ‘‘abandonment’’ includes an act indicating an intent to give up and never regain possession of the right-ofway. Investigation may be appropriate to determine whether an act has occurred demonstrating an intent to give up and never regain possession of the right-of-way. Comment: An electric transmission commenter stated that there are instances in which it needs to acquire rights-of-way but not use them for several years, e.g., in advance of construction or planned use while budgetary or environmental processes are undertaken. The commenter requested allowing the grantee to avoid cancellation for non-use by submitting written notice to the BIA that continued availability is essential and there is no intent to abandon the right-of-way. Response: The grantee and landowner may negotiate such terms in the grant. E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 2. Negotiated Remedies (PR 169.403/FR 169.403) Comment: A few tribal commenters supported the provision allowing the parties to establish negotiated remedies. One tribal commenter suggested that the rule should allow for negotiated remedies even for pre-existing grants that are silent on the issue. Response: Adding negotiated remedies to a pre-existing grant that is silent on the issue would require an amendment to the grant. Comment: A few commenters expressed concern with PR 169.403(e), which allows violations to be addressed by a tribe or resolved in tribal court but noted that many tribal agreements already incorporate these requirements. A tribal commenter stated strong support for allowing violations and disputes to be resolved by tribal court or through alternative dispute resolution. Response: The rule lists this forum as an option for the grantee and landowners to consider when negotiating a grant. Comment: An energy industry commenter stated that landowners may not legally ‘‘terminate’’ a Federal grant because the landowners are not a party to the grant. Likewise, this commenter stated that BIA does not have authority to permit landowners to pursue remedies under tribal law for violations of federally granted interests. Response: The termination is, in essence, a withdrawal of the landowners’ continued consent, which is required by statute. Further, because the Secretary grants rights-of-way subject to such conditions as he may prescribe, the Secretary may approve of a grant with a condition allowing a tribe unilaterally to terminate a grant. Comment: A few commenters suggested that the rule provide that the grantee negotiate solely with BIA regarding negotiated remedies, for efficiency and consistency, in situations involving multiple landowners. Response: The remedies are negotiated between the grantee and the landowner because the landowner is the beneficial owner of the land. Comment: A tribal commenter stated that PR 169.403 should add that the BIA will accept the tribal government’s decision on enforcement. Several commenters suggested adding that BIA will accept the decision of the other forums unless it violates the trust responsibility. A few commenters questioned how BIA will determine whether to defer to ongoing actions or proceedings. Response: If the parties are addressing a compliance issue in tribal court or VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 other court of competent jurisdiction, through a tribal governing body or an alternative dispute resolution method, BIA generally will wait for those proceedings to close and defer to the outcome. Comment: Several tribal commenters noted that the negotiated remedies must be stated in the ‘‘tribe’s consent,’’ but that the phrase is an undefined term, beyond the requirement that it be in the form of a tribal authorization. The tribe notes that the negotiated remedies would be in the tribal right-of-way agreement, rather than in the tribal resolution, and therefore requests clarifying ‘‘right-of-way agreement.’’ Response: The final rule clarifies that the consent may include a written agreement. See FR 169.107. Comment: Several commenters stated that a notification to sureties or mortgagees is a private matter determined by agreement between the party and surety or mortgagee and should not be addressed in the rule. Response: The surety must be notified because it is the holder of the security, which ultimately protects the trust land. The final rule deletes ‘‘mortgagee.’’ Comment: A tribal commenter requested that PR 169.403(d) clarify that the remedies are in addition to BIA’s cancellation remedy by stating ‘‘unless otherwise agreed to by the Indian landowners in their consents.’’ Response: The right-of-way grant will incorporate any conditions in the consent of the Indian landowners. 3. BIA Enforcement (PR 169.404– 169.405/FR 169.404–405) Comment: A tribal commenter stated that PR169.404 should require consultation with the impacted tribe during the determination of whether there has been a violation and how the violation can be cured. A commenter stated that BIA should be required to consult with the grantee, rather than just the landowners, before taking enforcement actions. Response: The final rule adds that the Department will communicate with the Indian landowners in determining whether a violation occurred. The final rule does not accept the suggestion to require BIA to consult with the grantee because the Department’s trust responsibility is to the landowners. Comment: A commenter stated that individual Indian landowners should receive actual, rather than constructive, notice of the violations. A few commenters stated that the compliance and enforcement provisions throughout should require actual notice, rather than constructive notice to individual Indian landowners. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 72529 Response: The final rule adds that BIA will provide actual notice of cancellations to the landowners. Only the grantee receives notices of violation because the violation may be cured and have no impact on the grant or landowner. Comment: Several tribal commenters requested the inclusion of deadlines for BIA to determine if there has been a violation (within 90 days of initiating the investigation) and to send the notice of violation to the grantee. The commenters stated that BIA should be required to adhere to strict timeframes when notified of right-of-way issues to fulfill its trust responsibility, especially given that right-of-way violations have been a historical and ongoing problem in Indian country. A few commenters stated that the rule should impose concrete requirements for BIA enforcement, rather than affording it latitude and discretion in determining what enforcement actions to take. Response: Timeframes for investigation and enforcement depend upon the nature of the violation. Some violations will take more time to investigate than others; however, the final rule adds a section clarifying that BIA may take emergency action if there is a threat to Indian land. Comment: A commenter requested that PR 169.404 allow grantees 30 days, rather than 10 days, to cure any deficiencies because BIA has always allowed 30 days in the past, 10 days is ‘‘unrealistic,’’ and a potential violation in a remote location may require logistical coordination not easily accomplished within 10 days. Response: The grantee may request additional time to cure. See FR 169.404(b)(2)(iii). Comment: A tribal commenter stated that the rule should allow tribes to acknowledge and address violations concurrently with BIA in the absence of negotiated remedies. Response: Tribes may pursue any available remedies under tribal law or negotiated remedies. Comment: A few commenters stated that this subpart should address violations by a tribe or individual Indian landowner. Response: The right-of-way grant governs only the grantee’s actions; therefore, no enforcement process against landowners is needed. Comment: A commenter suggested deleting PR 169.404(b) stating that the notice of violation may order the grantee to cease operations, because the grantee must first be afforded the opportunity to cure. Response: In certain circumstances, it may be appropriate for the notice of E:\FR\FM\19NOR2.SGM 19NOR2 72530 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 violation to require immediate cessation of operations. This provision gives BIA the discretion to determine whether the circumstances warrant immediate cessation, or cessation within another timeframe, as necessary to protect the trust resource. In FR 169.404(b)(2)(i), the notice provides the opportunity to cure. Comment: A few commenters stated that PR 169.405(c)(4) should clarify that the time to vacate the property may be extended to accommodate the removal of infrastructure or instead provide that removal must occur within a ‘‘reasonable time.’’ Response: The final rule retains 31 days as the default, but provides that parties may include different time periods in the grant and that longer time periods may be provided in extraordinary circumstances. Comment: A commenter pointed out that PR 169.404(d) states that the grantee will be responsible for obligations in the grant until the grant expires, or is terminated, or is canceled, but there may be reclamation obligations that survive the end of the grant. The commenter stated that BIA should clarify that the grantee will be entitled to access the right-of-way to fulfill these ongoing obligations. Response: FR 169.404(d) clarifies that there may be outstanding obligations that survive the end of the grant. FR 169.410 clarifies that the grantee may access the land to perform outstanding obligations. Comment: A tribal commenter suggested revising PR 169.405 to provide that the right-of-way documents negotiated by the tribe and grantee are included in the term ‘‘grant’’ for the purpose of establishing the required time period to cure and establish available remedies. Response: The final rule clarifies the definition of ‘‘grant’’ to include any changes made by right-of-way documents. Comment: A commenter stated that the interest rate at § 169.406 is ‘‘unusually high.’’ Response: The interest rate in 169.406 is the rate established by the Department of Treasury under the Debt Collection Act. 4. Late Payment Charges (PR 169.407/ FR 169.407) Comment: One commenter asked whether life tenants are entitled to a portion of the proceeds under PR 169.407. Response: Life tenants are free to negotiate if they wish to be entitled to a portion of the proceeds. Comment: Several commenters requested amending PR 169.407 to VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 provide that only landowners are entitled to late payment proceeds or trespass damages because the grantee may pursue a separate action for damage to personal property if necessary. Response: The final rule deletes ‘‘grantee’’ to provide that the landowners will receive proceeds if not specified in the applicable document. 5. Cancellation for Non-Use or Abandonment (PR 169.408/FR 169.408) Comment: A commenter stated that the rules should provide tribes authority to trigger cancellation for abandoned rights-of-way in accordance with selfgovernance. Response: Under FR 169.402(a), the landowner may notify BIA of non-use or an abandonment to trigger investigation and ultimately cancellation. Comment: A commenter stated that this section should require a right-ofway to be automatically terminated, rather than saying ‘‘BIA may cancel’’ if it is abandoned. A few tribal commenters stated that the Brandt decision of the U.S. Supreme Court (Marvin M. Brandt Revocable Trust v. U.S., 134 S.Ct. 1257 (2014)) requires forfeiture, rather than just forfeiture in the case of abandonment. Several tribal commenters suggested adding that nonuse or abandonment cannot be cured. Response: The final rule retains BIA discretion in cancellation because additional steps are required for due process before the cancellation is effective. The Brandt case applies to abandonment of rights-of-way granted through public (not Indian) land under the General Right-of-Way Act of 1875, 43 U.S.C. 934. It is therefore inapplicable to rights-of-way under these regulations. Comment: A commenter suggested adding that cancellation may occur if the grantee fails to respond to the notice. The commenter also stated that the notice should notify the grantee of the right to appeal under part 2, including the right to appeal the appeal bond, if required. Response: The final rule states that failure to correct the basis for the cancellation includes a failure to respond, but adds a provision stating that the cancellation notice will include a notice of right to appeal under part 2. There are no appeals of appeal bonds. Comment: A tribal commenter suggested separating non-use from abandonment in PR 169.408 to clarify the difference between the two processes (i.e., if a grantee expressly abandons the right-of-way, BIA need not give 30 days written notice). Response: The final rule redrafts this section to distinguish between PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 abandonment and non-use of the rightof-way and sets forth different processes for each. Comment: A commenter questioned why 30 days is permitted to respond to a notice of non-use, while only 10 days is permitted for response to a notice of violation. Response; The response period for notices of violation is 10 business days (FR 169.404), but is followed up with a cancellation letter (FR 169.405) that provides that cancellation will not be effective for 31 days. The 30-day period in the case of non-use or abandonment is immediately prior to cancellation. Comment: A few tribal commenters stated that a 2-year non-use period is excessive, and suggested 6 months instead. Response: The 2-year period affords sufficient time to establish that there is, in fact, non-use rather than a seasonal fluctuation in activity. Comment: A commenter requested explicitly describing unauthorized uses to include piggybacking, overburdening, holdovers, and other unallowable uses that qualify as trespass. Response: The final rule clarifies what piggybacking is unallowable, including overburdening (see FR 169.217), and when holdovers will be subject to enforcement for trespass (see FR 169.410). The definition of ‘‘trespass’’ addresses all remaining situations. Comment: A tribal commenter requested a mandatory mechanism for grantees to return roads or highways to a tribal landowner upon the written request of the tribe. Response: The final rule provides that the grant may address the disposition of permanent improvements the grantee constructs; this allows the Indian landowners and applicant to negotiate as to how permanent improvements should be handled. 6. BIA Enforcement Against Holdovers (PR 169.410/FR 169.410) Comment: A commenter stated that because its existing right-of-way grants are silent on the extension of the easement by holdover, the rule increases the risk that holdover grantees will be deemed to be in trespass, even where they are engaged in negotiations with the Indian landowners. Several commenters suggested stating that the grantee will not be considered to be in trespass while BIA is considering its application for a right-of-way, when the decision is on appeal, or the grantee has notified BIA that they are engaged in good faith negotiations. One commenter stated that, under 5 U.S.C. 558(c), the rule must allow for a holdover period while a renewal application is under E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 consideration by BIA. A tribal commenter suggested clarifying that grantees who are unauthorized holdovers are trespassers. Response: The final rule states that while holdovers are not permitted, BIA will not enforce against holdover grantees if the parties notify BIA that they are in good faith negotiation. To ensure that the parties do not take advantage of that negotiation time to extend what would have otherwise been a more limited term, the negotiation time during which the grant is held over is counted against any new grant term. Comment: A tribal commenter stated that it may be more helpful to clearly define what happens if a grantee remains in possession after expiration of a right-of-way term and clarify that the renewal will be effective on the approval date and will not relate back to the date of expiration. Response: The grant is effective when BIA issues it, and the effective date does not relate back, but if a grant is ultimately renewed, then BIA generally will not pursue trespass for the time of negotiations. 7. Trespass (PR 169.412/FR 169.413) Comment: A commenter requested that only willful trespass be subject to enforcement action and that BIA consult with the grantee and landowners prior to initiating enforcement actions for any accidental or incidental trespass. Response: The proposed rule and final rule definition of ‘‘trespass’’ is consistent with the definition of trespass on Indian land in leasing, forestry, and agricultural contexts. See e.g., 25 CFR 166.801. No compelling reason exists to differentiate between intentional and unintentional trespass in the right-of-way context. Comment: A commenter requested clarification on whether the available remedies under applicable law referred to in PR 169.413 (trespass) are in addition to the remedies in PR 169.403 (negotiated remedies). Response: The provision at FR 169.413 addresses the absence of a grant, so there is no document in which negotiated remedies would be set out. Comment: A tribal commenter requested that the rule acknowledge that tribal governments may enforce tribal laws against trespass and collect damages, and that BIA will assist the tribal governments in enforcing the law. Response: The final rule adds to 169.413 ‘‘including applicable tribal law’’ in response to this comment. Comment: A commenter requested clarifying that one who refuses to obtain a right-of-way but uses the Indian land is in trespass. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Response: The provision at FR 169.413 addresses situations in which someone refuses to obtain a right-ofway. Comment: A tribal commenter requested that the rule provide for BIA involvement in resolving disputes between tribes and applicants that have been occupying tribal land without authorization. The commenter stated that methods of determining past amounts due are often an insurmountable sticking point without BIA involvement. Response: BIA will offer technical assistance to an Indian landowner upon request. Comment: A commenter asked whether the rule could enforce a prohibition against ground-disturbing activities that disturb cultural sites. Response: FR 169.125(c)(4) provides that if historic properties, archaeological resources, human remains, or other cultural items not previously reported are encountered during the course of any activity associated with this grant, all activity in the immediate vicinity of the properties, resources, remains, or items will cease and the grantee will contact BIA and the tribe with jurisdiction over the land to determine how to proceed and appropriate disposition. Comment: A commenter stated that the regulations should protect tribes who oppose energy development chemicals being used in the right-ofway. Another suggested clarifying that trespass may include pollution or environmental spills. Response: FR 169.125(c)(6) provides for indemnification. Pollution and environmental spills are violations of the grant and any applicable law. Pollution or environmental spills may constitute trespass if the pollutants or contaminants enter other Indian land not covered by the right-of-way grant. Subpart F—Service Line Agreements (PR Subpart F (169.501–169.504)/Final Subpart B (169.51–169.57)) Comment: Several commenters suggested changes to the definition of ‘‘service line.’’ Several electric cooperative commenters strongly disagreed with deleting the language restricting service lines to a certain voltage because of their concern that it would consolidate local electric distribution cooperatives with electric transmission power providers. Some suggested retaining the current limits of 14.5 kv and 34.5 kv and many in the electric industry suggested a limitation to 100 kV. One tribal commenter also opposed deleting the voltage limitation because of a concern that it creates a PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 72531 loophole and makes enforcement more difficult. While some suggested a more limited definition, several suggested an expansive definition that would apply to any distribution facilities on the reservation that provide service only to customers on the reservation, or any facility connected to a main line or other line necessary for providing utility service to customers. One suggested it be defined as uses that are not a ‘‘general expansion of the system by the provider.’’ Many of these comments were aimed at providing relief to tribal members requesting utility services and/ or to non-profit, member-owned distribution cooperatives that provide utility service to tribal members. One commenter asserted that the definition of ‘‘service line’’ should include distribution lines, so that utilities would not be required to pay Indian landowners for rights-of-way and State utility commissions would not be required to allocate right-of-way costs associated with local distribution. Many commenters requested more clarification on what qualifies as a distribution line requiring a right-of-way and what qualifies as a service line. Some stated that if a line is an extension of service to a certain property, it should be considered a service line, regardless of whether it is a water line, sanitary and storm sewer line, electric line or telecommunication line. A few commenters suggested deleting the word ‘‘home’’ to clarify that utility service may also be provided to nonresidential buildings, while another suggested limiting to those lines that provide service to an individual building. Response: The final rule clarifies the definition of service line in a new subpart B, which is relocated from proposed subpart F with changes. The final rule moves the provisions regarding service line agreements from subpart F to subpart B to reflect that sequentially, the determination of whether a service line agreement or right-of-way is appropriate occurs earlier. The current definition of ‘‘service line’’ includes a restriction of 13.5 kV and 34.5 kV, depending on the type of power line. The proposed definition would have eliminated the voltage restriction, in order to base the definition instead on the purpose of the line (used only for supplying owners or authorized occupants or users of land with telephone, water, electricity, gas, internet service, or other home utility service). See proposed § 169.002. The final rule reinserts the kV restriction to ensure that service line agreements are not used for power lines for which a E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 72532 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations right-of-way grant would be more appropriate. The expansive definitions suggested by commenters are not appropriate because excluding nearly all lines from the requirement for just compensation would undermine Congress’s intent. The final rule adopts a narrow interpretation of ‘‘service line’’ to restrict ‘‘service lines’’ to those lines that directly provide utility service to a house, business, or other structure, rather than lines that are distribution lines, from which single service lines may branch off. Once a service line serves multiple structures, it exceeds its scope, and becomes a distribution line for the purposes of the right-of-way regulations. The final rule does not incorporate the suggested language about general expansion of the system, because each service line itself could be considered an expansion of the system. To provide relief to those in need of electric service and those providing electric service, the rule instead provides a new, streamlined separate process for non-profit electric cooperatives and tribal utilities. An extension of service to a certain property would be a service line as long as the extension of service is from a main line, transmission line, or distribution line to a single property. This is consistent with past practice and the 2006 BIA Right-of-Way Handbook. Comment: Several tribal commenters stated that the rule should remove the requirement to record service line agreements with the LTRO because it imposes additional burdens, and instead require that they be filed with BIA. A tribal commenter stated that the recordation requirement is counterintuitive to the purpose of service line agreements, intended to be simple agreements between a single utility provider and an authorized occupant. Response: The LTRO is the official title of record for Indian land and recording in the LTRO is necessary to provide notice of activities on the land. This is consistent with past practice and mirrors guidance provided in the 2006 Handbook. Comment: Several electric cooperatives stated that prohibiting a service line from being extended from an existing service line, resulting in the need to obtain a new right-of-way, has on numerous occasions, created hardship for families who cannot construct a home nearby family members because they cannot bring power to the home without a new rightof-way. Response: The final rule is consistent with the BIA Handbook. A service line can serve only one structure. A new VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 service line could be constructed branching from a right-of-way without requiring a new right-of-way if the new service line serves one structure. If more than one structure is served by a service line, then a right-of-way is required. Comment: Several electric cooperatives stated that they should be exempt from provisions requiring consent for service lines. Response: A service line agreement is executed by the owner(s) or authorized user(s) and the applicant; this is sufficient to show consent. Comment: One commenter stated that service lines may serve an entire customer base, rather than just individuals. Response: A customer base that is located in one building or structure may be served by a single service line, subject to the voltage limitations. Comment: A commenter stated that requiring compensation for placement of service lines needed to provide utilities is not appropriate. Response: The proposed and final rules do not require compensation but the owners or authorized users may negotiate for compensation as part of the service line agreement or agree that the service itself is compensation. Comment: A commenter stated that service lines should expressly include rights-of-way among the authorized users, e.g., a right-of-way for a pipeline requiring electric service for cathodic protection units through a simple electric distribution line. That line should not require a full right-of-way application. Response: See the discussion on ‘‘piggybacking,’’ above. Comment: A tribal commenter requested more specification on service line agreements and their allowable duration, how they must state the dimensions of the service line, whether sub-agreements are possible, what maintenance requirements are necessary, etc. Response: The landowners (or authorized occupants or users) may negotiate these items in the service line agreement. Comment: A commenter stated that the term ‘‘applicant’’ is misplaced because usually the tribe will request the agreement. Response: The final rule replaces the term ‘‘applicant’’ with ‘‘utility provider.’’ Comment: A tribal commenter noted that many utility service lines have been constructed without agreements, and suggested the rule add language to require noncompliant utilities and other entities to enter into agreements with the tribal landowners. PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 Response: Unauthorized users or occupants of Indian land are encouraged to enter into agreements with landowners as they are otherwise subject to enforcement for trespass. Comment: Several commenters stated that public utilities should be considered service lines because they are best able to provide affordable electrical and utility service to landowners under the service line agreement rather than the more onerous right-of-way procedures. Response: The final rule allows utility cooperatives certain advantages (see above), but requires that they undergo the process for obtaining a right-of-way if they do not otherwise meet the definition of a ‘‘service line.’’ Comment: One tribal commenter requested clarification that a right-ofway is not required or allowed for service lines. Response: The proposed and final rules clarify the requirements for service lines. III. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563) Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is significant because it may raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in E.O. 12866. E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. This rule is also part of the Department’s commitment under the Executive Order to reduce the number and burden of regulations and provide greater notice and clarity to the public. E:\FR\FM\19NOR2.SGM 19NOR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations B. Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). There is no defined universe of small entities that may be affected by this rule because there are a myriad of reasons why an entity may seek a right-of-way over or across Indian land; however, we received comments on the proposed rule from the following entities, so we considered that some may qualify as small entities: State and local governments, electric cooperatives, gas and oil companies and associations, pipeline companies, power and water utilities, telecommunications companies and railroad companies. It is possible that some of these are small entities and that have or may seek a right-of-way over or across Indian land for a variety of purposes, but this rule does not impose any requirements in obtaining or complying with a right-of-way that would have a significant economic effect on those entities. This rule clarifies the processes and requirements for landowner consent and BIA approval and, to the extent the rule imposes requirements that were not explicitly required before, the rule allows the parties to negotiate otherwise in the grant. For example, many grants allow assignments without landowner consent or BIA approval. The final rule establishes, as a default, that consent and approval are required, but allows parties to agree otherwise and state otherwise in the right-of-way grant. (Additionally, the final rule includes a blanket exemption for assignments that are the result of a corporate merger, acquisition, or transfer by operation of law.) Further, the rule minimizes BIA interference with the market by providing that BIA will defer to tribes’ negotiated compensation values, allowing more flexibility in allowing for non-monetary compensation, eliminating the need for BIA approval of surveys, and requiring only filing of service line agreements. The rule also relaxes requirements for utility cooperatives, some of which may qualify as small entities, to encourage them to develop Indian land; for example, by providing for waivers of compensation requirements and bonding requirements under certain conditions. C. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. The rule’s requirements will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises because the rule is limited to rights-of-way on Indian land. D. Unfunded Mandates Reform Act This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required. E. Takings (E.O. 12630) Under the criteria in Executive Order 12630, this rule does not affect individual property rights protected by the Fifth Amendment nor does it involves a compensable ‘‘taking.’’ A takings implication assessment is therefore not required. F. Federalism (E.O. 13132) Under the criteria in Executive Order 13132, this rule has no substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This rule only concerns BIA’s grant of rights-ofway on Indian land. G. Civil Justice Reform (E.O. 12988) This rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation; and is written in clear language and contains clear legal standards. H. Consultation With Indian Tribes (E.O. 13175) In accordance with the President’s memorandum of April 29, 1994, ‘‘Government-to-Government Relations with Native American Tribal Governments,’’ Executive Order 13175 (59 FR 22951, November 6, 2000), and 512 DM 2, we have evaluated the potential effects on federally recognized PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 72533 Indian tribes and Indian trust assets. During the public comment period on the proposed rule from June to November 2014, we held several consultation sessions with federally recognized Indian tribes and received written input from 70 tribes. We have considered and addressed this tribal input in development of the final rule. I. Paperwork Reduction Act The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., prohibits a Federal agency from conducting or sponsoring a collection of information that requires OMB approval, unless such approval has been obtained and the collection request displays a currently valid OMB control number. Nor is any person required to respond to an information collection request that has not complied with the PRA. In accordance with 44 U.S.C. 3507(d), BIA submitted the information collection and recordkeeping requirements of the proposed rule to OMB for review and approval and provided the public with the opportunity to submit comments on the information collection. BIA received no comments addressing the information collection requirements and made no revisions to those provisions in the final rule, but did add a new information collection requirement (filing past assignments) in response to comments. OMB has reviewed and approved the information collections in the final rule, which are described below. OMB Control Number: 1076–0181. Title: 25 CFR 169, Rights-of-Way on Indian Land. Brief Description of Collection: This information collection requires applicants for, and recipients of, rightof-way grants to cross Indian land to submit information to the Bureau of Indian Affairs. Type of Review: Existing collection in use without OMB control number. Respondents: Individuals and entities. Number of Respondents: 1,550 on average (each year). Number of Annual Responses (On Average): 2,200 (for applications); 50 (for responses to notices of violation); 50 (for responses to trespass notices of violations); 1,000 (for filing service line agreements); and 1,000 (for filing past assignments). Frequency of Response: On occasion. Estimated Time per Response: 1 hour (for applications); 0.5 hours (for responses to notices of violation); 0.5 hours (for responses to trespass notices of violations); 0.25 hours (for filing service line agreements); and 0.25 hours (for filing past assignments). E:\FR\FM\19NOR2.SGM 19NOR2 72534 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations Estimated Total Annual Hour Burden: 2,750 hours. Estimated Total Non-Hour Cost: $2,200,000. 169.13 May decisions under this part be appealed? 169.14 How does the Paperwork Reduction Act affect this part? J. National Environmental Policy Act This rule does not constitute a major Federal action significantly affecting the quality of the human environment because these are ‘‘regulations . . . whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-bycase.’’ 43 CFR 46.210(j). No extraordinary circumstances exist that would require greater NEPA review. This rule does not require BIA approval of any new types of major Federal actions, nor does it eliminate BIA approval of any types of major Federal actions. Subpart B—Service Line Agreements 169.51 Is a right-of-way required for service lines? 169.52 What is a service line agreement? 169.53 What should a service line agreement address? 169.54 What are the consent requirements for service line agreements? 169.55 Is a valuation required for service line agreements? 169.56 Must I file service line agreements with the BIA? K. Effects on the Energy Supply (E.O. 13211) This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. List of Subjects in 25 CFR Part 169 Indians-lands, Reporting and recordkeeping requirements, Rights-ofway. ■ For the reasons stated in the preamble, the Department of the Interior, Bureau of Indian Affairs, revises 25 CFR part 169 to read as follows: mstockstill on DSK4VPTVN1PROD with RULES2 PART 169—RIGHTS-OF-WAY OVER INDIAN LAND Subpart A—Purpose, Definitions, General Provisions Sec. 169.1 What is the purpose of this part? 169.2 What terms do I need to know? 169.3 To what land does this part apply? 169.4 When do I need a right-of-way to authorize possession over or across Indian land? 169.5 What types of rights-of-way does this part cover? 169.6 What statutory authority will BIA use to act on requests for rights-of-way under this part? 169.7 Does this part apply to right-of-way grants submitted for approval before December 21, 2015? 169.8 May tribes administer this part on BIA’s behalf? 169.9 What laws apply to rights-of-way approved under this part? 169.10 What is the effect of a right-of-way on a tribe’s jurisdiction over the underlying parcel? 169.11 What taxes apply to rights-of-way approved under this part? 169.12 How does BIA provide notice to the parties to a right-of-way? VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 Subpart C—Obtaining a Right-of-Way Application 169.101 How do I obtain a right-of-way across tribal or individually owned Indian land or BIA land? 169.102 What must an application for a right-of-way include? 169.103 What bonds, insurance, or other security must accompany the application? 169.104 What is the release process for a bond or alternate form of security? 169.105 What requirements for due diligence must a right-of-way grant include? Consent Requirements 169.106 How does an applicant identify and contact individual Indian landowners to negotiate a right-of-way? 169.107 Must I obtain tribal or individual Indian landowner consent for a right-ofway across Indian land? 169.108 Who is authorized to consent to a right-of-way? 169.109 Whose consent do I need for a right-of-way when there is a life estate on the tract? Compensation Requirements 169.110 How much monetary compensation must be paid for a rightof-way over or across tribal land? 169.111 Must a right-of-way grant for tribal land provide for compensation reviews or adjustments? 169.112 How much monetary compensation must be paid for a rightof-way over or across individually owned Indian land? 169.113 Must a right-of-way grant for individually owned Indian land provide for compensation reviews or adjustments? 169.114 How will BIA determine fair market value for a right-of-way? 169.115 When are monetary compensation payments due under a right-of-way? 169.116 Must a right-of-way specify who receives monetary compensation payments? 169.117 What form of monetary compensation is acceptable under a right-of-way? 169.118 May the right-of-way provide for non-monetary or varying types of compensation? 169.119 Will BIA notify a grantee when a payment is due for a right-of-way? PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 169.120 What other types of payments are required for a right-of-way? 169.121 How will compensation be distributed among the life tenants and owners of the remainder interests? 169.122 Who does the grantee pay if there is a life estate on the tract? Grants of Rights-of-Way 169.123 What is the process for BIA to grant a right-of-way? 169.124 How will BIA determine whether to grant a right-of-way? 169.125 What will the grant of right-of-way contain? 169.126 May a right-of-way contain a preference consistent with tribal law for employment of tribal members? 169.127 Is a new right-of-way grant required for a new use within or overlapping an existing right-of-way? 169.128 When will BIA grant a right-ofway for a new use within or overlapping an existing right-of-way? 169.129 What is required if the location described in the original application and grant differs from the construction location? 169.130 Must a right-of-way grant address ownership of permanent improvements? Subpart D—Duration, Renewals, Amendments, Assignments, Mortgages Duration & Renewals 169.201 How long may the duration of a right-of-way grant be? 169.202 Under what circumstances will a grant of right-of-way be renewed? 169.203 May a right-of-way be renewed multiple times? Amendments 169.204 May a grantee amend a right-ofway? 169.205 What is the approval process for an amendment of a right-of-way? 169.206 How will BIA decide whether to approve an amendment of a right-ofway? Assignments 169.207 May a grantee assign a right-ofway? 169.208 What is the approval process for an assignment of a right-of-way? 169.209 How will BIA decide whether to approve an assignment of a right-of-way? Mortgages 169.210 May a grantee mortgage a right-ofway? 169.211 What is the approval process for a mortgage of a right-of-way? 169.212 How will BIA decide whether to approve a mortgage of a right-of-way? Subpart E—Effectiveness 169.301 When will a right-of-way document be effective? 169.302 Must a right-of-way be recorded? 169.303 What happens if BIA denies a right-of-way document? 169.304 What happens if BIA does not meet a deadline for issuing a decision on a right-of-way document? E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations 169.305 Will BIA require an appeal bond for an appeal of a decision on a right-ofway document? Subpart F—Compliance and Enforcement 169.401 What is the purpose and scope of this subpart? 169.402 Who may investigate compliance with a right-of-way? 169.403 May a right-of-way provide for negotiated remedies? 169.404 What will BIA do about a violation of a right-of-way grant? 169.405 What will BIA do if the grantee does not cure a violation of a right-ofway grant on time? 169.406 Will late payment charges, penalties, or special fees apply to delinquent payments due under a rightof-way grant? 169.407 How will payment rights relating to a right-of-way grant be allocated? 169.408 What is the process for cancelling a right-of-way for non-use or abandonment? 169.409 When will a cancellation of a right-of-way grant be effective? 169.410 What will BIA do if a grantee remains in possession after a right-ofway expires or is terminated or cancelled? 169.411 Will BIA appeal bond regulations apply to cancellation decisions involving right-of-way grants? 169.412 When will BIA issue a decision on an appeal from a right-of-way decision? 169.413 What if an individual or entity takes possession of or uses Indian land or BIA land without a right-of-way or other proper authorization? 169.414 May BIA take emergency action if Indian land is threatened? 169.415 How will BIA conduct compliance and enforcement when there is a life estate on the tract? Authority: 5 U.S.C. 301; 25 U.S.C. 323– 328; 25 U.S.C. 2201 et seq. § 169.2 Subpart A—Purpose, Definitions, General Provisions mstockstill on DSK4VPTVN1PROD with RULES2 § 169.1 What is the purpose of this part? (a) This part is intended to streamline the procedures and conditions under which BIA will consider a request to approve (i.e., grant) rights-of-way over and across tribal lands, individually owned Indian lands, and BIA lands, by providing for the use of the broad authority under 25 U.S.C. 323–328, rather than the limited authorities under other statutes. This part is also intended to support tribal self-determination and self-governance by acknowledging and incorporating tribal law and policies in processing a request for a right-of-way across tribal lands and defer to the maximum extent possible to Indian landowner decisions regarding their Indian land. (b) This part specifies: (1) Conditions and authorities under which we will consider a request to VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 approve rights-of-way over or across Indian land; (2) How to obtain a right-of-way; (3) Terms and conditions required in rights-of-way; (4) How we administer and enforce rights-of-ways; (5) How to renew, amend, assign, and mortgage rights-of-way; and (6) Whether rights-of-way are required for service line agreements. (c) This part does not cover rights-ofway over or across tribal lands within a reservation for the purpose of Federal Power Act projects, such as constructing, operating, or maintaining dams, water conduits, reservoirs, powerhouses, transmission lines, or other works which must constitute a part of any project for which a license is required by the Federal Power Act. (1) The Federal Power Act provides that any license that must be issued to use tribal lands within a reservation must be subject to and contain such conditions as the Secretary deems necessary for the adequate protection and utilization of such lands (16 U.S.C. 797(e)). (2) In the case of tribal lands belonging to a tribe organized under the Indian Reorganization Act of 1934 (25 U.S.C. 476), the Federal Power Act requires that annual charges for the use of such tribal lands under any license issued by the Federal Energy Regulatory Commission must be subject to the approval of the tribe (16 U.S.C. 803(e)). (d) This part does not apply to grants of rights-of-way on tribal land under a special act of Congress specifically authorizing rights-of-way on tribal land without our approval. What terms do I need to know? The following terms apply to this part: Abandonment means the grantee has affirmatively relinquished a right-of-way (as opposed to relinquishing through non-use) either by notifying the BIA of the abandonment or by performing an act indicating an intent to give up and never regain possession of the right-ofway. Assignment means an agreement between a grantee and an assignee, whereby the assignee acquires all or part of the grantee’s rights, and assumes all of the grantee’s obligations under a grant. Avigation hazard easement means the right, acquired by government through purchase or condemnation from the owner of land adjacent to an airport, to the use of the air space above a specific height for the flight of aircraft. BIA means the Secretary of the Interior or the Bureau of Indian Affairs PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 72535 within the Department of the Interior and any tribe acting on behalf of the Secretary or BIA under § 169.008. BIA land means any tract, or interest therein, in which the surface estate is owned and administered by the BIA, not including Indian land. Cancellation means BIA action to end a right-of-way grant. Compensation means something bargained for that is fair and reasonable under the circumstances of the agreement. Consent means written authorization by an Indian landowner to a specified action. Easement means an interest, consisting of the right to use or control, for a specific limited purpose, land owned by another person, or an area above or below it, while title remains vested in the landowner. Encumbered account means a trust account where some portion of the proceeds are obligated to another party. Fair market value means the amount of compensation that a right-of-way would most probably command in an open and competitive market. Fractional interest means an undivided interest in Indian land owned as tenancy in common by individual Indian or tribal landowners and/or fee owners. Grant means the formal transfer of a right-of-way interest by the Secretary’s approval or the document evidencing the formal transfer, including any changes made by a right-of-way document. Grantee means a person or entity to whom the Secretary grants a right-ofway or to whom the right-of-way has been assigned once the assignment is effective. Immediate family means, in the absence of a definition under applicable tribal law, a spouse, brother, sister, aunt, uncle, niece, nephew, first cousin, lineal ancestor, lineal descendant, or member of the household. Indian means: (1) Any person who is a member of any Indian tribe, is eligible to become a member of any Indian tribe, or is an owner as of October 27, 2004, of a trust or restricted interest in land; (2) Any person meeting the definition of Indian under the Indian Reorganization Act (25 U.S.C. 479) and the regulations promulgated thereunder; and (3) With respect to the inheritance and ownership of trust or restricted land in the State of California under 25 U.S.C. 2206, any person described in paragraph (1) or (2) of this definition or any person who owns a trust or E:\FR\FM\19NOR2.SGM 19NOR2 72536 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations restricted interest in a parcel of such land in that State. Indian land means individually owned Indian land and/or tribal land. Indian landowner means a tribe or individual Indian who owns an interest in Indian land. Indian tribe or tribe means an Indian tribe under section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a). Individually owned Indian land means any tract in which the surface estate, or an undivided interest in the surface estate, is owned by one or more individual Indians in trust or restricted status. In-kind compensation means payment is in goods or services rather than money. Life estate means an interest in property held only for the duration of a designated person(s)’ life. A life estate may be created by a conveyance document or by operation of law. LTRO means the Land Titles and Records Office of BIA. Map of definite location means a survey plat signed by a professional surveyor or engineer showing the location, size, and extent of the right-ofway and other related parcels, with respect to each affected parcel of individually owned land, tribal land, or BIA land and with reference to the public surveys under 25 U.S.C. 176, 43 U.S.C. 2 and 1764, and showing existing facilities adjacent to the proposed project. Permanent improvement means pipelines, roads, structures, and other infrastructure attached to the land subject to the right-of-way. Right-of-way means an easement or a legal right to go over or across tribal land, individually owned Indian land, or BIA land for a specific purpose, including but not limited to building and operating a line or road. This term may also refer to the land subject to the grant of right-of-way; however, in all cases, title to the land remains vested in the landowner. This term does not include service lines. Right-of-way document means a rightof-way grant, renewal, amendment, assignment, or mortgage of a right-ofway. Secretary means the Secretary of the Interior or an authorized representative. Termination means action by Indian landowners to end a right-of-way. Trespass means any unauthorized occupancy, use of, or action on tribal or individually owned Indian land or BIA land. Tribal authorization means a duly adopted tribal resolution, tribal ordinance, or other appropriate tribal document authorizing the specified action. Tribal land means any tract in which the surface estate, or an undivided interest in the surface estate, is owned by one or more tribes in trust or restricted status. The term also includes the surface estate of lands held in trust for a tribe but reserved for BIA administrative purposes and includes the surface estate of lands held in trust for an Indian corporation chartered under section 17 of the Indian Reorganization Act of 1934 (25 U.S.C. 477). Tribal utility means a utility owned by one or more tribes that is established for the purpose of providing utility service, and that is certified by the tribe to meet the following requirements: (1) The combined Indian tribe ownership constitutes not less than 51 percent of the utility; (2) The Indian tribes, together, receive at least a majority of the earnings; and (3) The management and daily business operations of the utility are controlled by one or more representatives of the tribe. Trust account means a tribal account or Individual Indian Money (IIM) account for trust funds maintained by the Secretary. Trust or restricted status means: (1) That the United States holds title to the tract or interest in trust for the benefit of one or more tribes and/or individual Indians; or (2) That one or more tribes and/or individual Indians holds title to the tract or interest, but can alienate or encumber it only with the approval of the United States because of limitations in the conveyance instrument under Federal law or limitations in Federal law. Uniform Standards of Professional Appraisal Practice (USPAP) means the standards promulgated by the Appraisal Standards Board of the Appraisal Foundation to establish requirements and procedures for professional real property appraisal practice. Us/we/our means the BIA. Utility cooperative means a cooperative that provides public utilities to its members and either reinvests profits for infrastructure or distributes profits to members of the cooperative. § 169.3 To what land does this part apply? (a) This part applies to Indian land and BIA land. (b) We will not take any action on a right-of-way across fee land or collect compensation on behalf of fee interest owners. We will not condition our grant of a right-of-way across Indian land or BIA land on the applicant having obtained a right-of-way from the owners of any fee interests. The applicant will be responsible for negotiating directly with and making any payments directly to the owners of any fee interests that may exist in the property on which the right-of-way is granted. (c) We will not include the fee interests in a tract in calculating the applicable percentage of interests required for consent to a right-of-way. § 169.4 When do I need a right-of-way to authorize possession over or across Indian land? (a) You need an approved right-ofway under this part before crossing Indian land if you meet one of the criteria in the following table: then you must obtain a right-of-way under this part . . . (1) A person or legal entity (including a Federal, State, or local governmental entity) who is not an owner of the Indian land. mstockstill on DSK4VPTVN1PROD with RULES2 If you are . . . from us, with the consent of the owners of the majority interest in the land, and the tribe for tribal land, before crossing the land or any portion thereof. from us, with the consent of the owners of other trust and restricted interests in the land, totaling at least a majority interest in the tract, and with the consent of the tribe for tribal land. You do not need to obtain a right-of-way from us if all of the owners (including the tribe, for tribal land) have given you permission to cross without a right-ofway. (2) An individual Indian landowner who owns a fractional interest in the land (even if the individual Indian landowner owns a majority of the fractional interests). VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations 72537 If you are . . . then you must obtain a right-of-way under this part . . . (3) An Indian tribe, agency or instrumentality of the tribe, or an independent legal entity wholly owned and operated by the tribe who owns only a fractional interest in the land (even if the tribe, agency, instrumentality or legal entity owns a majority of the fractional interests). from us, with the consent of the owners of other trust and restricted interests in the land, totaling at least a majority interest in the tract, unless all of the owners have given you permission to cross without a right-of-way. (b) You do not need a right-of-way to cross Indian land if: (1) You are an Indian landowner who owns 100 percent of the trust or restricted interests in the land; or (2) You are authorized by: (i) A lease under 25 CFR part 162, 211, 212, or 225 or permit under 25 CFR part 166; (ii) A tribal land assignment or similar instrument authorizing use of the tribal land without Secretarial approval; or (iii) Other, tribe-specific authority authorizing use of the tribal land without Secretarial approval; or (iv) Another land use agreement not subject to this part (e.g., under 25 CFR part 84); or (3) You meet any of the criteria in the following table: You do not need a right-of-way if you are . . . but the following conditions apply . . . (i) A parent or guardian of a minor child who owns 100 percent of the trust or restricted interests in the land. We may require you to provide evidence of a direct benefit to the minor child and when the child is no longer a minor, you must obtain a right-of-way to authorize continued possession. You must file the agreement with us under § 169.56. The tribal governing body must pass a tribal authorization authorizing access without BIA approval and including a legal description, and you must submit both documents to BIA for our records. You must comply with the requirements of the applicable law. (ii) Authorized by a service line agreement to cross the land ................. (iii) An independent legal entity wholly owned and operated by the tribe that owns 100 percent of the trust or restricted interests in the land. (iv) Otherwise authorized by law .............................................................. mstockstill on DSK4VPTVN1PROD with RULES2 § 169.5 What types of rights-of-way does this part cover? (a) This part covers rights-of-way over and across Indian or BIA land, for uses including but not limited to the following: (1) Railroads; (2) Public roads and highways; (3) Access roads; (4) Service roads and trails, even where they are appurtenant to any other right-of-way purpose; (5) Public and community water lines (including pumping stations and appurtenant facilities); (6) Public sanitary and storm sewer lines (including sewage disposal and treatment plant lines); (7) Water control and use projects (including but not limited to, flowage easements, irrigation ditches and canals, and water treatment plant lines); (8) Oil and gas pipelines (including pump stations, meter stations, and other appurtenant facilities); (9) Electric transmission and distribution systems (including lines, poles, towers, telecommunication, protection, measurement and data acquisition equipment, other items necessary to operate and maintain the system, and appurtenant facilities); (10) Telecommunications, broadband, fiber optic lines; (11) Avigation hazard easements; (12) Conservation easements not covered by 25 CFR part 84, Encumbrances of Tribal Land—Contract Approvals, or 25 CFR part 162, Leases and Permits; or VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 (13) Any other new use for which a right-of-way is appropriate but which is unforeseeable as of the effective date of these regulations. (b) Each of the uses listed above includes the right to access the right-ofway to manage vegetation, inspect, maintain and repair equipment, and conduct other activities that are necessary to maintain the right-of-way use. § 169.6 What statutory authority will BIA use to act on requests for rights-of-way under this part? BIA will act on requests for rights-ofway using the authority in 25 U.S.C. 323–328, and relying on supplementary authority such as 25 U.S.C. 2218, where appropriate. § 169.7 Does this part apply to right-of-way grants submitted for approval before December 21, 2015? (a) If your right-of-way grant is issued on or after December 21, 2015, this part applies. (b) If we granted your right-of-way before December 21, 2015, the procedural provisions of this part apply except that if the procedural provisions of this part conflict with the explicit provisions of the right-of-way grant or statute authorizing the right-of-way document, then the provisions of the right-of-way grant or authorizing statute apply instead. Non-procedural provisions of this part do not apply. (c) If you submitted an application for a right-of-way but we did not grant the PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 right-of-way before December 21, 2015, then: (1) You may choose to withdraw the document and resubmit after December 21, 2015, in which case this part will apply to that document; or (2) You may choose to proceed without withdrawing, in which case: (i) We will review the application under the regulations in effect at the time of your submission; and (ii) Once we grant the right-of-way, the procedural provisions of this part apply except that if the procedural provisions of this part conflict with the explicit provisions of the right-of-way grant or statute authorizing the right-ofway document, then the provisions of the right-of-way grant or authorizing statute apply instead. Non-procedural provisions of this part do not apply. (d) For any assignments completed before December 21, 2015, the current assignee must, by April 18, 2016, provide BIA with documentation of any past assignments or notify BIA that it needs an extension and explain the reason for the extension. (e) To the maximum extent possible, BIA will interpret any ambiguous language in the right-of-way document or statute to be consistent with these regulations. § 169.8 May tribes administer this part on BIA’s behalf? A tribe or tribal organization may contract or compact under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450f et seq.) E:\FR\FM\19NOR2.SGM 19NOR2 72538 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations to administer on BIA’s behalf any portion of this part that is not a grant, approval, or disapproval of a right-ofway document, waiver of a requirement for right-of-way grant or approval (including but not limited to waivers of fair market value and valuation), cancellation of a right-of-way, or an appeal. Applicants may inquire at either the BIA office or the tribal office to determine whether the tribe has compacted or contracted to administer realty functions. § 169.9 What laws apply to rights-of-way approved under this part? In addition to the regulations in this part, rights-of-way approved under this part: (a) Are subject to all applicable Federal laws; (b) Are subject to tribal law; except to the extent that those tribal laws are inconsistent with applicable Federal law; and (c) Are generally not subject to State law or the law of a political subdivision thereof. § 169.10 What is the effect of a right-ofway on a tribe’s jurisdiction over the underlying parcel? A right-of-way is a non-possessory interest in land, and title does not pass to the grantee. The Secretary’s grant of a right-of-way will clarify that it does not diminish to any extent: (a) The Indian tribe’s jurisdiction over the land subject to, and any person or activity within, the right-of-way; (b) The power of the Indian tribe to tax the land, any improvements on the land, or any person or activity within, the right-of-way; (c) The Indian tribe’s authority to enforce tribal law of general or particular application on the land subject to and within the right-of-way, as if there were no grant of right-of-way; (d) The Indian tribe’s inherent sovereign power to exercise civil jurisdiction over non-members on Indian land; or (e) The character of the land subject to the right-of-way as Indian country under 18 U.S.C. 1151. business use, privilege, public utility, excise, gross revenue taxes) imposed by any State or political subdivision of a State; and (3) The right-of-way interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. (b) Improvements, activities, and right-of-way interests may be subject to taxation by the Indian tribe with jurisdiction. § 169.12 How does BIA provide notice to the parties to a right-of-way? When this part requires BIA to notify the parties of our intent to grant a rightof-way under § 169.107(b) or our determination to approve or disapprove a right-of-way document, and to provide any right of appeal: (a) For rights-of-way over or across tribal land, we will notify the applicant and the tribe by first class U.S. mail or, upon request, electronic mail; and (b) For rights-of-way over or across individually owned Indian land, we will notify the applicant and individual Indian landowners by first class U.S. mail or, upon request, electronic mail. If the individually owned land is located within a tribe’s jurisdiction, we will also notify the tribe by first class U.S. mail or, upon request, electronic mail. § 169.13 May decisions under this part be appealed? (a) Appeals from BIA decisions under this part may be taken under part 2 of this chapter, except our decision to disapprove a right-of-way grant or any other right-of-way document may be appealed only by the applicant or an Indian landowner of the tract over or across which the right-of-way was proposed. (b) For purposes of appeals from BIA decisions under this part, ‘‘interested party’’ is defined as any person whose land is subject to the right-of-way or located adjacent to or in close proximity to the right-of-way whose own direct economic interest is adversely affected by an action or decision. mstockstill on DSK4VPTVN1PROD with RULES2 § 169.11 What taxes apply to rights-of-way approved under this part? § 169.14 How does the Paperwork Reduction Act affect this part? (a) Subject only to applicable Federal law: (1) Permanent improvements in a right-of-way, without regard to ownership of those improvements, are not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State; (2) Activities under a right-of-way grant are not subject to any fee, tax, assessment, levy, or other charge (e.g., The collections of information in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned OMB Control Number 1076–0181. Response is required to obtain a benefit. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB Control Number. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 Subpart B—Service Line Agreements § 169.51 Is a right-of-way required for service lines? Service lines generally branch off from facilities for which a right-of-way must be obtained. A service line is a utility line running from a main line, transmission line, or distribution line that is used only for supplying telephone, water, electricity, gas, internet service, or other utility service to a house, business, or other structure. In the case of a power line, a service line is limited to a voltage of 14.5 kv or less, or a voltage of 34.5 kv or less if serving irrigation pumps and commercial and industrial uses. To obtain access to Indian land for service lines, the rightof-way grantee must file a service line agreement meeting the requirements of this subpart with BIA. § 169.52 What is a service line agreement? Service line agreements are agreements signed by a utility provider and landowners for the purpose of providing limited access to supply the owners (or authorized occupants or users) of one tract of tribal or individually owned Indian land with utilities for use by such owners (or occupants or users) on the premises. § 169.53 What should a service line agreement address? A service line agreement should address what utility services the provider will supply, to whom, and other appropriate details. The service line agreement should also address the mitigation of any damages incurred during construction and the restoration (or reclamation, if agreed to by the owners or authorized occupants or users) of the premises at the termination of the agreement. § 169.54 What are the consent requirements for service line agreements? (a) Before the utility provider may begin any work to construct service lines across tribal land, the utility provider and the tribe (or the legally authorized occupants or users of the tribal land and upon request, the tribe) must execute a service line agreement. (b) Before the utility provider may begin any work to construct service lines across individually owned land, the utility provider and the owners (or the legally authorized occupants or users) must execute a service line agreement. § 169.55 Is a valuation required for service line agreements? We do not require a valuation for service line agreements. E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations § 169.56 Must I file service line agreements with the BIA? The parties must file an executed copy of service line agreements, together with a plat or diagram, with us within 30 days after the date of execution for recording in the LTRO. The plat or diagram must show the boundary of the ownership parcel and point of connection of the service line with the distribution line. When the plat or diagram is placed on a separate sheet it must include the signatures of the parties. Subpart C—Obtaining a Right-of-Way Application § 169.101 How do I obtain a right-of-way across tribal or individually owned Indian land or BIA land? (a) To obtain a right-of-way across tribal or individually owned Indian land or BIA land, you must submit a complete application to the BIA office with jurisdiction over the land covered by the right-of-way. (b) If you must obtain access to Indian land to prepare information required by the application (e.g., to survey), you must obtain the consent of the Indian landowners, but our approval to access is not required. Upon written request, we will provide you with the names, addresses, and percentage of ownership of individual Indian landowners, to allow you to obtain the landowners’ consent to survey. (c) If the BIA will be granting the right-of-way across Indian land under § 169.107(b), then the BIA may grant permission to access the land. mstockstill on DSK4VPTVN1PROD with RULES2 § 169.102 What must an application for a right-of-way include? (a) An application for a right-of-way must identify: (1) The applicant; (2) The tract(s) or parcel(s) affected by the right-of-way; (3) The general location of the rightof-way; (4) The purpose of the right-of-way; (5) The duration of the right-of-way: and (6) The ownership of permanent improvements associated with the rightof-way and the responsibility for constructing, operating, maintaining, and managing permanent improvements under § 169.105. (b) The following must be submitted with the application: (1) An accurate legal description of the right-of-way, its boundaries, and parcels associated with the right-of-way; (2) A map of definite location of the right-of-way (this requirement does not apply to easements covering the entire tract of land); VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 (3) Bond(s), insurance, and/or other security meeting the requirements of § 169.103; (4) Record that notice of the right-ofway was provided to all Indian landowners; (5) Record of consent for the right-ofway meeting the requirements of § 169.107, or a statement requesting a right-of-way without consent under § 169.107(b); (6) If applicable, a valuation meeting the requirements of § 169.114; (7) If the applicant is a corporation, limited liability company, partnership, joint venture, or other legal entity, except a tribal entity, information such as organizational documents, certificates, filing records, and resolutions, demonstrating that: (i) The representative has authority to execute the application; (ii) The right-of-way will be enforceable against the applicant; and (iii) The legal entity is in good standing and authorized to conduct business in the jurisdiction where the land is located; (8) Environmental and archaeological reports, surveys, and site assessments, as needed to facilitate compliance with applicable Federal and tribal environmental and land use requirements; and (9) A statement from the appropriate tribal authority that the proposed use is in conformance with applicable tribal law, if required by the tribe. (c) There is no standard application form. § 169.103 What bonds, insurance, or other security must accompany the application? (a) You must include payment of bonds, insurance, or alternative forms of security with your application for a right-of-way in amounts that cover: (1) The highest annual rental specified in the grant, unless compensation is a one-time payment; (2) The estimated damages resulting from the construction of any permanent improvements; (3) The estimated damages and remediation costs from any potential release of contaminants, explosives, hazardous material or waste; (4) The operation and maintenance charges for any land located within an irrigation project; (5) The restoration of the premises to their condition at the start of the rightof-way or reclamation to some other specified condition if agreed to by the landowners. (b) The bond or other security must be deposited with us and made payable only to us, and may not be modified without our approval, except for tribal PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 72539 land in which case the bond or security may be deposited with and made payable to the tribe, and may not be modified without the approval of the tribe. Any insurance must identify both the Indian landowners and the United States as additional insured parties. (c) The grant will specify the conditions under which we may adjust the bond, insurance, or security requirements to reflect changing conditions, including consultation with the tribal landowner for tribal land before the adjustment. (d) We may require that the surety provide any supporting documents needed to show that the bond, insurance, or alternative form of security will be enforceable, and that the surety will be able to perform the guaranteed obligations. (e) The bond, insurance, or other security instrument must require the surety to provide notice to us, and the tribe for tribal land, at least 60 days before canceling a bond, insurance, or other security. This will allow us to notify the grantee of its obligation to provide a substitute bond, insurance, or other security before the cancellation date. Failure to provide a substitute bond, insurance or security is a violation of the right-of-way. (f) We may waive the requirement for a bond, insurance, or alternative form of security: (1) For individually owned Indian land, if the Indian landowners of the majority of the interests request it and we determine, in writing, that a waiver is in the Indian landowners’ best interest considering the purpose of and risks associated with the right-of-way, or if the grantee is a utility cooperative and is providing a direct benefit to the Indian land or is a tribal utility. (2) For tribal land, deferring, to the maximum extent possible, to the tribe’s determination that a waiver of a bond, insurance or alternative form of security is in its best interest. (g) We will accept a bond only in one of the following forms: (1) Certificates of deposit issued by a federally insured financial institution authorized to do business in the United States; (2) Irrevocable letters of credit issued by a federally insured financial institution authorized to do business in the United States; (3) Negotiable Treasury securities; or (4) Surety bonds issued by a company approved by the U.S. Department of the Treasury. (h) We may accept an alternative form of security approved by us that provides adequate protection for the Indian landowners and us, including but not E:\FR\FM\19NOR2.SGM 19NOR2 72540 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations limited to an escrow agreement or an assigned savings account. (i) All forms of bonds or alternative security must, if applicable: (1) State on their face that BIA approval is required for redemption; (2) Be accompanied by a statement granting full authority to BIA to make an immediate claim upon or sell them if the grantee violates the terms of the right-of-way grant; (3) Be irrevocable during the term of the bond or alternative security; and (4) Be automatically renewable during the term of the right-of-way. (j) We will not accept cash bonds. § 169.104 What is the release process for a bond or alternative form of security? Upon satisfaction of the requirements for which the bond was security, or upon expiration, termination, or cancellation of the right-of-way, the grantee may ask BIA in writing to release all or part of the bond or alternative form of security and release the grantee from the obligation to maintain insurance. Upon receiving the grantee’s request, BIA will: (a) Confirm with the tribe, for tribal land or, where feasible, with the Indian landowners for individually owned Indian land, that the grantee has complied with all applicable grant obligations; and (b) Release all or part of the bond or alternative form of security to the grantee, unless we determine that the bond or security must be redeemed to fulfill the contractual obligations. mstockstill on DSK4VPTVN1PROD with RULES2 § 169.105 What requirements for due diligence must a right-of-way grant include? (a) If permanent improvements are to be constructed, the right-of-way grant must include due diligence requirements that require the grantee to complete construction of any permanent improvements within the schedule specified in the right-of-way grant or general schedule of construction, and a process for changing the schedule by mutual consent of the parties. If construction does not occur, or is not expected to be completed, within the time period specified in the grant, the grantee must provide the Indian landowners and BIA with an explanation of good cause as to the nature of any delay, the anticipated date of construction of facilities, and evidence of progress toward commencement of construction. (b) Failure of the grantee to comply with the due diligence requirements of the grant is a violation of the grant and may lead to cancellation of the right-ofway under § 169.405 or § 169.408. (c) BIA may waive the requirements in this section if we determine, in VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 writing, that a waiver is in the best interest of the Indian landowners. Consent Requirements § 169.106 How does an applicant identify and contact individual Indian landowners to negotiate a right-of-way? (a) Applicants may submit a written request to us to obtain the following information. The request must specify that it is for the purpose of negotiating a right-of-way: (1) Names and addresses of the individual Indian landowners or their representatives; (2) Information on the location of the parcel; and (3) The percentage of undivided interest owned by each individual Indian landowner. (b) We may assist applicants in contacting the individual Indian landowners or their representatives for the purpose of negotiating a right-ofway, upon request. (c) We will attempt to assist individual Indian landowners in rightof-way negotiations, upon their request. § 169.107 Must I obtain tribal or individual Indian landowner consent for a right-of-way across Indian land? (a) For a right-of-way across tribal land, the applicant must obtain tribal consent, in the form of a tribal authorization and a written agreement with the tribe, if the tribe so requires, to a grant of right-of-way across tribal land. The consent document may impose restrictions or conditions; any restrictions or conditions automatically become conditions and restrictions in the grant. (b) For a right-of-way across individually owned Indian land, the applicant must notify all individual Indian landowners and, except as provided in paragraph (b)(1) of this section, must obtain written consent from the owners of the majority interest in each tract affected by the grant of right-of-way. (1) We may issue the grant of right-ofway without the consent of any of the individual Indian owners if all of the following conditions are met: (i) The owners of interests in the land are so numerous that it would be impracticable to obtain consent as defined in paragraph (c) of this section; (ii) We determine the grant will cause no substantial injury to the land or any landowner, based on factors including, but not limited to, the reasonableness of the term of the grant, the amount of acreage involved in the grant, the disturbance to land that will result from the grant, the type of activity to be conducted under the grant, the potential PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 for environmental or safety impacts resulting from the grant, and any objections raised by landowners; (iii) We determine that all of the landowners will be adequately compensated for consideration and any damages that may arise from a grant of right-of-way; and (iv) We provide notice of our intent to issue the grant of right-of-way to all of the owners at least 60 days prior to the date of the grant using the procedures in § 169.12, and provide landowners with 30 days to object. (2) For the purposes of this section, the owners of interests in the land are so numerous that it would be impracticable to obtain consent, if there are 50 or more co-owners of undivided trust or restricted interests. (3) Successors are bound by consent granted by their predecessors-ininterest. (c) We will determine the number of owners of, and undivided interests in, a fractionated tract of Indian land, for the purposes of calculating the requisite consent based on our records on the date on which the application is submitted to us. § 169.108 Who is authorized to consent to a right-of-way? (a) Indian tribes, adult Indian landowners, and emancipated minors, may consent to a right-of-way over or across their land, including undivided interests in fractionated tracts. (b) The following individuals or entities may consent on behalf of an individual Indian landowner: (1) An adult with legal custody acting on behalf of his or her minor children; (2) A guardian, conservator, or other fiduciary appointed by a court of competent jurisdiction to act on behalf of an individual Indian landowner; (3) Any person who is authorized to practice before the Department of the Interior under 43 CFR 1.3(b) and has been retained by the Indian landowner for this purpose; (4) BIA, under the circumstances in paragraph (c) of this section; or (5) An adult or legal entity who has been given a written power of attorney that: (i) Meets all of the formal requirements of any applicable law under § 169.9; (ii) Identifies the attorney-in-fact; and (iii) Describes the scope of the powers granted, to include granting rights-ofway on land or generally conveying or encumbering interests in Indian land, and any limits on those powers. (c) BIA may give written consent to a right-of-way on behalf of an individual Indian landowner, as long as we E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations determine that the grant will cause no substantial injury to the land or any landowner, based on factors including, but not limited to, the amount of acreage involved in the grant, the disturbance to land that will result from the grant, the type of activity to be conducted under the grant, the potential for environmental or safety impacts resulting from the grant, and any objections raised by landowners. BIA’s consent must be counted in the majority interest under § 169.107, on behalf of: (1) An individual Indian landowner, if the owner is deceased, and the heirs to, or devisees of, the interest of the deceased owner have not been determined; (2) An individual Indian landowner whose whereabouts are unknown to us, after we make a reasonable attempt to locate the individual; (3) An individual Indian landowner who is found to be non compos mentis or determined to be an adult in need of assistance who does not have a guardian duly appointed by a court of competent jurisdiction, or an individual under legal disability as defined in part 115 of this chapter; (4) An individual Indian landowner who is an orphaned minor and who does not have a guardian duly appointed by a court of competent jurisdiction; and (5) An individual Indian landowner who has given us a written power of attorney to consent to a right-of-way over or across their land. § 169.109 Whose consent do I need for a right-of-way when there is a life estate on the tract? If there is a life estate on the tract that would be subject to the right-of-way, the applicant must get the consent of both the life tenant and the owners of the majority of the remainder interest known at the time of the application. Compensation Requirements mstockstill on DSK4VPTVN1PROD with RULES2 § 169.110 How much monetary compensation must be paid for a right-ofway over or across tribal land? (a) A right-of-way over or across tribal land may allow for any payment amount negotiated by the tribe, and we will defer to the tribe and not require a valuation if the tribe submits a tribal authorization expressly stating that it: (1) Has agreed upon compensation satisfactory to the tribe; (2) Waives valuation; and (3) Has determined that accepting such agreed-upon compensation and waiving valuation is in its best interest. (b) The tribe may request, in writing, that we determine fair market value, in which case we will use a valuation in VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 accordance with § 169.114. After providing the tribe with the fair market value, we will defer to a tribe’s decision to allow for any compensation negotiated by the tribe. (c) If the conditions in paragraph (a) or (b) of this section are not met, we will require that the grantee pay fair market value based on a valuation in accordance with § 169.114. § 169.111 Must a right-of-way grant for tribal land provide for compensation reviews or adjustments? For a right-of-way grant over or across tribal land, no periodic review of the adequacy of compensation or adjustment is required, unless the tribe negotiates for reviews or adjustments. § 169.112 How much monetary compensation must be paid for a right-ofway over or across individually owned Indian land? (a) A right-of-way over or across individually owned Indian land must require compensation of not less than fair market value, unless paragraph (b) or (c) of this section permit a lesser amount. Compensation may also include additional fees, including but not limited to throughput fees, severance damages, franchise fees, avoidance value, bonuses, or other factors. Compensation may be based on a fixed amount, a percentage of the projected income, or some other method. The grant must establish how the fixed amount, percentage, or combination will be calculated and the frequency at which the payments will be made. (b) We may approve a right-of-way over or across individually owned Indian land that provides for nominal compensation, or compensation less than a fair market value, if: (1) The grantee is a utility cooperative and is providing a direct benefit to the Indian land; or (2) The grantee is a tribal utility; or (3) The individual Indian landowners execute a written waiver of the right to receive fair market value and we determine it is in the individual Indian landowners’ best interest, based on factors including, but not limited to: (i) The grantee is a member of the immediate family, as defined in § 169.2, of an individual Indian landowner; (ii) The grantee is a co-owner in the affected tract; (iii) A special relationship or circumstances exist that we believe warrant approval of the right-of-way; or (iv) We have waived the requirement for a valuation under paragraph (d) of this section. (c) We will require a valuation to determine fair market value, unless: PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 72541 (1) 100 percent of the individual Indian landowners submit to us a written request to waive the valuation requirement; or (2) We waive the requirement under paragraph (d) of this section. (d) The grant must provide that the non-consenting individual Indian landowners, and those on whose behalf we have consented under § 169.108(c), or granted the right-of-way without consent under § 169.107(b), receive fair market value, as determined by a valuation, unless: (1) The grantee is a utility cooperative and is providing a direct benefit to the Indian land; or (2) The grantee is a tribal utility; or (3) We waive the requirement because the tribe or grantee will construct infrastructure improvements benefitting the individual Indian landowners, and we determine in writing that the waiver is in the best interest of all the landowners. § 169.113 Must a right-of-way grant for individually owned Indian land provide for compensation reviews or adjustments? (a) For a right-of-way grant of individually owned Indian land, a review of the adequacy of compensation must occur at least every fifth year, in the manner specified in the grant unless: (1) Payment is a one-time lump sum; (2) The term of the right-of-way grant is 5 years or less; (3) The grant provides for automatic adjustments; or (4) We determine it is in the best interest of the Indian landowners not to require a review or automatic adjustment based on circumstances including, but not limited to, the following: (i) The right-of-way grant provides for payment of less than fair market value; (ii) The right-of-way grant provides for most or all of the compensation to be paid during the first 5 years of the grant term or before the date the review would be conducted; or (iii) The right-of-way grant provides for graduated rent or non-monetary or varying types of compensation. (b) The grant must specify: (1) When adjustments take effect; (2) Who can make adjustments; (3) What the adjustments are based on; and (4) How to resolve disputes arising from the adjustments. (c) When a review results in the need for adjustment of compensation, the Indian landowners must consent to the adjustment in accordance with § 169.107, unless the grant provides otherwise. E:\FR\FM\19NOR2.SGM 19NOR2 72542 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations § 169.114 How will BIA determine fair market value for a right-of-way? (a) We will use a market analysis, appraisal, or other appropriate valuation method to determine the fair market value before we grant a right-of-way over or across individually owned Indian land. We will also use a market analysis, appraisal, or other appropriate valuation method to determine, at the request of the tribe, the fair market value of tribal land. (b) We will either: (1) Prepare, or have prepared, a market analysis, appraisal, or other appropriate valuation method; or (2) Approve use of a market analysis, appraisal, or other appropriate valuation method from the Indian landowners or grantee. (c) We will use or approve use of a market analysis, appraisal, or other appropriate valuation method only if it: (1) Has been prepared in accordance with USPAP or a valuation method developed by the Secretary under 25 U.S.C. 2214 and complies with Departmental policies regarding appraisals, including third-party appraisals; or (2) Has been prepared by another Federal agency. § 169.115 When are monetary compensation payments due under a rightof-way? Compensation for a right-of-way may be a one-time, lump sum payment, or may be paid in increments (for example, annually). (a) If compensation is a one-time, lump sum payment, the grantee must make the payment by the date we grant the right-of-way, unless stated otherwise in the grant. (b) If compensation is to be paid in increments, the right-of-way grant must specify the dates on which all payments are due. Payments are due at the time specified in the grant, regardless of whether the grantee receives an advance billing or other notice that a payment is due. Increments may not be more frequent than quarterly if payments are made to us on the Indian landowners’ behalf. mstockstill on DSK4VPTVN1PROD with RULES2 § 169.116 Must a right-of-way specify who receives monetary compensation payments? (a) A right-of-way grant must specify whether the grantee will make payments directly to the Indian landowners (direct pay) or to us on their behalf. (b) The grantee may make payments directly to the tribe if the tribe so chooses. The grantee may make payments directly to the Indian landowners if: VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 (1) The Indian landowners’ trust accounts are unencumbered accounts; (2) There are 10 or fewer beneficial owners; and (3) One hundred percent of the beneficial owners (including those on whose behalf we have consented) agree to receive payment directly from the grantee at the start of the right-of-way. (c) If the right-of-way document provides that the grantee will directly pay the Indian landowners, then: (1) The right-of-way document must include provisions for proof of payment upon our request. (2) When we consent on behalf of an Indian landowner, the grantee must make payment to us on behalf of that landowner. (3) The grantee must send direct payments to the parties and addresses specified in the right-of-way, unless the grantee receives notice of a change of ownership or address. (4) Unless the right-of-way document provides otherwise, payments may not be made payable directly to anyone other than the Indian landowners. (5) Direct payments must continue through the duration of the right-of-way, except that: (i) The grantee must make all Indian landowners’ payments to us if 100 percent of the Indian landowners agree to suspend direct pay and provide us with documentation of their agreement; and (ii) The grantee must make an individual Indian landowner’s payment to us if that individual Indian landowner dies, is declared non compos mentis, owes a debt resulting in an encumbered account, or his or her whereabouts become unknown. § 169.117 What form of monetary compensation is acceptable under a rightof-way? and varying types of compensation, subject to the conditions in paragraphs (b) and (c) of this section: (1) Alternative forms of compensation may include but are not limited to, inkind consideration and payments based on throughput or percentage of income; or (2) Varying types of compensation may include but are not limited to different types of payments at specific stages during the life of the right-of-way grant, such as fixed annual payments during construction, payments based on income during an operational period, and bonuses. (b) For tribal land, we will defer to the tribe’s determination that the compensation under paragraph (a) of this section is in its best interest, if the tribe submits a signed certification or tribal authorization stating that it has determined the alternative form of compensation or varying type of compensation to be in its best interest. (c) For individually owned land, we may grant a right-of-way that provides for an alternative form of compensation or varying type of compensation if we determine that it is in the best interest of the Indian landowners. § 169.119 Will BIA notify a grantee when a payment is due for a right-of-way? Upon request of the Indian landowners, we may issue invoices to a grantee in advance of the dates on which payments are due under the right-of-way. The grantee’s obligation to make these payments in a timely manner will not be excused if invoices are not issued, delivered, or received. § 169.120 What other types of payments are required for a right-of-way? (a) If payments are made to us on behalf of the Indian landowners, our preferred method of payment is electronic funds transfer payments. We will also accept: (1) Money orders; (2) Personal checks; (3) Certified checks; or (4) Cashier’s checks. (b) We will not accept cash or foreign currency. (c) We will accept third-party checks only from financial institutions or Federal agencies. (d) The grant of right-of-way will specify the payment method if payments are made by direct pay. (a) The grantee may be required to pay additional fees, taxes, and assessments associated with the application for use of the land or use of the land, as determined by entities having jurisdiction, except as provided in § 169.11. The grantee must pay these amounts to the appropriate office, as applicable. (b) In addition to, or as part of, the compensation for a right-of-way under §§ 169.110 and 169.112 and the payments provided for in paragraph (a) of this section, the applicant for a rightof-way will be required to pay for all damages to the land, such as those incident to the construction or maintenance of the facility for which the right-of-way is granted. § 169.118 May the right-of-way provide for non-monetary or varying types of compensation? § 169.121 How will compensation be distributed among the life tenants and owners of the remainder interests? (a) A right-of-way grant may provide for alternative forms of compensation If a will created the life estate and specifies how the compensation will be PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations distributed among the life tenants and owners of the remainder interests, those terms will establish the distribution. Otherwise: (a) The owners of the remainder interests and the life tenant may enter into a right-of-way or other written agreement approved by the Secretary providing for the distribution of rent monies under the right-of-way; or (b) If the owners of the remainder interests and life tenant did not enter into an agreement for distribution, the life tenant will receive payment in accordance with the distribution and calculation scheme set forth in part 179 of this chapter. § 169.122 Who does the grantee pay if there is a life estate on the tract? The grantee must pay compensation directly to the life tenant under the terms of the right-of-way unless the whereabouts of the life tenant are unknown, in which case we may collect compensation on behalf of the life tenant. Grants of Rights-of-Way mstockstill on DSK4VPTVN1PROD with RULES2 § 169.123 What is the process for BIA to grant a right-of-way? (a) Before we grant a right-of-way, we must determine that the right-of-way is in the best interest of the Indian landowners. In making that determination, we will: (1) Review the right-of-way application and supporting documents; (2) Identify potential environmental impacts and adverse impacts, and ensure compliance with all applicable Federal environmental, land use, historic preservation, and cultural resource laws and ordinances; and (3) Require any modifications or mitigation measures necessary to satisfy any requirements including any other Federal or tribal land use requirements. (b) Upon receiving a right-of-way application, we will promptly notify the applicant whether the package is complete. A complete package includes all of the information and supporting documents required under this subpart, including but not limited to, an accurate legal description for each affected tract, documentation of landowner consent, NEPA review documentation and valuation documentation, where applicable. (1) If the right-of-way application package is not complete, our letter will identify the missing information or documents required for a complete package. If we do not respond to the submission of an application package, the parties may take action under § 169.304. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 (2) If the right-of-way application package is complete, we will notify the applicant of the date of our receipt of the complete package. Within 60 days of our receipt of a complete package, we will grant or deny the right-of-way, return the package for revision, or inform the applicant in writing that we need additional review time. If we inform the applicant in writing that we need additional time, then: (i) Our letter informing the applicant that we need additional review time must identify our initial concerns and invite the applicant to respond within 15 days of the date of the letter; and (ii) We will issue a written determination granting or denying the right-of-way within 30 days from sending the letter informing the applicant that we need additional time. (c) If we do not meet the deadlines in this section, then the applicant may take appropriate action under § 169.304. (d) We will provide any right-of-way denial and the basis for the determination, along with notification of any appeal rights under part 2 of this chapter to the parties to the right-ofway. If the right-of-way is granted, we will provide a copy of the right-of-way to the tribal landowner and, upon written request, make copies available to the individual Indian landowners, and provide notice under § 169.12. § 169.124 How will BIA determine whether to grant a right-of-way? Our decision to grant or deny a rightof-way will be in writing. (a) We will grant a right-of-way unless: (1) The requirements of this subpart have not been met, such as if the required landowner consent has not been obtained under § 169.107; or (2) We find a compelling reason to withhold the grant in order to protect the best interests of the Indian landowners. (b) We will defer, to the maximum extent possible, to the Indian landowners’ determination that the right-of-way is in their best interest. (c) We may not unreasonably withhold our grant of a right-of-way. (d) We may grant one right-of-way for all of the tracts traversed by the rightof-way, or we may issue separate grants for one or more tracts traversed by the right-of-way. § 169.125 What will the grant of right-ofway contain? (a) The grant will incorporate the conditions or restrictions set out in the Indian landowners’ consents. (b) The grant will address: (1) The use(s) the grant is authorizing; PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 72543 (2) Whether assignment of the rightof-way is permitted and, if so, whether additional consent is required for the assignment and whether any additional compensation is owed to the landowners; (3) Whether mortgaging of the rightof-way is permitted and, if so, whether additional consent is required for the mortgage and whether any additional compensation is owed to the landowners; and (4) Ownership of permanent improvements under § 169.130. (c) The grant will state that: (1) The tribe maintains its existing jurisdiction over the land, activities, and persons within the right-of-way under § 169.10 and reserves the right of the tribe to reasonable access to the lands subject to the grant to determine grantee’s compliance with consent conditions or to protect public health and safety; (2) The grantee has no right to any of the products or resources of the land, including but not limited to, timber, forage, mineral, and animal resources, unless otherwise provided for in the grant; (3) BIA may treat any provision of a grant that violates Federal law as a violation of the grant; and (4) If historic properties, archeological resources, human remains, or other cultural items not previously reported are encountered during the course of any activity associated with this grant, all activity in the immediate vicinity of the properties, resources, remains, or items will cease and the grantee will contact BIA and the tribe with jurisdiction over the land to determine how to proceed and appropriate disposition. (5) The grantee must: (i) Construct and maintain improvements within the right-of-way in a professional manner consistent with industry standards; (ii) Pay promptly all damages and compensation, in addition to bond or alternative form of security made pursuant to § 169.103, determined by the BIA to be due the landowners and authorized users and occupants of land as a result of the granting, construction, and maintenance of the right-of-way; (iii) Restore the land as nearly as may be possible to its original condition, upon the completion of construction, to the extent compatible with the purpose for which the right-of-way was granted, or reclaim the land if agreed to by the landowners; (iv) Clear and keep clear the land within the right-of-way, to the extent compatible with the purpose of the right-of-way, and dispose of all E:\FR\FM\19NOR2.SGM 19NOR2 72544 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 vegetative and other material cut, uprooted, or otherwise accumulated during the construction and maintenance of the project; (v) Comply with all applicable laws and obtain all required permits; (vi) Not commit waste; (vii) Operate, repair and maintain improvements consistent with the rightof-way grant; (viii) Build and maintain necessary and suitable crossings for all roads and trails that intersect the improvements constructed, maintained, or operated under the right-of-way; (ix) Restore the land to its original condition, to the maximum extent reasonably possible, upon cancellation or termination of the right-of-way, or reclaim the land if agreed to by the landowners; (x) At all times keep the BIA, and the tribe for tribal land, informed of the grantee’s address; (xi) Refrain from interfering with the landowner’s use of the land, provided that the landowner’s use of the land is not inconsistent with the right-of-way; (xii) Comply with due diligence requirements under § 169.105; and (xiii) Notify the BIA, and the tribe for tribal land, if it files for bankruptcy or is placed in receivership. (6) Unless the grantee would be prohibited by law from doing so, the grantee must also: (i) Hold the United States and the Indian landowners harmless from any loss, liability, or damages resulting from the applicant’s use or occupation of the premises; and (ii) Indemnify the United States and the Indian landowners against all liabilities or costs relating to the use, handling, treatment, removal, storage, transportation, or disposal of hazardous materials, or release or discharge of any hazardous material from the premises that occurs during the term of the grant, regardless of fault, with the exception that the applicant is not required to indemnify the Indian landowners for liability or cost arising from the Indian landowners’ negligence or willful misconduct. (d) The grant must attach or include by reference maps of definite location. § 169.126 May a right-of-way contain a preference consistent with tribal law for employment of tribal members? A grant of right-of-way over or across Indian land may include a provision, consistent with tribal law, requiring the grantee to give a preference to qualified tribal members, based on their political affiliation with the tribe. VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 § 169.127 Is a new right-of-way grant required for a new use within or overlapping an existing right-of-way? (a) If you are the grantee, you may use all or a portion of an existing right-ofway for a use not specified in the original grant of the existing right-ofway only if it is within the same scope of the use specified in the original grant of the existing right-of-way. (1) If you propose to use all or a portion of an existing right-of-way for a use not specified in the original grant of the existing right-of-way and not within the same scope of the use specified in the original grant of the existing rightof-way, and the new use will not require any ground disturbance, you must request an amendment to the existing right-of-way grant. (2) If you propose to use all or a portion of an existing right-of-way for a use not specified in the original grant of the existing right-of-way and not within the same scope of the use specified in the original grant of the existing rightof-way, and the new use requires ground disturbance, you must request a new right-of-way. (b) If you are not the grantee: (1) You may use all or a portion of an existing right-of-way for a use specified in the original grant of the existing rightof-way or a use within the same scope of the use specified in the original grant of the existing right-of-way if the grantee obtains an assignment to authorize the new user; or (2) You may use all or a portion of an existing right-of-way for a use not specified in the original grant of the existing right-of-way and not within the same scope of use specified in the original grant of the existing right-ofway if you request a new right-of-way within or overlapping the existing rightof-way for the new use. (c) An example of a use within the same scope is a right-of-way for underground telephone line being used for an underground fiber optic line, and an example of a use that is not within the same scope is a right-of-way for a pipeline being used for a road or railroad. § 169.128 When will BIA grant a right-ofway for a new use within or overlapping an existing right-of-way? We may grant a new right-of-way within or overlapping an existing rightof-way if it meets the following conditions: (a) The applicant follows the procedures and requirements in this part to obtain a new right-of-way. (b) The new right-of-way does not interfere with the use or purpose of the existing right-of-way and the applicant PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 has obtained the consent of the existing right-of-way grantee. The existing rightof-way grantee may not unreasonably withhold consent. § 169.129 What is required if the location described in the original application and grant differs from the construction location? (a) If engineering or other complications prevented construction within the location identified in the original application and grant, and required a minor deviation from the location identified in the original application and grant, then we and the tribe, for tribal land, will determine whether the change in location requires one or more of the following: (1) An amended map of definite location; (2) Landowner consent; (3) A valuation or, with landowner consent, a recalculation of compensation; (4) Additional compensation or security; or (5) Other actions required to comply with applicable laws. (b) If BIA and the tribe, for tribal land, determine it is not a minor deviation in location, we may require a new right-ofway grant or amendment to the right-ofway grant. (c) If we grant a right-of-way for the new route or location, the applicant must execute instruments to extinguish, or amend, as appropriate, the right-ofway at the original location identified in the application. (d) We will transmit the instruments to extinguish or amend the right-of-way to the LTRO for recording. § 169.130 Must a right-of-way grant address ownership of permanent improvements? (a) A right-of-way grant must specify who will own any permanent improvements the grantee constructs during the grant term and may specify under what conditions, if any, permanent improvements the grantee constructs may be conveyed to the Indian landowners during the grant term. In addition, the grant may indicate whether each specific permanent improvement the grantee constructs will: (1) Remain on the premises, upon the expiration, cancellation, or termination of the grant, in a condition satisfactory to the Indian landowners, and become the property of the Indian landowners; (2) Be removed within a time period specified in the grant, at the grantee’s expense, with the premises to be restored as closely as possible to their condition before construction of the permanent improvements; or E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations (3) Be disposed of by other specified means. (b) A grant that requires the grantee to remove the permanent improvements must also provide the Indian landowners with an option to take possession of and title to the permanent improvements if the improvements are not removed within the specified time period. Subpart D—Duration, Renewals, Amendments, Assignments, Mortgages Duration & Renewals § 169.201 How long may the duration of a right-of-way grant be? (a) All rights-of-way granted under this part are limited to the time periods stated in the grant. (b) For tribal land, we will defer to the tribe’s determination that the right-ofway term is reasonable. (c) For individually owned Indian land, we will review the right-of-way duration to ensure that it is reasonable, given the purpose of the right-of-way. We will generally consider a maximum duration of 20 years to be reasonable for the initial term for rights-of-way for oil and gas purposes and a maximum of 50 years, inclusive of the initial term and any renewals, to be reasonable for rights-of-way for all other purposes. We will consider a duration consistent with use to be reasonable for rights-of-way for conservation easements. We will consider durations different from these guidelines if a different duration would benefit the Indian landowners, is required by another Federal agency, or the tribe has negotiated for a different duration and the right-of-way crosses tribal land. mstockstill on DSK4VPTVN1PROD with RULES2 § 169.202 Under what circumstances will a grant of right-of-way be renewed? A renewal is an extension of term of an existing right-of-way without any other change. (a) The grantee may request a renewal of an existing right-of-way grant and we will renew the grant as long as: (1) The initial term and renewal terms, together, do not exceed the maximum term determined to be reasonable under § 169.201; (2) The existing right-of-way grant explicitly allows for automatic renewal or an option to renew and specifies compensation owed to the landowners upon renewal or how compensation will be determined; (3) The grantee provides us with a signed affidavit that there is no change in size, type, or location, of the right-ofway; (4) The initial term has not yet ended; VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 (5) No uncured violation exists regarding the regulations in this part or the grant’s conditions or restrictions; and (6) The grantee provides confirmation that landowner consent has been obtained, or if consent is not required because the original right-of-way grant explicitly allows for renewal without the owners’ consent, the grantee provides notice to the landowners of the renewal. (b) We will record any renewal of a right-of-way grant in the LTRO. (c) If the proposed renewal involves any change to the original grant or the original grant was silent as to renewals, the grantee must reapply for a new right-of-way, in accordance with § 169.101, and we will handle the application for renewal as an original application for a right-of-way. § 169.203 May a right-of-way be renewed multiple times? There is no prohibition on renewing a right-of-way multiple times, unless the grant expressly prohibits multiple renewals, and subject to the duration limitations for individually owned land in § 169.201. The provisions of § 169.202 apply to each renewal. Amendments § 169.204 way? May a grantee amend a right-of- (a) An amendment is required to change any provisions of a right-of-way grant. If the change is a material change to the grant, we may require application for a new right-of-way instead. (b) A grantee may request that we amend a right-of-way to make an administrative modification (i.e., a modification that is clerical in nature, for example to correct the legal description) without meeting consent requirements, as long as the grantee provides landowners with written notice. For all other amendments, the grantee must meet the consent requirements in § 169.107 and obtain our approval. § 169.205 What is the approval process for an amendment of a right-of-way? (a) When we receive an amendment for our approval, we will notify the grantee of the date we receive it. We have 30 days from receipt of the executed amendment, proof of required consents, and required documentation (including but not limited to a corrected legal description, if any, and NEPA compliance) to approve or disapprove the amendment. Our determination whether to approve the amendment will be in writing and will state the basis for our approval or disapproval. PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 72545 (b) If we need additional time to review, our letter informing the parties that we need additional time for review must identify our initial concerns and invite the parties to respond within 15 days of the date of the letter. We have 30 days from sending the letter informing the parties that we need additional time to approve or disapprove the amendment. (c) If we do not meet the deadline in paragraph (a) of this section, or paragraph (b) of this section if applicable, the grantee or Indian landowners may take appropriate action under § 169.304. § 169.206 How will BIA decide whether to approve an amendment of a right-of-way? (a) We may disapprove a request for an amendment of a right-of-way only if at least one of the following is true: (1) The Indian landowners have not consented to the amendment under § 169.107 and we have not consented on their behalf under § 169.108; (2) The grantee’s sureties for the bonds or alternative securities have not consented; (3) The grantee is in violation of the right-of-way grant; (4) The requirements of this subpart have not been met; or (5) We find a compelling reason to withhold approval in order to protect the best interests of the Indian landowners. (b) We will defer, to the maximum extent possible, to the Indian landowners’ determination that the amendment is in their best interest. (c) We may not unreasonably withhold approval of an amendment. Assignments § 169.207 way? May a grantee assign a right-of- (a) A grantee may assign a right-ofway by: (1) Meeting the consent requirements in § 169.107, unless the grant expressly allows for assignments without further consent; and (2) Either obtaining our approval, or meeting the conditions in paragraph (b) of this section. (b) A grantee may assign a right-ofway without BIA approval only if: (1) The original right-of-way grant expressly allows for assignment without BIA approval; and (2) The assignee and grantee provide a copy of the assignment and supporting documentation to BIA for recording in the LTRO within 30 days of the assignment. (c) Assignments that are the result of a corporate merger, acquisition, or transfer by operation of law are E:\FR\FM\19NOR2.SGM 19NOR2 72546 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations excluded from these requirements, except for the requirement to provide a copy of the assignment and supporting documentation to BIA for recording in the LTRO within 30 days and to the tribe for tribal land. § 169.208 What is the approval process for an assignment of a right-of-way? (a) When we receive an assignment for our approval, we will notify the grantee of the date we receive it. If our approval is required, we have 30 days from receipt of the executed assignment, proof of any required consents, and any required documentation to approve or disapprove the assignment. Our determination whether to approve the assignment will be in writing and will state the basis for our approval or disapproval. (b) If we do not meet the deadline in this section, the grantee or Indian landowners may take appropriate action under § 169.304. § 169.209 How will BIA decide whether to approve an assignment of a right-of-way? (a) We may disapprove an assignment of a right-of-way only if at least one of the following is true: (1) The Indian landowners have not consented to the assignment under § 169.107 and their consent is required; (2) Sufficient bonding and/or insurance are not in place; (3) The grantee is in violation of the right-of-way grant; (4) The assignee does not agree to be bound by the terms of the right-of-way grant; (5) The requirements of this subpart have not been met; or (6) We find a compelling reason to withhold approval in order to protect the best interests of the Indian landowners. (b) We will defer, to the maximum extent possible, to the Indian landowners’ determination that the assignment is in their best interest. (c) We may not unreasonably withhold approval of an assignment. Mortgages mstockstill on DSK4VPTVN1PROD with RULES2 § 169.210 of-way? May a grantee mortgage a right- A grantee may mortgage a right-ofway, if the grant expressly allows mortgaging. The grantee must meet the consent requirements in § 169.107, unless the grant expressly allows for mortgaging without consent, and must obtain our approval for the mortgage. § 169.211 What is the approval process for a mortgage of a right-of-way? (a) When we receive a right-of-way mortgage for our approval, we will VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 notify the grantee of the date we receive it. We have 30 days from receipt of the executed mortgage, proof of required consents, and required documentation to approve or disapprove the mortgage. Our determination whether to approve the mortgage will be in writing and will state the basis for our approval or disapproval. (b) If we do not meet the deadline in this section, the grantee or Indian landowners may take appropriate action under § 169.304. § 169.212 How will BIA decide whether to approve a mortgage of a right-of-way? (a) We may disapprove a right-of-way mortgage only if at least one of the following is true: (1) The Indian landowners have not consented; (2) The grantee’s sureties for the bonds have not consented; (3) The requirements of this subpart have not been met; or (4) We find a compelling reason to withhold approval in order to protect the best interests of the Indian landowners. (b) In making the finding required by paragraph (a)(4) of this section, we may consider whether: (1) The mortgage proceeds would be used for purposes unrelated to the rightof-way purpose; and (2) The mortgage is limited to the right-of-way. (c) We will defer, to the maximum extent possible, to the Indian landowners’ determination that the mortgage is in their best interest. (d) We may not unreasonably withhold approval of a right-of-way mortgage. Subpart E—Effectiveness § 169.301 When will a right-of-way document be effective? (a) A right-of-way document will be effective on the date we approve the right-of-way document, even if an appeal is filed under part 2 of this chapter. (b) The right-of-way document may specify a date on which the grantee’s obligations are triggered. Such date may be before or after the approval date under paragraph (a) of this section. § 169.302 Must a right-of-way be recorded? (a) Any right-of-way document must be recorded in our LTRO with jurisdiction over the affected Indian land. (1) We will record the right-of-way document immediately following our approval or granting. (2) In the case of assignments that do not require our approval under PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 § 169.207(b), the parties must provide us with a copy of the assignment and we will record the assignment in the LTRO with jurisdiction over the affected Indian land. (b) The tribe must record right-of-way documents for the following types of rights-of-way in the LTRO with jurisdiction over the affected Indian lands, even though BIA approval is not required: (1) Grants on tribal land for a tribal utility under § 169.4; (2) Grants on tribal land under a special act of Congress authorizing grants without our approval under certain conditions. § 169.303 What happens if BIA denies a right-of-way document? If we deny the right-of-way grant, renewal, amendment, assignment, or mortgage, we will notify the parties immediately and advise the landowners and the applicant of their right to appeal the decision under part 2 of this chapter. § 169.304 What happens if BIA does not meet a deadline for issuing a decision on a right-of-way document? (a) If a Superintendent does not meet a deadline for granting or denying a right-of-way, renewal, amendment, assignment, or mortgage, the parties may file a written notice to compel action with the appropriate Regional Director. (b) The Regional Director has 15 days from receiving the notice to: (1) Grant or deny the right-of-way; or (2) Order the Superintendent to grant or deny the right-of-way within the time set out in the order. (c) Either party may file a written notice to compel action with the BIA Director if: (1) The Regional Director does not meet the deadline in paragraph (b) of this section; (2) The Superintendent does not grant or deny the right-of-way within the time set by the Regional Director under paragraph (b)(2) of this section; or (3) The initial decision on the rightof-way, renewal, amendment, assignment, or mortgage is with the Regional Director, and he or she does not meet the deadline for such decision. (d) The BIA Director has 15 days from receiving the notice to: (1) Grant or deny the right-of-way; or (2) Order the Regional Director or Superintendent to grant or deny the right-of-way within the time set out in the order. (e) If the Regional Director or Superintendent does not grant or deny the right-of-way within the time set out E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations in the order under paragraph (d)(2) of this section, then the BIA Director must issue a decision within 15 days from the expiration of the time set out in the order. (f) The parties may file an appeal from our inaction to the Interior Board of Indian Appeals if the BIA Director does not meet the deadline in paragraph (d) or (e) of this section. (g) The provisions of 25 CFR 2.8 do not apply to the inaction of BIA officials with respect to a granting or denying a right-of-way, renewal, amendment, assignment, or mortgage under this subpart. § 169.305 Will BIA require an appeal bond for an appeal of a decision on a right-of-way document? (a) If a party appeals our decision on a right-of-way document, then the official to whom the appeal is made may require the appellant to post an appeal bond in accordance with part 2 of this chapter. We will not require an appeal bond if the tribe is a party to the appeal and requests a waiver of the appeal bond. (b) The appellant may not appeal the appeal bond decision. The appellant may, however, request that the official to whom the appeal is made reconsider the bond decision, based on extraordinary circumstances. Any reconsideration decision is final for the Department. Subpart F—Compliance and Enforcement § 169.401 What is the purpose and scope of this subpart? This subpart describes the procedures we use to address compliance and enforcement related to rights-of-way on Indian land. Any abandonment, nonuse, or violation of the right-of-way grant or right-of-way document, including but not limited to encroachments beyond the defined boundaries, accidental, willful, and/or incidental trespass, unauthorized new construction, changes in use not permitted in the grant, and late or insufficient payment may result in enforcement actions including, but not limited to, cancellation of the grant. mstockstill on DSK4VPTVN1PROD with RULES2 § 169.402 Who may investigate compliance with a right-of-way? (a) BIA may investigate compliance with a right-of-way. (1) If an Indian landowner notifies us that a specific abandonment, non-use, or violation has occurred, we will promptly initiate an appropriate investigation. (2) We may enter the Indian land subject to a right-of-way at any VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 reasonable time, upon reasonable notice, and consistent with any notice requirements under applicable tribal law and applicable grant documents, to protect the interests of the Indian landowners and to determine if the grantee is in compliance with the requirements of the right-of-way. (b) The tribe with jurisdiction may investigate compliance consistent with tribal law. § 169.403 May a right-of-way provide for negotiated remedies? (a) The tribe and the grantee on tribal land may negotiate remedies for a violation, abandonment, or non-use. The negotiated remedies must be stated in the tribe’s consent to the right-of-way grant, which BIA will then incorporate into the grant itself. The negotiated remedies may include, but are not limited to, the power to terminate the right-of-way grant. If the negotiated remedies provide one or both parties with the power to terminate the grant: (1) BIA approval of the termination is not required; (2) The termination is effective without BIA cancellation; and (3) The tribe must provide us with written notice of the termination so that we may record it in the LTRO. (b) The Indian landowners and the grantee to a right-of-way grant on individually owned Indian land may negotiate remedies, so long as the consent also specifies the manner in which those remedies may be exercised by or on behalf of the Indian landowners of the majority interest under § 169.107. If the negotiated remedies provide one or both parties with the power to terminate the grant: (1) BIA concurrence with the termination is required to ensure that the Indian landowners of the applicable percentage of interests have consented; and (2) BIA will record the termination in the LTRO. (c) The parties must notify any surety of any violation that may result in termination and the termination of a right-of-way. (d) Negotiated remedies may apply in addition to, or instead of, the cancellation remedy available to us, as specified in the right-of-way grant. The landowners may request our assistance in enforcing negotiated remedies. (e) A right-of-way grant may provide that violations will be addressed by a tribe, and that disputes will be resolved by a tribal court, any other court of competent jurisdiction, or by a tribal governing body in the absence of a tribal court, or through an alternative dispute resolution method. We may not be PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 72547 bound by decisions made in such forums, but we will defer to ongoing actions or proceedings, as appropriate, in deciding whether to exercise any of the remedies available to us. § 169.404 What will BIA do about a violation of a right-of-way grant? (a) In the absence of actions or proceedings described in § 169.403 (negotiated remedies), or if it is not appropriate for us to defer to the actions or proceedings, we will follow the procedures in paragraphs (b) and (c) of this section. We will consult with the tribe for tribal land or, where feasible, communicate with Indian landowners for individually owned Indian land, and determine whether a violation has occurred. (b) If we determine there has been a violation of the conditions of a grant, other than a violation of payment provisions covered by paragraph (c) of this section, we will promptly send the grantee a written notice of violation. (1) We will send a copy of the notice of violation to the tribe for tribal land, or provide constructive notice to Indian landowners for individually owned Indian land. (2) The notice of violation will advise the grantee that, within 10 business days of the receipt of a notice of violation, the grantee must: (i) Cure the violation and notify us, and the tribe for tribal land, in writing that the violation has been cured; (ii) Dispute our determination that a violation has occurred; or (iii) Request additional time to cure the violation. (3) The notice of violation may order the grantee to cease operations under the right-of-way grant. (c) A grantee’s failure to pay compensation in the time and manner required by a right-of-way grant is a violation, and we will issue a notice of violation in accordance with this paragraph. (1) We will send the grantees a written notice of violation promptly following the date on which the payment was due. (2) We will send a copy of the notice of violation to the tribe for tribal land, or provide constructive notice to the Indian landowners for individually owned Indian land. (3) The notice of violation will require the grantee to provide adequate proof of payment. (d) The grantee will continue to be responsible for the obligations in the grant until the grant expires, or is terminated or cancelled, as well as any reclamation or other obligations that survive the end of the grant. E:\FR\FM\19NOR2.SGM 19NOR2 72548 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES2 § 169.405 What will BIA do if the grantee does not cure a violation of a right-of-way grant on time? (a) If the grantee does not cure a violation of a right-of-way grant within the required time period, or provide adequate proof of payment as required in the notice of violation, we will consult with the tribe for tribal land or, where feasible, communicate with Indian landowners for individually owned Indian land, and determine whether: (1) We should cancel the grant; (2) The Indian landowners wish to invoke any remedies available to them under the grant; (3) We should invoke other remedies available under the grant or applicable law, including collection on any available bond or, for failure to pay compensation, referral of the debt to the Department of the Treasury for collection; or (4) The grantee should be granted additional time in which to cure the violation. (b) Following consultation with the tribe for tribal land or, where feasible, communication with Indian landowners for individually owned Indian land, we may take action to recover unpaid compensation and any associated late payment charges. (1) We need not cancel the grant or give any further notice to the grantee before taking action to recover unpaid compensation. (2) We may take action to recover any unpaid compensation even though we cancel the grant. (c) If we decide to cancel the grant, we will send the grantee a cancellation letter by certified mail, return receipt requested, within 5 business days of our decision. We will send a copy of the cancellation letter to the tribe for tribal land, and will provide Indian landowners for individually owned Indian land with actual notice of the cancellation. The cancellation letter will: (1) Explain the grounds for cancellation; (2) If applicable, notify the grantee of the amount of any unpaid compensation or late payment charges due under the grant; (3) Notify the grantee of the grantee’s right to appeal under part 2 of this chapter, including the possibility that the official to whom the appeal is made may require the grantee to post an appeal bond; (4) Order the grantee to vacate the property within the timeframe reflected in the termination terms of the grant, or within 31 days of the date of receipt of the cancellation letter, or within such VerDate Sep<11>2014 17:40 Nov 18, 2015 Jkt 238001 longer period of time in extraordinary circumstances considering the protection of trust resources and the best interest of the Indian landowners, if an appeal is not filed by that time; and (5) Order the grantee to take any other action BIA deems necessary to protect the Indian land. (d) We may invoke any other remedies available to us under the grant, including collecting on any available bond, and the Indian landowners may pursue any available remedies under tribal law. (e) We will issue an appropriate instrument cancelling the right-of-way and transmit it to the LTRO pursuant to 25 CFR part 150 for recording and filing. § 169.406 Will late payment charges, penalties, or special fees apply to delinquent payments due under a right-ofway grant? (a) Late payment charges and penalties will apply as specified in the grant. The failure to pay these amounts will be treated as a violation. (b) We may assess the following special fees to cover administrative costs incurred by the United States in the collection of the debt, if compensation is not paid in the time and manner required, in addition to the late payment charges that must be paid to the Indian landowners under the grant: The grantee will pay . . . For . . . (1) $50.00 .................. Any dishonored check. Processing of each notice or demand letter. Treasury processing following referral for collection of delinquent debt. (2) $15.00 .................. (3) 18 percent of balance due. § 169.407 How will payment rights relating to a right-of-way grant be allocated? The right-of-way grant may allocate rights to payment for any proceeds, trespass damages, condemnation awards, settlement funds, and other payments between the Indian landowners and the grantee. If not specified in the grant, applicable policy, order, award, judgment, or other document, the Indian landowners will be entitled to receive these payments. § 169.408 What is the process for cancelling a right-of-way for non-use or abandonment? (a) We may cancel, in whole or in part, any rights-of-way granted under this part 30 days after mailing written notice to the grantee at its latest address, for a nonuse of the right-of-way for a PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 consecutive 2-year period for the purpose for which it was granted. If the grantee fails to correct the basis for cancellation by the 30th day after we mailed the notice, we will issue an appropriate instrument cancelling the right-of-way and transmit it to the LTRO pursuant to part 150 of this chapter for recording and filing. (b) We may cancel, in whole or in part, any rights-of-way granted under this part immediately upon abandonment of the right-of-way by the grantee. We will issue an appropriate instrument cancelling the right-of-way and transmit it to the LTRO pursuant to part 150 of this chapter for recording and filing. (c) The cancellation notice will notify the grantee of the grantee’s right to appeal under part 2 of this chapter, including the possibility of that the official to whom the appeal is made will require the grantee to post an appeal bond. § 169.409 When will a cancellation of a right-of-way grant be effective? (a) A cancellation involving a right-ofway grant will not be effective until 31 days after the grantee receives a cancellation letter from us, or 41 days from the date we mailed the letter, whichever is earlier. (b) The cancellation decision will not be effective if an appeal is filed unless the cancellation is made immediately effective under part 2 of this chapter. When a cancellation decision is not immediately effective, the grantee must continue to pay compensation and comply with the other terms of the grant. § 169.410 What will BIA do if a grantee remains in possession after a right-of-way expires or is terminated or cancelled? If a grantee remains in possession after the expiration, termination, or cancellation of a right-of-way, and is not accessing the land to perform reclamation or other remaining grant obligations, we may treat the unauthorized possession as a trespass under applicable law and will communicate with the Indian landowners in making the determination whether to treat the unauthorized possession as a trespass. Unless the parties have notified us in writing that they are engaged in good faith negotiations to renew or obtain a new right-of-way, we may take action to recover possession on behalf of the Indian landowners, and pursue any additional remedies available under applicable law, such as a forcible entry and detainer action. The holdover time will be charged against the new term. E:\FR\FM\19NOR2.SGM 19NOR2 Federal Register / Vol. 80, No. 223 / Thursday, November 19, 2015 / Rules and Regulations § 169.411 Will BIA appeal bond regulations apply to cancellation decisions involving right-of-way grants? (a) Except as provided in paragraph (b) of this section, the appeal bond provisions in part 2 of this chapter will govern appeals from right-of-way cancellation decisions. (b) The grantee may not appeal the appeal bond decision. The grantee may, however, request that the official to whom the appeal is made reconsider the appeal bond decision, based on extraordinary circumstances. Any reconsideration decision is final for the Department. § 169.412 When will BIA issue a decision on an appeal from a right-of-way decision? BIA will issue a decision on an appeal from a right-of-way decision within 60 days of receipt of all pleadings. § 169.413 What if an individual or entity takes possession of or uses Indian land or BIA land without a right-of-way or other proper authorization? mstockstill on DSK4VPTVN1PROD with RULES2 If an individual or entity takes possession of, or uses, Indian land or VerDate Sep<11>2014 17:12 Nov 18, 2015 Jkt 238001 BIA land without a right-of-way and a right-of-way is required, the unauthorized possession or use is a trespass. An unauthorized use within an existing right-of-way is also a trespass. We may take action to recover possession, including eviction, on behalf of the Indian landowners and pursue any additional remedies available under applicable law. The Indian landowners may pursue any available remedies under applicable law, including applicable tribal law. § 169.414 May BIA take emergency action if Indian land is threatened? (a) We may take appropriate emergency action if there is a natural disaster or if an individual or entity causes or threatens to cause immediate and significant harm to Indian land or BIA land. Emergency action may include judicial action seeking immediate cessation of the activity resulting in or threatening the harm. (b) We will make reasonable efforts to notify the individual Indian landowners before and after taking emergency action PO 00000 Frm 00059 Fmt 4701 Sfmt 9990 72549 on Indian land. In all cases, we will notify the Indian landowners after taking emergency action on Indian land. We will provide written notification of our action to the Indian tribe exercising jurisdiction over the Indian land before and after taking emergency action on Indian land. § 169.415 How will BIA conduct compliance and enforcement when there is a life estate on the tract? (a) We may monitor the use of the land, as appropriate, and will enforce the terms of the right-of-way on behalf of the owners of the remainder interests, but will not be responsible for enforcing the right-of-way on behalf of the life tenant. (b) The life tenant may not cause or allow permanent injury to the land. Dated: November 3, 2015. Kevin K. Washburn, Assistant Secretary—Indian Affairs. [FR Doc. 2015–28548 Filed 11–18–15; 8:45 am] BILLING CODE 4337–15–P E:\FR\FM\19NOR2.SGM 19NOR2

Agencies

[Federal Register Volume 80, Number 223 (Thursday, November 19, 2015)]
[Rules and Regulations]
[Pages 72491-72549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28548]



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Vol. 80

Thursday,

No. 223

November 19, 2015

Part II





 Department of the Interior





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 Bureau of Indian Affairs





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25 CFR Part 169





 Rights-of-Way on Indian Land; Final Rule

Federal Register / Vol. 80 , No. 223 / Thursday, November 19, 2015 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 169

[156A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF20


Rights-of-Way on Indian Land

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: This final rule comprehensively updates and streamlines the 
process for obtaining Bureau of Indian Affairs (BIA) grants of rights-
of-way on Indian land, while supporting tribal self-determination and 
self-governance. This final rule further implements the policy 
decisions and approaches established in the leasing regulations, which 
BIA finalized in December 2012, by applying them to the rights-of-way 
context where applicable. The rule also applies to BIA land.

DATES: This rule is effective on December 21, 2015.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, (202) 273-4680; 
elizabeth.appel@bia.gov.

SUPPLEMENTARY INFORMATION:

I. Executive Summary of Rule

    The Department of the Interior (Department) published a proposed 
rule in the Federal Register to comprehensively update and streamline 
the process for obtaining BIA grants of rights-of-way on Indian land 
(individually owned Indian land and/or tribal land) and BIA land 
(tracts owned and administered by BIA) on June 17, 2014 (79 FR 34455) 
with a comment deadline of August 18, 2014. The Department then 
extended the comment deadline to October 2, 2014, then to November 3, 
2014, and finally to November 28, 2014. See 79 FR 47402, 60794, and 
65360.
    The current regulations were promulgated in 1968, and last updated 
in 1980. In December 2012, the Department issued final regulations 
comprehensively reforming residential, business, and wind and solar 
leasing on Indian land and streamlining the leasing process. Given the 
supportive response to the leasing regulatory revisions, we are 
updating 25 CFR part 169 (Rights-of-Way) to mirror those revisions to 
the extent applicable in the rights-of-way context and otherwise 
modernize requirements for obtaining a right-of-way over or across 
Indian land and BIA land. The final rule reflects additional changes 
made in response to comments received during the public comment period. 
Highlights of this final rule include:
     Simplifying requirements by relying on general statutory 
authority to grant rights-of-way and eliminating outdated requirements 
that apply to specific types of rights-of-way;
     Clarifying processes for BIA review of right-of-way 
documents;
     Streamlining the process for obtaining a right-of-way on 
Indian land by:
    [cir] Eliminating the need to obtain BIA consent for surveying in 
preparation for applying for a right-of-way;
    [cir] Establishing timelines for BIA review of rights-of-way 
requests;
     Adding certainty to applicants by allowing BIA disapproval 
only where there is a stated compelling reason;
     Providing Indian landowners with notice of actions 
affecting their land;
     Deferring to individual Indian landowner decisions subject 
to an analysis of whether the decision is in their best interest;
     Promoting tribal self-determination and self-governance by 
providing greater deference to Tribes on decisions affecting tribal 
land;
     Clarifying tribal jurisdiction over lands subject to a 
right-of-way; and
     Incorporating tribal land policies in processing a request 
for a right-of-way.
    The general approach to the final rule is to provide a uniform 
system for granting rights-of-way over Indian land by relying primarily 
on a single statutory authority, 25 U.S.C. 323-328, and to allow Indian 
landowners as much flexibility and control as possible over rights-of-
way on their land. The rule requires that owners of a majority of the 
interests in a tract must consent to the right-of-way, in accordance 
with the statutory requirement in 25 U.S.C. 324, and specifies that 
tribes and individual Indian landowners may negotiate the terms of 
their consent, which ultimately become the terms of the grant. The rule 
clarifies that landowners may negotiate the terms to ensure the right-
of-way is best suited to their needs. Landowners currently have this 
option, but are often presented with a ``take-it-or-leave-it'' offer by 
the potential grantee, and fail to negotiate. To provide efficiencies 
in standardization, the Department will develop a template grant form 
with placeholders for conditions and restrictions agreed to by 
landowners. The rule also affords landowners as much notice as possible 
regarding rights-of-way on their land, giving tribes and individual 
Indian landowners actual notice (as opposed to constructive notice) of 
every right-of-way affecting their land, including any land in which 
the tribe owns a fractional interest.
    The rule addresses tribally owned land differently than 
individually owned land because, although the U.S. has a trust 
responsibility to all beneficial owners, it has a government-to-
government relationship with tribes and seeks to promote tribal self-
governance. The final rule also provides tribes with as much deference 
as possible, within the bounds of the Department's trust 
responsibilities, to determine which rights-of-way to grant, for how 
much compensation, and with identified enforcement provisions. The rule 
also provides that the BIA will defer to individual Indian landowners 
in their determinations, to the extent it is possible to coordinate 
with multiple individual Indian landowners.
    Consistent with 25 U.S.C. 325, the general trust relationship 
between the United States and the Indian tribes and individual Indians, 
and deference to tribal sovereignty, the final rule requires that the 
compensation granted to Indian landowners is just. The final rule does 
not establish any ceiling on compensation; to do so would unduly 
restrict landowners' ability to get the maximum compensation for their 
land interest. The Department's role is to ensure that the compensation 
is ``just'' for the Indian landowners.
    Together, these revisions modernize the rights-of-way approval 
process while better supporting Tribal self-determination. This rule 
also updates the regulations to be in a question-and-answer format, in 
compliance with ``plain language'' requirements.

II. Response to Comments

    The Department published a proposed rule with the above revisions 
on June 17, 2014. See 79 FR 34455. The Department extended the initial 
public comment deadline of August 18, 2014 to October 2, 2014, then 
November 3, 2014, and finally to November 28, 2014. See 79 FR 47402 
(August 13, 2014), 79 FR 60794 (October 8, 2014); and 79 FR 65360 
(November 4, 2014). We received 176 written comment submissions prior 
to the final deadline of November 28, 2014. Of these, 70 were from 
Indian tribes, 19 were from tribal associations and tribal members, 7 
were from State government entities, and 5 were from county or city 
government entities. These submissions also included significant input 
from the energy sector, including 15 from electric cooperatives, and 25 
from gas and oil companies and

[[Page 72493]]

associations, pipeline companies, and power and water utilities 
combined. We also received 3 written submissions from 
telecommunications companies and 2 from railroad companies. In 
addition, we reviewed comments at tribal consultation sessions held in 
Bismarck, North Dakota; Phoenix, Arizona; Atlanta, Georgia; and by 
teleconference. The following is a summary of the substantive comments 
we received and our responses. The designation ``PR'' refers to the 
section from the proposed rule; the designation ``FR'' refers to the 
designation in the final rule.

Table of Contents for Response to Comments

A. General
B. Subpart A--General Provisions
    1. Purpose of Regulations (PR 169.001)
    2. Definitions (PR 169.002) & Applicability (PR 169.003(a))
    3. Life Estates (PR 169.003(b)/FR 169.109, FR 169.112, FR 
169.121, FR 169.122, FR 169.415)
    a. Life Estates--Protection of Land
    b. Life Estates--Consent
    c. Termination of Life Estates
    d. Life Estates--Other Comments
    4. When a Right-of-Way Is Needed (PR 169.004)
    5. Types of Uses for Rights-of-Way (PR 169.005)
    6. Applicability to Existing Rights-of-Way and Applications (PR 
169.006/FR 169.7)
    7. Administration of Regulations by Tribes on BIA's Behalf (PR 
169.007/FR 169.8)
    8. Laws Applicable to Rights-of-Way Approved Under These 
Regulations (PR 169.008/FR 169.9)
    a. State Jurisdiction/State Law
    b. Tribal Law
    c. Tribal Jurisdiction
    9. Taxes Applicable to Rights-of-Way Approved Under These 
Regulations (PR 169.009/FR 169.11)
    10. Notice of Rights-of-Way (PR 169.010/FR 169.12)
    11. Appeals of Right-of-Way Decisions (PR 169.011/FR 169.13)
C. Subpart B--Obtaining Right of Way
    1. Consent
    a. Consent To Survey
    b. ``So Numerous''
    c. Non-Consenting Tribe (PR 169.107(d))
    d. Who Is Authorized To Consent (PR 169.108/FR 169.108)
    2. Compensation
    a. Compensation--Electric Cooperatives and Utilities
    b. Compensation/Fair Market Value for Rights-of-Way (PR 169.109/
FR 169.110, PR 169.111/FR 169.112)
    c. Different Compensation Approaches for Tribal Land Than for 
Individually Owned Indian Land
    d. Valuation (PR 169.111/FR 169.114)
    e. Who Conducts Valuation
    f. Method of Valuation
    g. Alternative Compensation
    h. Compensation for Renewals
    3. Payment (PR 169.112/FR 169.115)
    4. Direct Pay (PR 169.113/FR 169.116)
    5. Method of Payment (PR 169.114/FR 169.117)
    6. Non-Monetary and Varying Types of Compensation (PR 169.115/FR 
169.118)
    7. Issuance of Invoices (PR 169.116/FR 169.119)
    8. Compensation Reviews or Adjustments (PR 169.117/FR 169.111 
and FR 169.113)
    9. Other Payments Required (PR 169.118/FR 169.120)
    10. Condemnation
    11. Process for Grant of Right-of-Way
    a. Deadlines for BIA Decisions
    b. Process for Granting Right-of-Way (PR 169.119/FR 169.123)
    c. BIA Decision To Grant a Right-of-Way (PR 169.120/FR 169.124)
    d. Contents of the Grant (PR 169.121/FR 169.125)
    e. Preference for Employment of Tribal Members
    12. Process for Rights of Way Applications Within or Overlapping 
Existing Rights of Way, or ``Piggybacking'' (PR 169.123/FR 169.127, 
169.128)
    13. Location in Application and Grant Differ From Construction 
Location (PR 169.124/FR 169.129)
    14. Bonding (PR 169.103/FR 169.103)
Subpart C--Terms, Renewals, Amendments, Assignments, Mortgages
    1. Term (Duration)
    2. Holdovers
    3. Renewals (PR 169.201-169.202/FR 169.202)
    4. Multiple Renewals (PR 169.203/FR 169.203)
    5. Amendments
    6. Assignments
    7. Mortgages
Subpart D--Effectiveness
    1. Appeal Rights
    2. Compelling BIA Action (PR 169.304/FR 169.304)
    3. Appeal Bond
Subpart E--Compliance and Enforcement
    1. Abandonment
    2. Negotiated Remedies (PR 169.403/FR 169.403)
    3. BIA Enforcement (PR 169.404-169.405/FR 169.404-169.405)
    4. Late Payment Charges (PR 169.407/FR 169.407)
    5. Cancellation for Non-Use or Abandonment (PR 169.408/FR 
169.408)
    6. BIA Enforcement Against Holdovers (PR 169.410/FR 169.410)
    7. Trespass (PR 169.412/FR 169.413)
Subpart F--Service Line Agreements ((PR Subpart F (169.501-169.504)/
Final Subpart B (169.51-169.57))

A. General

    Comment: Several commenters, such as the Northern Natural Gas 
Company, stated that the rule would have the opposite effect of 
streamlining the right-of-way process, creating a slower, less 
efficient, and ``in many ways unfair'' right-of-way process because 
they provide parties with the opportunity to negotiate with each other, 
which will slow the issuance of rights-of-way, particularly on 
individual Indian tracts. One energy company commenter stated that the 
right-of-way process is burdensome and often takes years to complete 
before it can provide service to the customer, but that the proposed 
rule offers a middle ground that accommodates tribal consent and allows 
utilities to provide service to customers in a timely manner. At least 
one commenter stated that the rule bolsters tribal self-governance by 
allowing tribes to dictate the extent of rights-of-way.
    Response: Although negotiations between the parties may slow down 
the process of obtaining landowner consent by giving the parties time 
to negotiate, this clarification is necessary to promote Indian 
landowner control over their trust or restricted land, and allows 
ordinary market forces to work. To provide efficiencies in 
standardization, BIA will develop a template grant form that provides 
flexibility by incorporating conditions and restrictions agreed to by 
landowners.
    Comment: Several commented on the proposed rule's statement that 
BIA will rely on the broad authority under the 1948 Act, rather than 
the limited authorities under specific statutes. Some commenters 
pointed out that Congress did not repeal, override, supersede, or alter 
the other statutes and that the specific statutory authorities and 
requirements are still applicable to the Department. One commenter 
stated that the 1948 Act was intended as ``cleanup legislation'' to 
address Indian land not already covered by the ``hodge podge of 
statutes'' and that the 1948 Act affirmed the earlier statutes by 
filling gaps in coverage by the other statutes.
    Several tribal commenters strongly supported consolidating approval 
of all rights-of-way in a single location under 25 U.S.C. 323-328, 
noting that the process of approving different types of rights-of-way 
under different authorities and standards was antiquated and increased 
the burden on tribes to manage rights-of-way.
    Response: The final rule consolidates approval of all types of 
rights-of-way across Indian land under one set of regulations, 
implementing the general statutory authority at 25 U.S.C. 323-328, just 
as was proposed. The Department is not attempting to repeal any limited 
authorities under specific statutes; rather, it is making the policy 
decision to review and approve rights-of-way under the 1948 Act (25 
U.S.C. 323-328). The 1948 Act offers maximum flexibility in rights-of-
way, whereas the limited authorities under specific statutes impose 
various non-uniform restrictions. Legislative history indicates that 
Congress intended a transition from grants under the specific statutory

[[Page 72494]]

provisions to a uniform system based on 25 U.S.C. 323-328. See Senate 
Report No. 823 (80th Congress, 2d session) (Jan. 14, 1948), p. 4. The 
intent of Congress in enacting the broader 1948 statute, while leaving 
the others in place, was to afford tribes and the Department a choice 
and the Department does not exceed its authority by enacting 
regulations choosing one statutory scheme over the other. Blackfeet 
Indian Tribe v. Montana Power Co., 838 F.2d 1055, 1059 (9th Cir. Mont. 
1988).
    The rule also lists the Indian Land Consolidation Act (ILCA), as 
amended by the American Indian Probate Reform Act, 25 U.S.C. 2201 et 
seq., as statutory authority because the rule relies on this statute as 
supplemental authority. Given the intent of Congress in the 1948 Act to 
facilitate right-of-way transactions, and the intent behind ILCA not to 
disturb specific standards for the percentage of ownership interest 
that must approve an agreement, we continue to apply the percentage 
requirements of the 1948 Act (i.e., consent of a majority of interests) 
rather than the ``sliding scale'' consent requirements of 25 U.S.C. 
2218 (which may require consent of owners of more than a majority 
interest, for example where there are five or fewer owners of the 
tract). See Senate Report No. 823 (80th Congress, 2d session) (Jan. 14, 
1948), p. 4; 25 U.S.C. 2218(f).
    Comment: A commenter suggested including in the final rule the 
industry-specific standards and guidelines for oil and gas pipelines 
that have been in place for decades, at current section 169.25(f).
    Response: The final rule provides landowners and grantees the 
freedom to negotiate for whatever standards and guidelines are 
appropriate for incorporating into the right-of-way grant. The final 
rule does not prevent a grantee from following the industry-specific 
guidelines and standards for oil and gas pipelines.
    Comment: Several commenters pointed to the U.S. Supreme Court 
decision in Strate as establishing that a grant of right-of-way 
essentially transforms Indian land into fee land. See Strate v. A-1 
Contractors, 520 U.S. 438, 451-52 (1997). Specifically, these 
commenters stated that when a landowner grants a right-of-way, they 
reserve no right to the exclusive dominion or control over the right-
of-way, and the land underlying the right-of-way is removed from tribal 
jurisdiction. These commenters asserted that the Strate holding means 
there can be no ``seamless consistency'' between the right-of-way 
regulations and leasing regulations, because this precedent treats land 
subject to a right-of-way differently from leased land.
    Response: The circumstances in Strate are limited to the facts 
presented in that case. In Strate, neither the Federal Government nor 
the tribe expressly reserved jurisdiction over the land in the grant of 
the right-of-way. 520 U.S. at 455. This lack of reservation of a 
``gatekeeping right'' led the Supreme Court to consider the right-of-
way as aligned, for purposes of jurisdiction, with land alienated to 
non-Indians. Id. In these regulations, as grantor, the United States is 
preserving the tribes' jurisdictions in all right-of-way grants issued 
under these regulations and is requiring that such grants expressly 
reserve tribal jurisdiction. Therefore, grants of rights-of-way under 
these regulations, consistent with the Court's reasoning in Strate, 
would not be equivalent to fee land, but would retain the 
jurisdictional status of the underlying land.
    Comment: A few commenters stated that the regulation is a violation 
of the trust responsibility, claiming it subjects individual Indian 
landowners to an additional layer of bureaucracy without protections 
for Indian land rights.
    Response: The regulations retain protections for Indian land rights 
and promote landowners' control over and notification of rights-of-way 
over and across their land. Landowners are free to negotiate for terms 
acceptable to them in negotiating with right-of-way applicants, subject 
to BIA review and approval, as required by statute.
    Comment: Several commenters, including both tribal and industry 
representatives, submitted petitions and comments calling on BIA to 
cancel the rulemaking and start over. Some suggested gathering a 
workgroup of tribes and allottees to rewrite the regulations. Several 
tribal commenters requested additional consultation and others 
requested additional opportunity for public input. A few tribal 
commenters supported the regulatory efforts to add transparency and 
certainty to the right-of-way process.
    Response: The Department complied with the applicable 
Administrative Procedure Act requirements for public notice and comment 
and consulted with tribes in updating these regulations, consistent 
with the Executive Orders and Departmental policy on consultation with 
tribes. Both public and tribal input on the proposed rule was robust, 
touching upon nearly every section of the proposed rule. The Department 
considered each comment in drafting the final rule and has incorporated 
suggested changes, balancing the Department's trust responsibility to 
landowners, support for tribal self-determination and self-governance, 
and promotion of productive use of Indian land.
    Comment: A tribe requested that the rule better reflect that the 
tribe has ongoing sovereign interests in right-of-way lands, through 
consenting to renewals, consenting to changes to the right-of-way 
document after it is granted, and investigating activities and 
conditions on the land and its improvements to determine compliance 
with tribal laws or with the terms and conditions of the right-of-way 
document.
    Response: The final rule includes a new section FR 169.010 to 
clarify that the grant of a right-of-way has no effect on tribal 
jurisdiction. In response to this comment, the final rule also includes 
a provision (FR 169.402(b)) recognizing the right of the tribe to 
investigate compliance with the grant, and imposes other tribal 
approval and notification requirements throughout the right-of-way 
process.

B. Subpart A--General Provisions

1. Purpose of Regulations (PR 169.001)

    Comment: We received suggestions for several line edits to PR 
169.001. One commenter requested we clarify that the rules govern how 
BIA will consider a request for a right-of-way, and another suggested 
we add a statement regarding the applicability of tribal law. Another 
commenter requested that PR 169.001(d) be clarified to state that the 
special acts of Congress authorizing rights-of-way without BIA's 
approval are only those specifically authorizing rights-of-way across 
tribal land, to preclude the assertion of a right under general Federal 
statutes to obtain or condemn a right-of-way without BIA approval.
    Response: We incorporated these suggestions.
    Comment: One commenter suggested adding a separate subsection on 
the ``interplay and application of tribal law and policy.''
    Response: A separate subsection on tribal law is unnecessary 
because other sections of the rule address the applicability of tribal 
law; however, the final rule adds a sentence to Sec.  169.001(a) to 
clarify that the regulation is intended to support tribal self-
determination and self-governance by acknowledging and incorporating 
tribal law and policies in processing requests for rights-of-way across 
tribal lands.
    Comment: One tribal commenter stated that the proposed rule 
appeared to grant the Secretary authority to grant rights-of-way under 
the Federal Power Act without the tribe's consent. This

[[Page 72495]]

commenter stated that the rule should clarify whether it applies to 
Federal Power Act power lines and apply only to those Federal power 
projects that produce electricity from hydroelectric generators. 
Another commenter stated that the regulations should cover rights-of-
way for Federal Power Act transmission lines.
    Response: The proposed and final rules both include the same 
language as the current rule on the Federal Power Act. This is governed 
by statute, and the rule does not affect it. The regulations do not 
cover rights-of-way for Federal Power Act transmission lines, but do 
cover other transmission lines.

 2. Definitions (PR 169.002) & Applicability (PR 169.003(a))

    Comment--Several definitions' reference to ``surface estate'': 
Several commenters suggested that definitions such as ``Government 
land, ``Indian land,'' ``individually owned Indian land,'' and ``tribal 
land'' should include the subsurface estate, as well as the surface 
estate.
    Response: The definitions refer to the surface estate only because 
these regulations address only the surface estate and BIA distinguishes 
only between the surface estate and the mineral estate. The surface 
estate includes everything other than mineral estate, such that any 
buried lines or other infrastructure affect the surface estate and 
require a right-of-way. As such, the surface estate includes what some 
of the commenters are calling the ``subsurface estate,'' which includes 
the soil and any other non-mineral material below the surface. To 
address these comments, the final rule includes an introductory 
sentence in PR 169.002, clarifying that these definitions apply only 
for the purposes of rights-of-way regulations.
    Comment--``Abandonment'': A few commenters supported the definition 
of the term ``abandonment'' as helpful to distinguish relinquishment of 
a right-of-way through non-use versus affirmative relinquishment. One 
commenter asked whether the grantee must file a document to 
affirmatively relinquish the right-of-way. Another commenter suggested 
criteria for ``abandonment in fact'' to establish when the grantee 
relinquished the right-of-way without a formal declaration of 
relinquishment. A few commenters suggested that the definition be 
expanded to include not just affirmative relinquishment by the grantee, 
but to also include an act that shows the grantee gave up its rights 
and does not intend to return to exercise the rights.
    Response: The proposed rule and final rule, at Sec.  169.408, 
provide that enforcement may occur for ``non-use,'' which is what the 
commenter calls ``abandonment in fact,'' and establish the criteria for 
the non-use. The final rule expands the definition of ``abandonment'' 
as requested to include acts by the grantee to allow BIA to imply 
abandonment based on an analysis of the circumstances. See FR 169.2. To 
affirmatively relinquish a right-of-way, the grantee need not 
necessarily file a document. Because the definition cannot enumerate 
all of the ways in which a grantee could communicate relinquishment, 
BIA will determine on a case-by-case basis whether affirmative 
relinquishment has occurred.
    Comment--``BIA'': One commenter suggested defining ``BIA'' to 
include the United States generally, to address an issue with an 
interagency agreement being recorded. Some commenters expressed 
confusion about defining ``BIA'' to include tribes that contract or 
compact to carry out BIA services, saying that it would appear to be an 
unlawful delegation of authority.
    Response: The final rule retains the proposed definition of 
``BIA.'' The definition of ``trust or restricted status'' already 
establishes that the United States rather than BIA specifically holds 
title in trust or imposes restricted status. Tribes are statutorily 
authorized to carry out BIA realty services that are not inherently 
Federal functions, as long as certain procedures are followed.
    Comment--``Cancellation'': A few tribal commenters requested 
definitions for ``cancellation'' and ``termination.''
    Response: The final rule adds these definitions.
    Comment--``Compensation'' and ``Market Value'': A few commenters 
suggested revising definitions for ``compensation'' and ``market 
value'' to impose a requirement that the Secretary determine the amount 
is ``just'' under 25 U.S.C. 325, regardless of whether the amount meets 
fair market value.
    Response: The final rule does not incorporate these suggested 
changes because detailed provisions for determining compensation are 
addressed elsewhere in the regulations.
    Comment--``Consent'': Several commenters requested a definition for 
``consent.''
    Response: The final rule adds a definition for this term that is 
consistent with the definition in the leasing regulations (25 CFR part 
162).
    Comment--``Constructive Notice'' and ``Notice'': A few commenters 
requested a definition of ``notice, notify and notification'' to mean 
informing the parties by certified or registered mail or commercial 
mail service that tracks delivery or email. Other commenters suggested 
adding more specifications for constructive notice on how long and 
where the notice will be posted.
    Response: With regard to notice generally, and the allowable forms 
of notice, PR 169.010 and FR 169.12 address these issues. See the 
discussion of comments on that section, below, for information about 
the forms of notice. Constructive notice is required only for 
notification to landowners of certain enforcement actions BIA takes 
against the grantee, so no definition has been added.
    Comment--``Easement'': One commenter stated that the definition of 
``easement'' should reflect that title remains vested in the owner.
    Response: The final rule clarifies that an easement is simply a 
right to use, but that title remains vested with the owner.
    Comment--``Eminent domain'': One commenter requested a definition 
for ``eminent domain.''
    Response: The final rule does not include the term ``eminent 
domain'' or address eminent domain, so this definition was not added. 
Statutory authority exists in 25 U.S.C. 357 for condemnation under 
certain circumstances, but these regulations do not address or 
implement that authority.
    Comment--``Fractional interest'': One commenter suggested a 
revision to exclude application to tribal land.
    Response: No change to the rule is necessary. Tribal land includes 
land in which the tribe and others own fractional interests.
    Comment--``Government land'': Some commenters suggested narrowing 
the definition to refer to land administered by the BIA, rather than 
all Federal Government lands because other Federal agencies are 
responsible for granting rights-of-of way on lands under their 
statutory and regulatory jurisdictions.
    Response: The final rule changes the term from ``Government land'' 
to ``BIA land'' and specifies that the BIA owns and administers the 
land.
    Comment--``Grantee'': One commenter suggested including assignees 
in the definition of ``grantee.''
    Response: The final rule clarifies that once an assignment becomes 
effective, the assignee becomes the grantee.
    Comment--``Immediate family'': A commenter stated that the 
definition of ``immediate family'' should track the definition in 25 
CFR part 152.
    Response: The final rule's definition of ``immediate family'' 
tracks the definition in the leasing regulations, and consistent with 
our support for tribal

[[Page 72496]]

self-determination and self-governance, defers to the definition of 
``immediate family'' under applicable tribal law.
    Comment--``Indian land'': A few commenters stated that the 
definition should better track the definition of ``tribal land'' to 
address that Indian land may be owned by more than one tribe, more than 
one individual Indian, or a combination of both. One commenter 
requested clarification that ``Indian land'' does not include anything 
beyond individually owned Indian land and tribal land. Several 
commenters stated that ``trust and restricted land'' should be used 
instead, to eliminate the need to cross-reference multiple other 
defined terms (i.e., ``tribal land,'' ``individually owned Indian 
land,'' ``trust or restricted status''). One commenter stated that the 
definition appeared to also apply to land owned in fee.
    Response: The final rule incorporates the clarification that the 
land may be owned by multiple landowners and that ``Indian land'' 
includes only individually owned Indian land and tribal land. The final 
rule does not make any revision in response to the comment that the 
definition appears to apply to fee land, because the definition already 
states that it includes only land held in trust or restricted status.
    Comment--``Indian landowner'': A commenter stated that the 
definition should clarify that ``an interest in Indian land'' means a 
trust or restricted interest. One commenter suggested excluding from 
the definition anyone who has only a right from the tribe to use land 
and the tribe has reserved the right to consent to easements or rights-
of-way.
    Response: The final rule does not revise the definition to refer to 
trust or restricted interests because it refers to ``Indian land'' 
which is defined to mean trust or restricted interests. The final rule 
does not exclude tribal land assignments from the definition of 
``Indian landowner,'' but in a case in which a person has only a tribal 
land assignment, the tribe would still be considered the ``Indian 
landowner'' under this definition.
    Comment--``Indian tribe'': One commenter suggested that the 
definition of ``Indian tribe'' should include only tribes organized 
under the Indian Reorganization Act (IRA), in accordance with a strict 
reading of the statutory authority for rights-of-way on Indian land. 
This change would require the consent only of IRA tribes for any 
rights-of-way and not for non-IRA tribes.
    Response: The final rule does not narrow the definition of ``Indian 
tribe'' as suggested because BIA has consistently required consent from 
all tribes, in furtherance of tribal self-determination.
    Comment--``Indian'': Several commented on this definition. Some 
questioned including individuals who are ``eligible to become a member 
of any Indian tribe.'' At least one commented that the statutory 
definition discriminates against co-owners of allotments outside of 
California.
    Response: As a result of the American Indian Probate Reform Act 
amendments to the Indian Land Consolidation Act, the definition of 
``Indian'' includes those who are ``eligible to become a member of any 
Indian tribe.''
    Comment--``Individually owned Indian land'': A commenter suggested 
this definition should exclude tribal land assignments. Another 
commenter suggested revising the definition to clarify that the tract 
may be owned by multiple individuals. One commenter asked whether a 
tract in which both a tribe and an individual own interests would be 
considered ``individually owned Indian land'' or ``tribal land.''
    Response: The definition of individually owned Indian land does not 
include tribal land assignments; no change is necessary. The final rule 
clarifies that individually owned Indian land may be owned by multiple 
individuals, as suggested. A tract in which both a tribe and an 
individual own interests would be considered ``tribal land'' for the 
purposes of requirements applicable to tribal land and would be 
considered ``individually owned Indian land'' for the purposes of the 
interests owned by individuals.
    Comment--``Legal Description'': One commenter stated that the 
definition should not refer to a portion of the document.
    Response: BIA has deleted this definition in response to the 
comment because ``legal description'' is a generally understood term.
    Comment--``Life estate'': One commenter suggested adding a 
definition for ``life estate.''
    Response: The final rule defines ``life estate'' consistent with 
the leasing regulations.
    Comment--``Map of definite location'': One commenter suggested 
adding that the boundaries of each right-of-way should be specified as 
precisely as possible. Others suggested additional requirements for the 
distance between the surveyed land and right-of-way and allowances for 
GPS and satellite technologies.
    Response: The proposed and final regulations at Sec.  169.102(b)(1) 
refer to the statutory provisions governing maps of definite location, 
which are implemented by the Department's Manual of Surveying 
Instructions and other Departmental requirements. These require an 
accurate description of boundaries and impose distance requirements for 
references to public surveys, and allow for GPS and satellite 
technologies.
    Comment--``Market value'': A few commenters suggested using the 
term ``fair market value'' rather than ``market value'' to maintain 
consistency in terminology with the current regulations and because the 
term is more widely used in industry parlance. One commenter suggested 
adding that it should state that it is the most probable price the 
property would bring in a competitive and open market ``under all 
conditions requisite to a fair sale.'' Another suggested clarifying 
that the market value should be based on the use of the limited portion 
for the right-of-way, rather than sale of the land.
    Response: The final rule uses the term ``fair market value'' in 
lieu of the proposed ``market value'' in response to these comments. 
The final rule does not add ``under all conditions requisite to a fair 
sale'' because this concept is already captured in ``competitive and 
open market.'' The final rule does not add that the market value is 
based on the limited portion for the right-of-way because this is 
understood.
    Comment--``Nonprofit rural utility'': One commenter suggested 
adding a definition for this term to mean ``a member-owned cooperative 
nonprofit corporation organized under State law for the primary purpose 
of supplying electric power and energy and promoting and extending the 
use of electricity in rural areas and Indian lands.''
    Response: The final rule adds a definition for ``utility 
cooperatives'' to include member-owned utility cooperatives. Later 
provisions of the rule provide for waivers of compensation requirements 
and bonding requirements for utility cooperatives and tribal utilities 
under certain conditions.
    Comment--``Parties'': A few commenters suggested a definition of 
``parties.''
    Response: The final rule does not include a definition for 
``parties'' because it is clear from context where this term is used 
who it includes.
    Comment--``Right-of-Way'': A few commenters suggested edits to this 
definition to clarify that easements are a type of right-of-way. Other 
commenters suggested adding ``in, over, under, through, on, or to'' to 
capture all possible types of rights-of-way. Some commenters stated 
that a right-of-way

[[Page 72497]]

should reflect that they are transfers of real property interests to 
grantees; others stated that the right-of-way should reflect they are 
not transfers, and that title remains vested in the landowner. Some 
commenters suggested clarifying in the definition that rights-of-way do 
not include service lines.
    Response: The final rule clarifies that rights-of-way include 
easements and uses the statutory language ``over and across'' rather 
than ``cross.'' The final rule also establishes that right-of-way 
grants are not transfers of real property interests (see discussion 
below), but rather that the landowner retains title to the property. 
The final rule clarifies that rights-of-way do not include service 
lines.
    Comment--``Service Lines'': See the discussion of service lines, 
below.
    Comment--``Secretary'': A commenter suggested clarifying who is an 
``authorized representative'' of the Secretary.
    Response: Authorized representatives are those acting within their 
scope of duties through delegated authority by the Secretary.
    Comment--``Section 17 corporation'': A commenter noted that this 
term is defined but not used in the regulation.
    Response: The final rule deletes this definition.
    Comment--``Trespass'': One commenter requested narrowing the 
definition of ``trespass'' to exclude unintentional instances of 
trespass and encompass only those instances of willful, purposeful, 
reckless, or negligent trespass. Another commenter suggested expanding 
the definition to include listed examples of trespass. The commenter 
also stated that trespass to airspace and subsoil should be included.
    Response: The final rule does not add any requirement for intent to 
trespass because the unauthorized occupancy is a trespass under Federal 
law regardless of intent (see discussion of trespass, below). The final 
rule does not list examples of trespass; examples listed by the 
commenter would meet the definition of ``trespass'' including, but not 
limited to, holdover occupancy without consent, affixing unauthorized 
improvements, adding uses or areas, entry without authorization. The 
definition does not specify trespasses to airspace and subsoil because 
these regulations address only the surface estate.
    Comment--``Tribal authorization'': One commenter requested further 
specification of when a tribal authorization is ``duly adopted.'' 
Another commenter suggested adding a tribal government division to the 
definition.
    Response: The regulations do not add further specification of what 
constitutes a duly adopted tribal authorization because the procedures 
vary with each individual tribe. The definition of ``tribal 
authorization'' includes a document duly adopted by a tribal government 
division which reflect that the document is an ``appropriate tribal 
document authorizing the specified action.''
    Comment--``Tribal Land'': A tribal commenter asked whether a tract 
is considered tribal land, even if fractional interests are owned by 
both the tribe and individual Indians. Another commenter suggested 
defining ``tribal land'' to include only land that is not individually 
owned. A commenter suggested limiting tribal land to those tracts in 
which the tribe holds a majority interest.
    Response: Under the proposed definition and final definition, a 
tract is considered ``tribal land'' if any interest, fractional or 
whole, is owned by the tribe. A tract in which both a tribe and 
individual Indians own fractional interest is considered tribal land 
for the purposes of regulations applicable to tribal land. If the tribe 
owns any interest in a tract, it is considered ``tribal land'' and the 
tribe's consent for rights-of-way on the tract is required under 25 
U.S.C. 323 and 324.
    Comment--``Trust or restricted status'': One commenter suggested 
revising the definition to reflect that individual tracts may be owned 
by a combination of both tribal and individual owners.
    Response: The final rule clarifies that land may be owned by a 
combination of both tribal and individual owners by changing ``or'' to 
``and/or.''
    Comment: New definition of ``utility'': One commenter suggested 
adding definitions distinguishing between ``commercial'' and ``public'' 
utilities, such that later provisions can provide more lenient 
requirements to public utilities.
    Response: The final rule defines ``utility cooperatives'' and 
``tribal utilities'' because the regulations provide more lenient 
requirements for these categories of utilities. ``Utility 
cooperatives'' are defined to be those cooperatives that are member-
owned, while ``tribal utility'' is defined to be those utilities that 
are tribally owned and controlled (i.e., in which tribes own at least 
51 percent, receive a majority of the earnings, and control the 
management and daily operations). The more lenient requirements 
(nominal compensation, no bonding requirements) are appropriate for 
utility cooperatives because cooperatives are established for the 
purpose of providing service to their members and benefiting their 
members rather than making a profit. The more lenient requirements are 
appropriate for tribal utilities, whether for profit or not for profit, 
because such utilities have a governmental interest in providing 
service to those within their jurisdictions. The final rule holds other 
not-for-profit and for-profit utilities to the standard requirements 
for compensation and bonding because an independent analysis of whether 
the right-of-way is in the best interest of the landowners is 
appropriate in those circumstances.
    Comment--Other definitions: A few commenters suggested defining 
terms such as ``allotted land.''
    Response: The term ``allotted land'' is not defined because it is 
not used in the regulation.
    Comment: A few commenters had questions about or expressed 
confusion about PR 169.003(a), specifying that BIA will not condition 
its grant of a right-of-way on the applicant having obtained a right-
of-way from the owners of any fee interests, and that BIA will not take 
any action on a right-of-way across fee, State or Federal land not 
under BIA's jurisdiction.
    Response: BIA grants rights-of-way only with respect to trust or 
restricted interests and examines only the trust or restricted 
interests when determining whether the owners of the majority of the 
interests consent. It is the applicant's responsibility to obtain the 
permission of the owners of the fee interests; BIA is not involved in 
that process. BIA will not condition its grant of a right-of-way on the 
applicant having obtained a right-of-way from the owners of any fee 
interests. The rule requires notice to and consent from owners of trust 
or restricted interests, as opposed to fee interests. The final 
definition of ``BIA land'' clarifies that land not under BIA's 
jurisdiction is not included.

3. Life Estates (PR 169.003(b)/FR 169.109, FR 169.112, FR 169.121, FR 
169.122, FR 169.415)

    Comment: A commenter stated that the provisions on life estates are 
``extremely confusing'' and should be rewritten. Another commenter 
stated that the provisions on life estates should be in their own 
section, rather than as a part of Sec.  169.3.
    Response: The final rule addresses these comments by redrafting 
life estate provisions and placing them in new,

[[Page 72498]]

separate sections addressing only life estates.
    Comment: One commenter asserted that the entire section should be 
deleted because it violates the rules of co-tenancy. This commenter 
also stated that title vests in the remaindermen under a will as of the 
date of the death, title passes from the decedent to the remaindermen 
at that time, and the remaindermen take ownership subject to the life 
estate. This commenter stated that the estates are concurrent, and that 
the perspective that there is first a life estate and then a remainder 
is legally incorrect and would create a hole in the chain of title, 
rendering it unmarketable. The commenter further stated that the 
proposed provision stating that BIA will not join in a right-of-way 
granted by life tenants is an announcement that the Department intends 
to violate 25 U.S.C. 348, which requires Secretarial approval of all 
contracts affecting allotted land.
    Response: This comment is based on a provision in the proposed rule 
that would have allowed a life tenant to grant a right-of-way without 
consent of the remaindermen or approval of the BIA. That provision has 
been deleted in the final rule.
    Comment: Several commenters, including tribal commenters, stated 
that the life estate provisions should distinguish between Indian and 
non-Indian life tenants to provide protection to Indian life tenants. 
The commenters stated that the rule does not explain how BIA will 
balance the interests of an Indian life tenant and Indian remaindermen. 
One commenter stated that BIA owes a trust responsibility to everyone 
with an interest in trust property, including a life tenant. These 
commenters assert that the rule establishes that BIA will actively 
breach its trust responsibility to Indian life tenants. For example, 
the provision saying that BIA will not enforce or consent to a right-
of-way where the life tenant holds all the trust or restricted 
interests in the tract, assumes the life tenant is non-Indian when, in 
fact, most are Indians to which BIA owes a trust responsibility.
    Response: The final rule does not distinguish between Indian and 
non-Indian life tenants because BIA's trust responsibility is not based 
on whether someone is Indian, but rather stems from the interest in 
trust or restricted (Indian) land. BIA is responsible for enforcing the 
terms of the right-of-way only on behalf of the remaindermen because 
BIA's trust responsibility is to the remaindermen because they are the 
beneficial owners of the Indian land, rather than the life tenants.
a. Life Estates--Protection of Land
    Comment: A tribal commenter stated that the rule should clarify 
whether BIA owes a trust responsibility to the co-owners of the holder 
of the life estate, because it states that it does not owe rights to 
other parties but leaves this category of parties vague.
    Response: Where the life estate covers only a fractional interest 
in the property, the other co-owners are owners of the trust or 
restricted property to which BIA owes any trust responsibility.
    Comment: A tribal commenter stated that BIA approval should be 
required regardless of whether the life estate is over the entire 
parcel of Indian land or not, because BIA's approval is required to 
protect the remainder interests and ensure no permanent injury to the 
Indian land, in either case.
    Response: The final rule requires BIA approval regardless of 
whether the life estate covers the entire parcel of Indian land or not.
    Comment: A tribal commenter stated that provisions saying that the 
BIA ``may monitor the use of the land'' should instead provide that the 
BIA ``shall monitor the use of the land.''
    Response: The final rule continues to provide that BIA ``may'' 
monitor use of the land to account for any situations in which BIA 
determines monitoring is not necessary.
    Comment: A tribal commenter stated that the rule does not provide 
for a process for the landowner to appeal to BIA for intervention as 
trustee to prevent ``permanent injury'' to the land that may occur 
through the life tenant granting the right-of-way. Another commenter 
stated that the term ``permanent injury'' should be explained, to avoid 
cases where a pipeline abandoned in place is considered a ``permanent 
injury.''
    Response: Owners may contact BIA to express concerns regarding the 
potential for permanent injury either formally or informally. In order 
to maintain flexibility, the final rule does not establish a specific 
process for this communication. The determination of whether a 
``permanent injury'' has occurred is made on a case-by-case basis.
b. Life Estates--Consent
    Comment: A commenter requested clarification that the life tenant 
``consent'' to, rather than ``grant,'' the right-of-way.
    Response: The final rule clarifies that the life tenant 
``consents'' to the right-of-way.
    Comment: A few commenters requested clarification that consent is 
required from the owners of a majority interest, rather than from a 
majority of the owners.
    Response: The final rule clarifies that consent is required from 
the owners of a majority interest.
    Comment: One commenter stated that the provisions are consistent 
with the Interior Board of Indian Appeals (IBIA) decision in Adakai v. 
Acting Navajo Regional Director, BIA, 56 IBIA 104 (2013), requiring a 
consent of the majority of the remaindermen, but recommended the intent 
be clarified by adding after the first sentence of paragraph (b): 
``Except as provided in clauses 1(v) and (3), we will not grant or 
approve a right-of-way for land subject to a life estate. A life 
tenant, however, may grant a right-of-way as provided in this paragraph 
(b).''
    Response: The final rule requires the consent of both the life 
tenants and remaindermen, in order to ensure protection of the Indian 
land for the remaindermen.
    Comment: A few commenters suggested, as a simpler approach, 
allowing the life tenant to consent for the full term of the right-of-
way, regardless of the duration of the life estate or number of future, 
unknown remaindermen, and requiring the grantee to pay full 
compensation for the right-of-way to the life tenant. These commenters 
asserted that no consent of the remaindermen is required and that the 
life tenants should have the ability to consent and bind the 
remaindermen, although one commenter stated that this approach presents 
``enormous administrative hurdles'' when a tract of land held by a life 
tenant is part of a right-of-way project encompassing other tracts 
where consent, monitoring, and enforcement are required. In contrast, a 
tribal commenter stated that the Indian landowner should be required to 
consent, regardless of whether there is a life estate on the land. One 
commenter stated that the IBIA's previous determination that rights-of-
way must be consented to by both life tenants and remaindermen was 
based on the silence in the current regulations, and asserted that the 
new regulations should allow life tenants to consent to issuance of a 
right-of-way that may exceed the duration of the life estate.
    Response: BIA may not, by regulation, allow a life tenant to grant 
an interest that is greater than what the life tenant holds (i.e., an 
interest for longer than the duration of the life tenant's life); 
therefore, the life tenant may not consent to the full term of the 
right-of-way, and may consent only to the term of his or her life. The 
final rule simplifies the approach by requiring the

[[Page 72499]]

consent of the remaindermen as well, for the full term of the right-of-
way.
    Comment: One commenter stated that the rule allows life tenants to 
encumber land with a right-of-way that may be permanent and impossible 
to undo.
    Response: The final rule requires the consent of remaindermen 
identifiable at the time of the application; with this consent, the 
right-of-way grant continues even when the life estate ends (assuming 
the overall term of the life estate has not expired).
    Comment: A tribal commenter requested clarification in paragraph 
(b)(2) as to whether the applicant must obtain the consent of a 
majority of the co-owners including or excluding the life tenant's 
consent in the calculation. The commenter suggested that the life 
tenant's consent should be included in the calculation.
    Response: The life tenant's consent is required in addition to the 
consent of the owners of a majority of the remainder interests.
    Comment: A commenter stated that if the life tenant's consent was 
not needed to meet the majority consent, then the right-of-way should 
not terminate upon the end of the life estate.
    Response: Because the final rule requires consent of both the life 
tenant and remaindermen, this comment is no longer applicable.
c. Termination of Life Estates
    Comment: Several commenters noted the administrative difficulties, 
uncertainties, and increased costs caused by a right-of-way ending when 
the life estate ends. Several commenters suggested providing that upon 
the end of the life estate, the right-of-way continues and the 
remaindermen receive compensation established for allottees in the 
original grant, but prorated for the remainder of the right-of-way 
term.
    Response: The final rule requires the consent of remaindermen 
identifiable at the time of the application; with this consent, the 
right-of-way grant continues even when the life estate ends (assuming 
the overall term of the life estate has not expired). The final rule 
addresses the allocation of compensation between the life tenant and 
remaindermen in Sec.  169.121. Generally this section provides that if 
a will established the life estate, the terms of the will establishing 
the allocation will govern. If there is no will provision that controls 
the allocation, the life tenant and remaindermen may enter into an 
agreement regarding the allocation. Otherwise, the terms of 25 CFR part 
179 apply.
    Comment: A commenter noted that there may be instances in which the 
life tenant has rights to encumber the property beyond his or her life, 
such as when a landowner conveys the property to a third party but 
retains a life estate and the ability to encumber the property beyond 
his or her life. In that case, the granting instrument's terms would 
control and the life tenant may consent to a term beyond his or her 
life.
    Response: The final rule covers the overwhelming majority of life 
estates. If such a situation arises, the BIA will address it on a case-
by-case basis, using, if necessary the flexibility in 25 CFR 1.2 to 
waive the regulations in this Chapter.
d. Life Estates--Other Comments
    Comment: A commenter expressed confusion that the rule requires 
direct payments to life tenants, but otherwise limits direct payments 
to landowners, and requested clarification on whether this is intended 
to apply where the life tenant is non-Indian. Other commenters stated 
that life tenants should have the option of having the funds deposited 
in their IIM accounts, if they have one, because otherwise the funds 
could be subject to levies or garnishment.
    Response: The final rule requires direct payment to life tenants 
regardless of whether they are Indian.
    Comment: A few commenters suggested stating ``will or other 
conveyance document'' or ``legal instrument'' creating the life estate 
because sometimes a deed creates a life estate.
    Response: No change is made to the final rule because a deed is 
considered a conveyance document.

4. When a Right-of-Way Is Needed (PR 169.004)

    Comment: A few tribal commenters requested clarification that a 
tribe owning all the interests in a tract need not obtain a right-of-
way for that tract.
    Response: The proposed and final Sec.  169.4(b)(1) state that an 
Indian landowner that owns 100 percent of the interests in a tract need 
not obtain a right-of-way grant. No clarification to the rule is 
necessary, as the definition of ``Indian landowner'' encompasses 
tribes.
    Comment: A tribal commenter requested clarification that an Indian 
tribe or tribally owned entity that does not own a majority of 
interests in the tract must obtain a right-of-way with consent of the 
owners of a majority interest for the tract.
    Response: The final rule incorporates this clarification. If the 
tribe already owns the majority of the interests, it need not obtain 
the consent of the other fractional owners, but it must notify them of 
the right-of-way.
    Comment: A few tribal commenters stated that if a tribe owns a 
separate legal entity, then the entity should not have to obtain a 
right-of-way across tribal land under the regulations. These commenters 
suggested adding an exemption for such legal entities or recognizing 
the authority of the tribe's governing body to adopt a resolution or 
other appropriate enactment to allow the tribe and tribally owned and 
controlled entities to use tribal land without a BIA-approved right-of-
way.
    Response: The final rule allows an entity that is wholly owned and 
operated by the tribe to use the tribe's tribal land without BIA 
approval where the tribe submits a resolution authorizing the right-of-
way and describing the land across which the right-of-way will cross. 
This submission is necessary for the Bureau to keep track of authorized 
users of the Indian land. The Bureau will maintain a copy of the 
resolution and description in our records.
    Comment: A tribal commenter requested more specificity as to what 
``an independent legal entity owned and operated by a tribe'' is, 
noting that it has several enterprises and entities organized through 
different legal instruments and asking whether these entities must 
comply with part 169.
    Response: Whether an enterprise or entity qualifies as ``an 
independent legal entity owned and operated by a tribe'' will be 
evaluated on a case-by-case basis.
    Comment: One commenter requested adding tribally approved land use 
agreements, such as tribal land assignments, to the list of those 
exempted from the regulations. Another commenter requested 
clarification on what the term ``land use agreements'' includes.
    Response: The final rule clarifies at FR 169.4(b) that land use 
agreements that are exempted from these regulations include tribal land 
assignments. Such land use agreements may also include permits granted 
by the Indian landowner for a revocable, non-possessory right of access 
for a very short term, for limited use of the land.
    Comment: A tribal commenter stated that, to encourage development, 
the rule should allow permitting for utility service to homesites 
without BIA approval.
    Response: Generally, a right-of-way or filing of a service line 
agreement would be required to provide utility service to homesites. 
Nevertheless, Indian landowners may grant permits to allow a revocable, 
non-possessory right of

[[Page 72500]]

access for a very short term, for limited use, where there will be no 
ground disturbance or risk of environmental damage. Examples include 
allowing a right of access for a cultural ceremony. BIA approval is not 
necessary for such permits and BIA will not administer or enforce 
permits on Indian land; the rule does not address permits because 
permits are appropriate only in very limited circumstances for a very 
limited term. Any use that requires more certainty in term (i.e., not 
unilaterally revocable by the landowner) or requires a longer term, as 
utility infrastructure would, requires a right-of-way or service line 
agreement or other authorization under Sec.  169.4. BIA may grant 
permits for use of BIA land, and part 169 will apply to those permits 
as appropriate. See Section C for more on terms.
    Comment: Some tribal commenters expressed support for the proposed 
rule's provision that the right-of-way regulations do not apply to 
other authorizations to cross Indian land, such as a federally approved 
lease. The commenter stated that this provision protects a tribe's 
choice to use the leasing statutes for energy, telecommunication and 
transportation corridors.
    Response: The final rule retains these provisions.
    Comment: One commenter stated that the regulation should exempt 
anyone travelling on an established State or county road across Indian 
land from obtaining a right-of-way.
    Response: A person travelling across Indian land on a road is not 
obtaining a legal interest in the property, and therefore does not need 
a right-of-way grant. To the extent the commenter means to ask whether 
a State or county needs a right-of-way to place a road across Indian 
land, the road would require the transfer of a legal interest, thus 
requiring a right-of-way grant.
    Comment: Several tribal commenters noted that the provision 
regarding compliance with statute, judicial order, or common law, where 
access is allowed by such statute, judicial order, or common law, could 
be misinterpreted to allow for prescriptive easements. Another tribal 
commenter requested clarification that prescriptive easements or 
adverse possession through common law, or otherwise, are not permitted 
on trust land.
    Response: The final rule replaces ``statute, judicial order, or 
common law'' with ``law'' to address the commenter's concern. No 
interest in trust land may be acquired by adverse possession. See 
Cohen's Handbook on Federal Indian Law section 15.09[4], at 1604 (2012 
ed.). Except as required for access to a mineral estate or specific 
authorization from Congress, prescriptive easements are not available 
on trust land, because trust land generally cannot be divested. See 
e.g., Del Rio Drilling Programs v. United States, 35 Fed. Cl. 186 
(1996) (mineral estate remains dominant, and a subsurface owner has a 
right of reasonable access to the minerals below). This is not 
specified in the final rule because it does not directly relate to 
rights-of-way.
    Comment: One commenter asked whether a right-of-way grant is 
required for general ingress and egress by a lessee.
    Response: A right-of-way grant is generally needed if an interest 
in the Indian land is being transferred. The leasing regulations 
provide that a lease may address access to the leased premises by roads 
or other infrastructure, and such roads and infrastructure must comply 
with 25 CFR part 169, unless otherwise stated in the lease. Roads and 
other infrastructure within the leased premises are covered by the 
lease. See 25 CFR 162.019.
    Comment: A commenter requested clarification on whether ``as-
built'' rights-of-way to correct unauthorized uses of Indian lands 
could be issued without a land use agreement authorizing use of the 
Indian land.
    Response: The intent of the exemption for land use agreements is 
not to allow what would otherwise require BIA approval to bypass 25 CFR 
part 169 requirements by calling it a ``land use agreement.'' The 
intent is to allow for land use agreements such as those authorized by 
25 CFR part 84. ``As built'' rights-of-way would be authorized under 25 
CFR part 169.
    Comment: A tribal commenter suggested the regulations include a 
provision under which a tribe could elect to dedicate a portion of 
tribal land for the construction, operation, and maintenance of 
tribally owned public transportation facilities, such as roads, 
bridges, and highways, and record that dedication in the appropriate 
land title and records office. A few tribal commenters suggested adding 
a new section recognizing that tribes may dedicate their own trust or 
restricted lands for public transportation, without having to obtain 
rights-of-way.
    Response: These regulations do not affect a tribe's ability to 
dedicate tribal land for certain uses but granting interests in Indian 
land to third parties would require a right-of-way.
    Comment: One commenter expressed concern that, by deleting the 
various types of rights-of-way listed in current Sec.  169.23 (railroad 
station buildings, depots, machine shops, side tracks, etc.), one could 
argue that such uses are no longer covered by the regulation.
    Response: The final rule covers all uses that fall within final 
Sec.  169.5, whether listed or not.
    Comment: A commenter requested excluding ``customary and 
traditional dirt roads'' used to access homesites from the need to 
obtain a right-of-way grant.
    Response: Customary and traditional dirt roads to access homesites 
may be addressed in the homesite lease, rather than requiring a 
separate right-of-way grant.

 5. Types of Uses for Rights-of-Way (PR 169.005)

    Comment: A commenter requested clarification of whether the 
provision in PR 169.005(a)(4) for ``service roads and trails essential 
to any other right-of-way purpose'' is intended to address access 
across only the same allotment or access across adjacent or nearby 
Indian land. Another commenter requested that ``appurtenant to'' 
replace ``essential to'' to avoid disputes over what types of service 
roads and trails are ``essential.''
    Response: The question of whether a right-of-way is required for 
service roads and trails is required is determined on a case-by-case 
basis. The final rule replaces ``essential to'' with ``appurtenant to'' 
as requested by the commenter.
    Comment: Commenters requested additions to the list of rights-of-
way types part 169 is intended to cover, including: oil and gas 
facilities such as well pads and associated service roads; pump 
stations, meter stations and other appurtenant facilities to oil and 
gas pipelines; and power projects (power plants, substations and 
receiving stations). A commenter also requested specifying that ``oil 
and gas'' includes hydrocarbons, refined products, natural gas liquids 
and other oil and gas products. One commenter stated that radio, 
television, and other communication facilities should be added to the 
list of examples.
    Response: The final rule adds pump stations, meter stations and 
other appurtenant facilities to the oil and gas pipeline item. 
Appurtenant facilities may also include well pads. Whether such 
facilities will be addressed in the grant depends upon the specific 
circumstances. The facilities may be included in the overall mineral 
lease, and therefore addressed in separate mineral leasing regulations. 
If the facilities are associated with a mineral lease on a split estate 
(in which the mineral estate and the surface estate are not owned by 
the same person or entity), then it may be appropriate for

[[Page 72501]]

the grant of right-of-way to address the facilities.
    The final rule does not add examples of oil and gas products 
because the term ``oil and gas'' is broad enough to encompass each of 
the examples. The final rule does not add power plants, substations and 
receiving stations to the list of examples because these items may be 
more appropriately governed by the leasing regulations at 25 CFR part 
162 than these rights-of-way regulations. The list of examples includes 
``telecommunications'' lines, which is intended to cover computer, 
television, radio, and other types of lines for technology used for 
communication over distances.
    Comment: One commenter requested an exception from part 169 for 
temporary access for mineral exploration.
    Response: The mineral regulations, rather than part 169, address 
temporary access for mineral exploration and geological and geophysical 
permits. See 25 CFR parts 211 and 212.
    Comment: One commenter requested a catch-all provision for the list 
of examples of rights-of-way such as ``any other right-of-way that 
comes to be recognized as such'' to capture any new types of rights-of-
way that will arise in the future.
    Response: The final rule adds a catch-all provision as requested at 
FR 169.5(a)(13).
    Comment: One commenter requested that the final rule delete the 
examples of right-of-way uses and instead stated that the part covers 
rights-of-way for all linear and non-linear surface uses.
    Response: The final rule retains the list of examples for guidance.
    Comment: One power administration commenter requested clarification 
that a right-of-way includes the right to manage vegetation and conduct 
emergency and routine maintenance as necessary to maintain safe and 
reliable electric transmission service. The commenter also requested an 
appendix to the rule setting out specifically which equipment is 
included in a transmission system right-of-way and allow for 
inspection, maintenance, repair, operations, upgrade and replacement of 
the equipment. The commenter also asked that the description be more 
specific with regard to electric transmission systems.
    Response: The final rule adds a new paragraph (b) to Sec.  169.5 to 
clarify that a right-of-way includes access necessary to manage 
vegetation and maintain and repair equipment. The final rule does not 
include an appendix, because the text of the rule specifies that poles, 
towers, and appurtenant facilities are included in a transmission 
right-of-way use, and the new paragraph (b) specifies that inspection, 
maintenance, and repair are included in the use. With regard to 
operations, upgrade, and replacement of the equipment, generally these 
activities would be allowed, but if they expand or change the use of 
the right-of-way then an amendment to the existing grant or a new 
right-of-way grant would be required. The final rule adds more 
specificity to Sec.  169.5(a)'s description of electric transmission, 
as requested by the commenter.
    Comment: One commenter stated that any questions as to a right-of-
way's validity should be decided in tribal court.
    Response: Because the rights-of-way are issued by the Federal 
Government, the proper forum for disputes related to their validity is 
the Federal administrative agency (Bureau of Indian Affairs, with the 
possibility for appeal to the Interior Board of Indian Appeals). 
Appeals from federal administrative decisions are heard in the United 
States District Courts.
    Comment: A few commenters read proposed 169.005(b) (now FR 169.6) 
as allowing prior unperfected and unapproved rights-of-way to be 
recognized as valid and legal rights-of-way.
    Response: This provision does not validate or approve existing, 
unapproved rights-of-way. Any unauthorized use remains unauthorized.
    Comment: A commenter asked that proposed 169.005(b) (now FR 169.6) 
state that BIA will act on requests, rather than ``grant,'' to clarify 
that the grant of a right-of-way is not automatic.
    Response: The final rule clarifies at final Sec.  169.6 that BIA 
will act on requests.

6. Applicability to Existing Rights-of-Way and Applications (PR 
169.006/FR 169.7)

    Comment: A commenter requested that the new regulations not apply 
to any applications that are pending BIA approval, because applying the 
new regulations would create legal uncertainty as to the enforceability 
and effectiveness of those applications. This commenter was 
particularly concerned that the applicant would be penalized for BIA's 
delay in approval by being forced to obtain new consents from 
landowners and resubmit information.
    Response: Applicants who have already submitted a right-of-way 
application under the pre-existing regulations, prior to the effective 
date of the new regulation, would not have to obtain any new consents 
or resubmit materials for the application as a result of the new 
regulations. BIA will review the application under the regulations 
existing at the time of submission, unless the applicant chooses to 
have the new regulations apply by withdrawing and resubmitting the 
application.
    Comment: Several commenters requested that the rule expressly state 
that it does not and will not impose any new burdens, limitations, 
restrictions, or responsibilities on preexisting right-of-way grants 
issued through other statutory authorities. A commenter requested 
clarification that the regulations do not apply to railroad rights-of-
way granted in perpetuity under specific statues enacted by Congress in 
the late 19th century.
    Response: Rights-of-way under statutes other than 25 U.S.C. 323 
exist. Only new grants of rights-of-way must comply with part 169's new 
provisions for obtaining a right-of-way. Existing approved rights-of-
way remain valid under the new regulations. The new provisions of part 
169 do not affect the authority of those specific railroad statutes; 
however, the procedural requirements of the new part 169 will apply to 
the extent that they do not conflict with the authorizing statute or 
explicit provisions in the grant. For rights-of-way granted under 
specific statutory provisions, rather than the general authority in 25 
U.S.C. 323, BIA will read the existing statutory requirements and grant 
provisions in a manner that promotes consistency with the new 
regulations.
    Comment: Many commenters opposed the proposed provision stating 
that the new regulations apply retroactively to existing right-of-way 
grants except where they ``conflict'' with the express terms of those 
grants, and stated that rights-of-way approved prior to the new rule's 
effective date should not be subject to the new rule. These commenters 
pointed out that most pre-existing grants are silent on the 
requirements imposed by the new regulations. For example, a right-of-
way grant without a specific provision waiving BIA approval or consent, 
as was the common practice (because express language was never before 
required), would now require BIA approval and landowner consent for 
certain actions (assignments, e.g.). A few commenters asserted that 
existing rights-of-way grants are property rights. Commenters also 
stated that BIA cannot legally modify or insert new material terms into 
existing grants, but must honor the terms as written and the parties' 
expectations as of the time the grant was issued. These commenters 
stated that exempting the existing rights-of-way would preserve the 
integrity of existing

[[Page 72502]]

contracts and avoid legal issues for breach of contract, breach of 
implied duty of good faith and fair dealings, or takings.
    With regard to assignments, specifically, several tribal commenters 
requested that consent and approval always be required because there 
have been numerous instances in which a right-of-way was assigned with 
no notification to, or consent of, the tribe, meaning that neither the 
landowner nor BIA may have record of the authorized user of the Indian 
land.
    Response: The new regulations are not intended to replace the 
original grant or statutory provisions, but the procedural requirements 
of these new regulations apply to the extent they do not conflict with 
the original grant or statutory provisions.
    In addition, in response to tribal commenters' concerns that, in 
the past, rights-of-way were assigned without any notification to BIA 
or the tribe, the final rule establishes a new requirement for the 
assignee to notify BIA of past assignments to ensure BIA is aware of 
the identity of the legal occupant of the Indian land in furtherance of 
meeting its trust responsibilities to protect the Indian land from, for 
example, trespass. From the perspective of the assignee, this 
recordation requirement is simply a good business practice to ensure 
the Department has documentation of the assignee's right to occupy 
Indian land. The final rule establishes a target deadline of 120 days 
after the effective date of the regulations for assignees to either 
provide BIA with documentation of their assignment, or to request an 
extension of time to provide BIA with such documentation. This 
requirement is not included in the previous version of the regulations 
but is imperative to BIA's ability to fulfill its trust 
responsibilities.
    For any right-of-way grant application submitted but not yet 
approved by the effective date of the regulations, the grantee may 
withdraw the application and resubmit under the new rule. Otherwise, 
BIA will review the application under the regulations in existence at 
the time of submission, but once the right-of-way is granted, 
procedural provisions of the new rule apply. For example, if the 
grantee or assignee wants to assign, amend, or mortgage the right-of-
way after the effective date of these regulations, the grantee or 
assignee will have to follow the procedures in this regulation, to the 
extent that such new processes and requirements do not change the terms 
of the pre-existing grant or statutory authority. In other words, if 
the preexisting grant or statutory authority is silent on a particular 
procedural requirement, such as an assignment or amendment, the new 
regulatory provisions concerning that procedure would apply.
    Examples of procedural provisions that apply include procedures for 
obtaining amendments, assignments, mortgages, renewals, and complying 
with and enforcing rights-of-way grants. However, many current grants 
include language granting to the grantee and the grantee's assignees; 
in that case, the grant would contain explicit language allowing the 
grant to be freely assigned without landowner consent or BIA approval, 
and that explicit grant language would govern. An example of a non-
procedural provision is a regulatory statement of what jurisdiction 
applies.
    The question of whether tribal law or taxes apply to preexisting 
right-of-way grants after the effective date of the new regulations is 
not before the Department at this point, but to the extent any 
preexisting right-of-way is assigned or amended, the provisions of the 
new regulations govern.
    Comment: A few commenters stated that the rule should allow for 
renewals of rights-of-way grants existing prior to these regulations 
without the need to obtain consent because those older grants may not 
have addressed the possibility of renewal. Commenters further stated 
that this new requirement should not be applied retroactively, and that 
otherwise, this rule will effectively prevent renewal of existing 
rights-of-way, even when there is no change in use, requiring a survey 
and full application process.
    Response: If the original right-of-way was granted prior to the 
effective date of these regulations and is silent on whether renewals 
are permitted and under what conditions, then these regulations apply, 
and the grantee must follow the procedural requirements of these new 
regulations to obtain a renewal. See Section C for more on renewals.
    Comment: A few commenters stated that the review and adjustment 
requirements should not be applied retroactively. The commenters note 
that the current regulations provide no requirement for review or 
adjustment.
    Response: The review and adjustment requirements do not apply 
retroactively to grants that pre-date these regulations because they 
are non-procedural (i.e., substantive) provisions that would affect 
compensation, a core term of the grant; those grants were issued based 
on the compensation established when they were negotiated and approved.

7. Administration of Regulations by Tribes on BIA's Behalf (PR 169.007/
FR 169.8)

    Comment: One tribal commenter requested that, throughout the 
regulations, ``BIA,'' ``BIA office,'' and ``we'' should be revised to 
clarify that it refers to the tribe in those cases in which the tribe 
administers real estate services under a Public Law 93-638 contract.
    Response: The term ``BIA'' is defined to include tribes acting on 
behalf of the Secretary or BIA under Indian Self-Determination and 
Education Assistance Act contracts or compacts.
    Comment: One commenter stated that tribes do not gain any 
substantive authority to administer rights-of-way under the new rules 
because the new rules do not allow tribes to grant, approve, or 
disapprove a right-of-way document or waiver, cancellation or appeal.
    Response; The new rules make no change to the scope of functions a 
tribe may compact or contract for, but does specify which functions may 
not be contracted or compacted because they are ``inherently Federal.''
    Comment: One commenter asked that this section specify that a tribe 
may require that the applicant negotiate with it as a condition of 
obtaining tribal consent for the right-of-way.
    Response: When tribal consent for a right-of-way provision is 
required, the tribe may require that the applicant negotiate the terms 
of consent.
    Comment: One commenter stated that the rule should be clearer on 
whether BIA or the tribe administers the functions.
    Response: The final rule clarifies that applicants may check with 
either the BIA office or the tribal office to determine whether the 
tribe has compacted or contracted to administer realty functions.
    Comment: One commenter asserted that tribes are not authorized to 
compact or contract to administer BIA functions with regard to pipeline 
rights-of-way because the Indian Self-Determination and Education 
Assistance Act (ISDEAA) does not specify that program.
    Response: Realty functions, including administration of rights-of-
way, may be compacted or contracted under the ISDEAA. See 25 U.S.C. 
450f(a)(1)(A)-(E).
    Comment: A commenter stated that the term ``tribal organization'' 
in this section is unclear as to whether it includes entities such as 
the telephone authority. Another commenter requested clarification on 
which officer or entity in the tribe is authorized to

[[Page 72503]]

make decisions in administering the compacted or contracted functions.
    Response: The ISDEAA governs the meaning of ``tribal organization'' 
in this section. Tribal law governs which officer or entity is 
authorized to make decisions on behalf of a tribe.

8. Laws Applicable to Rights-of-Way Approved Under These Regulations 
(PR 169.008/FR 169.9)

    Comment: A commenter stated that the rule should specify that a 
right-of-way ``use'' is interpreted consistently with general common 
law principles of easements and rights-of-way, and that Federal common 
law applies except that State law may apply where it is not hostile or 
aberrant to Federal policy or otherwise frustrates Federal policy.
    Response: Final Sec.  169.9 clarifies that rights-of-way are 
generally subject to Federal and tribal law, but not State law.
    Comment: A commenter noted that the structure of the proposed 
section is disjointed and causes confusion. Other commenters stated 
that the section should be deleted because of the risk that the 
regulations could cause confusion regarding what the law is and is 
unnecessary.
    Response: The final rule redrafts this section to address concerns 
as to its disjointed and confusing nature and also divides the section 
into two separate sections, one addressing law (FR 169.9), and one 
addressing jurisdiction (FR 169.10).
a. State Jurisdiction/State Law
    Comment: Several commenters opposed the proposed provision allowing 
parties to consent to the applicability of State law, stating that it 
is a waiver of sovereign immunity and that landowners may inadvertently 
choose State law by signing a document without full knowledge of the 
consequences.
    Response: Proposed paragraph (c) was a choice of law provision that 
was intended to clarify that where a vacuum of applicable Federal and 
tribal law exists, the landowners may choose to apply State law. The 
final rule deletes this provision due to commenters' opposition.
    Comment: Several commenters opposed the proposed provision 
indicating that State law applies if the tribe, Congress, or a Federal 
court has made it expressly applicable. Several commenters stated that 
this provision invites a broad reading, allowing State law to apply in 
nearly every circumstance. One commenter stated that the Kennerly case 
forecloses the application of State jurisdiction over Indian land 
subject to a right-of-way, whether by a tribal member or a tribe absent 
a statute conferring jurisdiction. One commenter suggested the 
provision instead state that rights-of-way are not subject to State law 
``except to the extent allowable under Federal law and consistent with 
Indian treaty rights and tribal sovereignty.''
    Response: To address the comments, the final rule deletes the 
specifics on when State or local law may apply and instead provides 
that ``generally'' State and local law do not apply. The provision 
allowing landowners to agree to the application of State law was 
intended for situations in which neither the tribe nor Federal law 
address a specific topic, and the tribe chooses State law to fill the 
vacancy (e.g., if a tribe chooses to apply State law regarding cable 
access). The proposed provision regarding Congress was included because 
there are Federal statutes conferring jurisdiction over Indian land 
subject to a right-of-way (e.g., Maine Indian Claims Settlement 
Agreement of 1980 or Pub. L. 83-280). If State law is made applicable 
by Federal or tribal law, these instances are covered by the other 
provisions establishing the applicability of Federal and tribal law.
    Comment: Some commenters stated that the new regulation conflicts 
with established law (in Strate) because tribal law and jurisdiction 
does not presently apply to lands subject to a right-of-way.
    Response: The new regulation provides that future rights-of-way 
will explicitly state that the grant does not diminish the tribe's 
jurisdiction.
    Commenter: Some commenters stated that this section truncates State 
jurisdiction over Indian lands, violating the Federalism executive 
order.
    Response: The Federalism executive order addresses the balance of 
authority between the Federal government and States; it is inapplicable 
here because this rule addresses the balance of authority between 
tribal and State law.
b. Tribal Law
    Comment: A few commenters stated that proposed paragraph (a) is 
erroneous in stating that rights-of-way are subject to tribal law 
because Congress preempted any application of tribal law to 
transportation by rail and State laws apply to utility service on 
tribal lands. A commenter also noted that some tribes have relinquished 
jurisdiction by treaty.
    Response: Paragraph (a), as well as other paragraphs in this 
section, do not expand the applicability of tribal law; rather it 
clarifies that the grant of a right-of-way will not limit any existing 
applicability in any way.
    Comment: Several tribal commenters stated that the proposed 
paragraph (a)(2) should simply say that rights-of-way are subject to 
tribal law ``except to the extent that tribal law is inconsistent with 
applicable Federal laws'' and delete the provisions in proposed 
paragraph (b) allowing for tribal law to modify the regulations under 
certain circumstances. Tribal commenters stated that the provisions are 
too restrictive and disrespect tribal sovereignty. Additionally, non-
tribal commenters expressed concerns that tribal regulations may change 
without any notice or consent of the right-of-way grantee. Another 
stated that if the provision is not removed, it should at least clarify 
that the tribal law will not be effective if it conflicts with other 
binding Federal laws. One tribal commenter stated that allowing the 
tribal law to supersede unless the tribe's law would ``conflict with 
our general trust responsibility'' provides no guidance. Some tribal 
commenters stated that the regulation should provide that tribal law 
``presumptively applies.'' A few commenters stated that tribal laws 
should apply to all land within the reservation (both tribal and 
allotted); otherwise, an individual could consent to a right-of-way 
that is in violation of tribal law.
    Some commenters opposed the applicability of tribal law under any 
circumstance because a grantee that needs to obtain rights-of-way 
across several tribes' lands could be subjected to multiple, and 
possibly conflicting requirements, undermining the purpose of the rule 
to streamline the process. A tribal commenter also suggested deleting 
the requirement that the tribe provide BIA with notice that the law 
supersedes because this could become a technical glitch that would 
hinder application of tribal laws that would otherwise be applicable.
    Response: In response to these comments regarding the uncertainty 
of whether tribal law would supersede or modify Federal law, the final 
rule simplifies this provision to state that rights-of-way are subject 
to tribal law except to the extent that the tribal law is inconsistent 
with applicable Federal law. Tribes are sovereigns with the inherent 
power to make laws. It is the responsibility of anyone doing business 
within a particular jurisdiction to know the law of that jurisdiction.
    Comment: One commenter stated that the phrase ``except to the 
extent that those tribal laws are inconsistent with these regulations 
or other applicable Federal law'' should be deleted because

[[Page 72504]]

it is too confusing, and is unnecessary given that it has already been 
established that Federal law applies.
    Response: The final rule retains this necessary provision because 
there may be circumstances in which tribal law would apply but for the 
fact that the tribal law is inconsistent with Federal law.
c. Tribal Jurisdiction
    Comment: A few tribal commenters suggested line edits to this 
section to clarify that the tribe has jurisdiction over persons, as 
well as activities, and to change ``not inconsistent with'' to 
``within'' the right-of-way. Commenters also stated that people and 
activities should be included in the scope of things over which the 
tribe's jurisdiction remains unaffected.
    A few other commenters requested the rule instead expressly 
describe circumstances in which the tribe's jurisdiction does not 
extend to lands subject to a right-of-way, such as taxation of non-
tribal members on fee land within a reservation. Another commenter 
stated that the rule should reflect that tribes have ``virtually no 
authority over non-member conduct.''
    Response: The final rule does not grant or add any jurisdiction to 
tribes, but establishes that the grant of right-of-way does not 
diminish the tribe's jurisdiction. The final rule also clarifies that 
the grant of right-of-way does not affect the tribe's jurisdiction over 
people and activities, in addition to land. A grant of right-of-way is 
merely a grant of a specific use of the land for a specified period of 
time within the confines of the grant document. The grant does not in 
any way diminish tribal sovereignty over those lands.
    Comment: A commenter suggested deleting the introduction to 
proposed paragraph (e) because it suggested a tribe might cede tribal 
jurisdiction in its consent to a right-of-way, while Kennerly 
established that this can be done only through an Act of Congress.
    Response: The final rule deletes the identified provision because, 
as the commenter points out, the U.S. Supreme Court has determined that 
a tribe may not cede jurisdiction without an Act of Congress. See 
Kennerly v. District Court, 400 U.S. 423 (1971).
    Comment: One tribal commenter stated that the regulations should 
remind the public of the basic principle of Indian law that tribes may 
negotiate a right-of-way without including State regulatory bodies.
    Response: While the commenter is correct, it is not necessary to 
state so in the regulation.
    Comment: A commenter stated that proposed paragraph (e)'s language 
that the tribe has jurisdiction over those ``who enter into consensual 
relationships'' does not apply in the context of right-of-way grants 
because case law has established that grantees are not in a 
``consensual relationship'' with the tribe by virtue of the right-of-
way grant. Other commenters suggested that the provision stating that 
the regulation does not limit the tribe's inherent sovereign power to 
exercise civil jurisdiction over non-members ``who enter into 
consensual relationships'' with the tribes improperly limits the 
tribes' sovereign power by implying that the Montana analysis extends 
beyond fee land.
    Response: The proposed language regarding a consensual relationship 
was derived from the decision in Montana v. United States, 450 U.S. 
544, 565 (1981). As commenters pointed out, Montana's general rule 
limiting tribal authority over nonmembers' activities and its two 
exceptions, including the consensual relationship exception, is limited 
to non-Indian fee land. 450 U.S. at 557. See also Strate v. A-1 
Contractors, 520 U.S. at 453 (describing Montana's ``main-rule and 
exceptions'' as ``[r]egarding activity on non-Indian fee land''); 
Atkinson Trading Co. v. Shirley, 532 U.S. 645, 654 (2001) (referring to 
``Montana's general rule that Indian tribes lack civil authority over 
nonmembers on non-Indian fee land''); Water Wheel Camp Recreational 
Area, Inc. v. LaRance, 642 F.3d 802, 813 (9th Cir. 2011) (noting that 
``Montana ordinarily applies only to non-Indian Land''). The Montana 
court recognized that a tribe may regulate nonmembers' activities ``on 
land belonging to the [t]ribe or held by the United States in trust for 
the [t]ribe.'' 450 U.S. at 557. For this reason, the final rule 
eliminates the ``consensual relationship'' language and instead states 
simply that the regulations do not limit the tribe's inherent sovereign 
power to exercise civil jurisdiction over non-members on Indian land. 
Plains Commerce Bank v. Loving Family Land & Cattle Co., 554 U.S. 316, 
327-28 (2008). This statement confirms that the grant of right-of-way 
preserves any pre-existing tribal authority.
    Even if Montana's rule and exceptions do apply, we disagree with 
the commenters that a tribe is not in a consensual relationship with a 
right-of-way grantee on tribal trust or restricted land. Under Montana, 
an Indian tribe ``may regulate, through taxation, licensing, or other 
means, the activities of nonmembers who enter consensual relationships 
with the tribe or its members, through commercial dealing, contracts, 
leases, or other arrangements.'' 450 U.S. at 565. As explained above, 
and required by the 1948 Act, tribal consent is required for the right-
of-way. Therefore, the consensual relationship exception applies.
    Comment: Several commenters asserted that the tribe has no 
jurisdiction over right-of-way land or over non-Indians, pointing to 
the decision in Strate for the premise that land subject to a right-of-
way is the equivalent of fee land.
    Response: As described above, the fact pattern, and, therefore, the 
cited holding, in Strate does not apply to rights-of-way granted under 
these regulations because the regulations and grants establish 
continued tribal jurisdiction over the granted land. Strate does 
confirm, however that ``where tribes possess authority to regulate the 
activities of nonmembers, civil jurisdiction over disputes arising out 
of such activities presumptively lies in the tribal courts.'' 520 U.S., 
at 453 (brackets and internal quotation marks omitted).
    Commenter: One commenter suggested that proposed paragraph (e)(5), 
regarding the character of the land as Indian country under 18 U.S.C. 
1151, should add ``as interpreted and supplemented by Federal case 
law.''
    Response: The final rule does not add this modifier because it is 
unnecessary. Whether land is ``Indian country'' is a legal question.
    Comment: One commenter stated their opposition to the tribe 
regulating allotted lands, and asserted that, under Strate, allotted or 
other land subject to a right-of-way grant is not subject to the 
tribe's jurisdiction.
    Response: The right-of-way grant does not affect the tribe's 
jurisdiction over the land. If the land is within the boundaries of the 
tribe's reservation, then the tribe has jurisdiction, regardless of 
whether a right-of-way has been granted. See Cohen's Handbook on 
Federal Indian Law section 4.01[2][c], at 216-218 (2012 ed.).
    Comment: A few commenters noted that proposed paragraph (e)(2) 
seems to assert that the tribe has the power to tax trust land, and 
instead should be limited to allowing the tribe to tax improvements and 
activities.
    Response: This section is simply clarifying that the regulations do 
not affect any pre-existing jurisdiction that the tribe may have. See 
Merrion v. Jicarilla, 455 U.S. 130 (1982); Cohen's Handbook on Federal 
Indian Law section 8.01[1], at 676 (2012 ed.) (``Indian tribes have the 
power to law and collect taxes, subject to certain

[[Page 72505]]

exceptions with respect to non-Indians'').

9. Taxes Applicable to Rights-of-Way Approved Under These Regulations 
(PR 169.9/FR 169.11)

    Comment: Several commenters supported the proposed rule's 
affirmation of tribes' exclusive and continuing sovereign authority to 
tax improvements and activities on lands subject to rights-of-way. 
These commenters suggested the final rule require that the right-of-way 
applications and documents include references to this section and 
describe the basis for this section to reinforce the Department's 
position. One commenter recommended that the regulations prohibit State 
taxation of any compensation the tribe receives for its right-of-way 
and any pass-through to the tribe or tribal members. This commenter 
noted that if a State requires a tribe to pay back any of the 
compensation it receives for a right-of-way, the State is effectively 
circumventing the compensation requirement, benefitting, for example, a 
rural electric cooperative at the expense of the tribal beneficiaries. 
One commenter stated that the U.S. Supreme Court has ruled that certain 
State taxes may apply to utilities that operate within Indian rights-
of-way, pointing to Wagnon v. Prairie Band of Potawatomi Nation, 546 
U.S. 95 (2005).
    Response: The final rule at Sec.  169.125(c) adds requirements for 
the right-of-way documents to include references to the regulatory 
section on taxation. Tribes have inherent plenary and exclusive power 
over their citizens and territory, which has been subject to 
limitations imposed by Federal law, including but not limited to 
Supreme Court decisions, but otherwise may not be transferred except by 
the tribe affirmatively granting such power. See Cohen's Handbook of 
Federal Indian Law, 2012 Edition, section 4.01[1][b]. The U.S. 
Constitution, as well as treaties between the United States and Indian 
tribes, executive orders, statutes, and other Federal laws recognize 
tribes' inherent authority and power of self-government. See Worcester 
v. Georgia, 31 U.S. 515 (1832); U.S. v. Winans, 198 U.S. 371, 381 
(1905) (``[T]he treaty was not a grant of rights to the Indians, but a 
grant of rights from them--a reservation of those not granted.''); 
Cohen's Handbook of Federal Indian Law, 2012 Edition, section 
4.01[1][c] (``Illustrative statutes . . . include [but are not limited 
to] the Indian Civil Rights Act of 1968, the Indian Financing Act of 
1974, the Indian Self-Determination and Education Assistance Act of 
1975 . . . [and] the Tribe Self-Governance Act . . . In addition, 
congressional recognition of tribal authority is [also] reflected in 
statutes requiring that various administrative acts of . . . the 
Department of the Interior be carried out only with the consent of the 
Indian tribe, its head of government, or its council.''); Id. (``Every 
recent president has affirmed the governmental status of Indian nations 
and their special relationship to the United States'').
    Section 5 of the Indian Reorganization Act, 25 U.S.C. 465, preempts 
State and local taxation of permanent improvements on trust land. See 
Confederated Tribes of the Chehalis Reservation v. Thurston County, 724 
F.3d 1153, 1157 (9th Cir. 2013) (citing Mescalero Apache Tribe v. 
Jones, 411 U.S. 145, 158 (1973) (``use of permanent improvements upon 
the land is so intimately connected with use of the land itself that an 
explicit provision relieving the latter of state tax burdens [25 U.S.C. 
465] must be construed to encompass an exemption for the former''). 
Similarly, section 465 preempts state taxation of rent payments by a 
lessee for leased trust lands, because ``tax on the payment of rent is 
indistinguishable from an impermissible tax on the land.'' See Seminole 
Tribe of Florida v. Stranburg, No. 14-14524, *13-*17, n.8 (11th Cir. 
2015).
    In addition, with a backdrop of ``traditional notions of Indian 
self-government,'' Federal courts have applied a balancing test to 
determine whether State taxation of non-Indians engaging in activity or 
owning property on the reservation is preempted. White Mountain Apache 
Tribe v. Bracker, 448 U.S. 136, 143 (1980). The Bracker balancing test 
requires a particularized examination of the relevant State, Federal, 
and tribal interests. In the case of rights-of-way on Indian lands, the 
Federal and tribal interests are very strong. Confederated Tribes of 
the Chehalis Reservation v. Thurston County, 724 F.3d at 1157; see also 
Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2043 (2014) 
(Sotomayor, J., concurring) (determining that ``[a] key goal of the 
Federal Government is to render Tribes more self-sufficient, and better 
positioned to fund their own sovereign functions, rather than relying 
on Federal funding'').
    The Federal statutes and regulations governing rights-of-way on 
Indian lands occupy and preempt the field of Indian rights-of-way. The 
Federal statutory scheme for rights-of-way on Indian land is 
comprehensive, and accordingly precludes State taxation. State taxation 
would undermine careful work of Federal actors analyzing the best 
interests of tribal beneficiaries under the trust responsibility.
    The Federal regulatory scheme is pervasive and leaves no room for 
State law. Federal regulations cover all aspects of rights-of-way: 
Whether a party needs a right-of-way grant to authorize possession of 
Indian land; how to obtain a right-of-way grant; how a prospective 
grantee identifies and contacts Indian landowners to survey and 
negotiate for a right-of-way grant; consent requirements for a right-
of-way and who is authorized to consent; what laws apply to rights-of-
way; employment preference for tribal members; combining tracts with 
different Indian landowners in a single right-of-way grant; trespass; 
emergency action by us if Indian land is threatened; appeals; 
documentation required in approving, administering, and enforcing 
rights-of-way; right-of-way grant duration; mandatory grant provisions; 
construction, ownership, and removal of permanent improvements, and 
plans of development; legal descriptions of the land subject to a 
right-of-way; amount, time, form, and recipient of compensation 
(including non-monetary rent) for rights-of-way; valuations; bond and 
insurance requirements; Secretarial approval process, including 
timelines, and criteria for granting rights-of-way; recordation; 
consent requirements, Secretarial approval process, criteria for 
approval, and effective date for grant amendments, assignments, 
subleases, and mortgages; investigation of compliance with the terms of 
a right-of-way grant; negotiated remedies; late payment charges or 
special fees for delinquent payments; allocation of insurance and other 
payment rights; Secretarial cancellation of a grant for violations; and 
abandonment of the premises subject to a right-of-way grant.
    Right-of-way grants allow Indian landowners to use their land 
profitably for economic development, ultimately contributing to tribal 
well-being and self-government. Assessment of State and local taxes 
would obstruct Federal policies supporting tribal economic development, 
self-determination, and strong tribal governments. State and local 
taxation also threatens substantial tribal interests in effective 
tribal government, economic self-sufficiency, and territorial autonomy. 
It is unequivocally the policy of the United States to attract economic 
development to Indian lands. State taxation can undermine the economic 
attractiveness of a right-of-way across Indian land. It can also 
effectively undermine the ability of a tribe, as a practical matter, to 
impose its own taxation. Consenting

[[Page 72506]]

to rights-of-way on trust or restricted land is one of several tools, 
including entering into leases, that animate ``the traditional notions 
of sovereignty and [ ] the federal policy of encouraging tribal 
independence.'' Bracker, 448 U.S. at 145 (citing McClanahan v. Arizona 
State Tax Comm'n, 411 U.S. 164, 174-75 (1973)). The granting of rights-
of-way on trust or restricted lands facilitates the implementation of 
the policy objectives of tribal governments through vital residential, 
economic, and governmental services. Tribal sovereignty and self-
government are substantially promoted by rights-of-way under these 
regulations, which require significant deference, to the maximum extent 
possible, to tribal determinations that a grant provision or 
requirement is in its best interest. See Joseph P. Kalt and Joseph 
William Singer, The Native Nations Institute for Leadership, 
Management, and Policy & The Harvard Project on American Indian 
Economic Development, Joint Occasional Papers on Native Affairs, Myths 
and Realities of Tribal Sovereignty: The Law and Economics of Indian 
Self-Rule, No. 2004-03 (2004) (``economically and culturally, 
sovereignty is a key lever that provides American Indian communities 
with institutions and practices that can protect and promote their 
citizens interests and well-being [and] [w]ithout that lever, the 
social, cultural, and economic viability of American Indian communities 
and, perhaps, even identities is untenable over the long run'').
    Another important aspect of tribal sovereignty and self-governance 
is taxation. Permanent improvements and activities on the premises 
subject to a right-of-way and the interest itself may be subject to 
taxation by the Indian tribe with jurisdiction over the leased 
property. The Supreme Court has recognized that ``[t]he power to tax is 
an essential attribute of Indian sovereignty because it is a necessary 
instrument of self-government and territorial management.'' Merrion v. 
Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982). State and local 
taxation of grantee-owned improvements, activities conducted by the 
grantee, and the right-of-way interest also has the potential to 
increase project costs for the grantee and decrease the funds available 
to the grantee to compensate the Indian landowner. Increased project 
costs can impede a tribe's ability to attract non-Indian investment to 
Indian lands where such investment and participation are critical to 
the vitality of tribal economies. An increase in project costs is 
especially damaging to economic development on Indian lands given the 
difficulty Indian tribes and individuals face in securing access to 
capital. A 2001 study by the U.S. Department of the Treasury found that 
Indians' lack of access to capital and financial services is a key 
barrier to economic advancement. U.S. Dept. of the Treasury, Community 
Development and Financial Institutions Fund, The Report of the Native 
American Lending Study at 2 (Nov. 2001). According to the report, 66 
percent of survey respondents stated that private equity is difficult 
or impossible to obtain for Indian business owners. Id.
    Tribes may contractually agree to reimburse the non-Indian grantee 
for the expense of the tax, resulting in the economic burden of the tax 
ultimately being borne directly by the tribe. Accordingly, the very 
possibility of an additional State or local tax has a chilling effect 
on potential grantees as well as the tribe that, as a result, might 
refrain from exercising its own sovereign right to impose a tribal tax 
to support its infrastructure needs. Such dual taxation can make some 
projects less economically attractive, further discouraging development 
in Indian country. Economic development on Indian lands is critical to 
improving the dire economic conditions faced by American Indians and 
Alaska Natives. The U.S. Census Report entitled We the People: American 
Indians and Alaska Natives in the United States, issued February 2006, 
documented that a higher ratio of American Indians and Alaska Natives 
live in poverty compared to the total population, that participation in 
the labor force by American Indians and Alaska Natives was lower than 
the total population, and that those who worked full-time earned less 
than the general population. See also U.S. Census American Community 
Survey Brief: Poverty Rates for Selected Detailed Race and Hispanic 
Groups by State and Place: 2007-2011 (Issued February 2013).
    In addition, Congress specifically allowed for State taxation of 
rights-of-way on Indian land in other instances, such as at 25 U.S.C. 
319. The fact that Congress did not specifically authorize State 
taxation at 25 U.S.C. 323 evidences that it did not intend for rights-
of-way granted under that authority to be taxable by the State. Indeed, 
to the extent that the lack of a specific authorization for State 
taxation creates an ambiguity, the Department expressly determines, for 
all the reasons stated above, that State taxation is not authorized 
under 25 U.S.C. 323 and would substantially undermine the statutory 
scheme.
    Comment: One State commenter stated that it addresses the dual 
taxation issue by entering into intergovernmental agreements with the 
tribes, whereby the State collects the tax and shares the revenue with 
the tribes. The State expressed its concern that if the rule removes 
State jurisdiction to tax projects in rights-of-way, then tribes will 
have to undertake the expensive auditing and tax collection functions, 
and the uniformity of intergovernmental agreements would be lost.
    Response: Nothing in these regulations precludes tribes, States, 
and local governments from entering into cooperative agreements to 
address taxation and regulatory issues. The Department encourages such 
cooperative agreements.
    Comment: One commenter requested clarification that State or local 
governments may not assess a tax, fee, assessment, etc., on materials 
used or services performed in constructing improvements in rights-of-
way.
    Response: The final rule's term ``activities'' is intended to 
include, among other things, materials used or services performed in 
constructing improvements in the right-of-way.
    Comment: A few commenters stated that certain individuals or 
entities should not be subject to taxation, such as when a State, 
county, city, other tax-exempt entity, or allottee is making the 
improvements, participating in the activities, or holding the 
possessory interest.
    Response: The final rule does not change the scope of individuals 
and entities that a tribe may tax, but merely recognizes explicitly 
this authority where it exists.
    Comment: One commenter noted that ``possessory interest'' should 
instead be ``right-of-way interest.''
    Response: The final rule replaces ``possessory interest'' with 
``right-of-way interest'' in response to this comment.
    Comment: One commenter stated that by prohibiting State taxation on 
rights-of-way on Indian land, the rule does not guarantee that tribes 
commensurately gain taxing authority, but rather opens a jurisdictional 
vacuum. The commenter stated that a vacuum would be detrimental to the 
public as a whole and tribal members who live near rights-of-way.
    Response: The rule does not create a jurisdictional vacuum, as 
tribes may tax within their jurisdiction; it is up to the tribe whether 
to exercise that taxing jurisdiction.
    Comment: A few commenters stated that the proposed provisions 
regarding improvements being subject to taxation by tribes are 
unnecessary and should be

[[Page 72507]]

deleted, because they could be read to expand tribes' taxing authority 
rather than just preserve taxing authority where it already exists.
    Response: The final rule combines the proposed provisions into one 
comprehensive provision at paragraph (b) addressing tribal taxation of 
improvements. The final rule does not change the substance of the 
proposed rule. The commenters are correct that this provision is 
intended to preserve tribal taxation authority. The Department has 
determined that no change is necessary to the proposed language, that 
improvements ``may be subject to taxation by the Indian tribe,'' 
because this language states that such authority may exist without 
providing independent authority for taxation.
    Comment: A few commenters stated that proposed Sec.  169.009's use 
of the phrase ``subject only to Federal law'' is ambiguous. One said it 
could be read to exclude tribal law. Another commenter asked 
specifically whether any ``fee, tax, assessment'' under this section 
would include State and local income taxes, gross receipt taxes, 
payroll taxes, and personal property taxes. A few commenters stated 
that there are Federal court decisions upholding State taxes on 
interests or activities in a right-of-way, including Agua Caliente Band 
of Mission Indians v. Riverside County, 442 F.2d 1184 (9th Cir. 1971) 
and Fort Mojave Tribe v. San Bernardino County, 543 F.2d 1253 (9th Cir. 
1976). One commenter stated that the rule should clarify that Federal 
court decisions' precedential weight should be limited to rights-of-way 
granted before the effective date of the revised regulations.
    Response: To clarify, the phrase ``subject to'' in final rule Sec.  
169.11 (and PR 169.009) means that State or political subdivisions of 
States may not propose fees, taxes, assessments, etc., unless Federal 
law provides otherwise. Federal law includes, but is not limited to, 
Federal statutes, Federal regulations, treaty provisions, Executive 
orders, or Federal case law. Each fee, tax, and assessment is subject 
to an analysis under Federal law, including any applicable Federal case 
law precedent. The Department agrees that Federal case law issued prior 
to these regulations may have limited precedential weight because they 
did not have the benefit of the Department's analysis under Bracker.
    Comment: One commenter stated that there is already extensive 
Federal regulation over the national power grid, and to the extent the 
rule's provisions could authorize new taxes on electric transmission 
services, it could interfere with national energy policy by adding 
costs to ratepayers. Another commenter stated that the rule extends 
beyond the Department' authority by unnecessarily complicating 
jurisdictional issues on Indian land. These and other commenters stated 
that the rule is contrary to current practices in which utilities pay 
county property taxes for facilities located on Indian lands. One 
commenter asked whether the county would be subject to enforcement 
under this rule for imposing taxes.
    Response: The final rule does not authorize taxation by tribes, 
States or political subdivisions of States, but preserves the tribe's 
ability to tax and states the Federal position in the Bracker balancing 
test on State taxation. While electric transmission may be subject to 
taxation by the tribe, a utility need not pay county property taxes for 
facilities that are outside the county's jurisdiction (i.e., on Indian 
land). A county that imposes taxes on a utility within a right-of-way 
on Indian land is not subject to enforcement under this rule because it 
is not a party to the right-of-way.
    Comment: A few commenters stated that a tribe's imposition of taxes 
upon non-members' interests or activities in a right-of-way is 
presumptively invalid, citing Atkinson Trading Co. v. Shirley, 532 U.S. 
645, 659 (2001).
    Response: The case cited by the commenter for this proposition 
related to fee land. As described above, trust or restricted land that 
is subject to a right-of-way remains trust or restricted land and it 
does not become fee land if the tribe reserves its jurisdiction over 
the land.
    Comment: One commenter suggested revising this section to state 
simply that taxes may be assessed if permitted by applicable law on 
land, improvements, and activities.
    Response: The final rule retains the substance of the proposed 
provisions on taxation, rather than taking the commenter's suggestion, 
in order to explain the strong Federal and tribal interests against 
State and local taxation.
    Comment: One commenter stated that, if the rule intends to alter 
the balance under the Bracker test, then it will impact the abilities 
of State and tribal governments to impose taxes, which is contrary to 
the statement in the Federalism section stating that the rule has no 
substantial direct effect on the States, the relationship between the 
national government and the States, or distribution of power. Another 
commenter stated that the Department should notify and consult with 
affected States before issuing a final regulation if it preempts State 
taxing authority.
    Response: The Federalism analysis addresses the balance of power 
between the Federal government and States. The balance of power between 
tribal governments and States is outside the scope of Federalism. As 
noted above, States commented on the proposed rule, including on this 
provision.
    Comment: One commenter questioned how any structure within a right-
of-way for a term less than an indefinite term could be considered a 
``permanent improvement.''
    Response: The final rule adds a definition for permanent 
improvement to clarify its meaning; it is not necessary that the 
improvement be actually permanent, but that it be attached to (or in) 
the land.
    Comment: One commenter stated that the tribe cannot tax the land 
because trust and restricted lands are not subject to taxation.
    Response: The regulation addresses taxation of activities and 
interests, rather than taxation of the land itself.

10. Notice of Rights-of-Way (PR 169.010/FR 169.12)

    Comment: One commenter stated that the term ``affecting'' for 
Indian land is ambiguous and could be interpreted in an overly broad 
manner in this section to require notice of actions on non-Indian 
lands.
    Response: The final rule changes ``affecting'' to ``over or 
across'' to clarify that the notice to Indian landowners is triggered 
for rights-of-way actions on or across their Indian land. The final 
rule also replaces the term ``affecting'' and ``on or across'' in other 
sections throughout the rule in response to this comment.
    Comment: Several commenters opposed notifying individual Indian 
landowners by constructive notice. These commenters stated that every 
landowner is entitled to actual notice of actions involving their land, 
no matter how numerous the landowners are. A few commenters stated that 
the Department should provide direct notification by certified letter 
to individual Indian landowners of any determination. Other commenters 
stated that providing notice to every individual owner is too expensive 
and supported constructive notice and one suggested providing no notice 
to landowners.
    Response: The final rule deletes the allowance for ``constructive 
notice'' for grants of rights-of-way and instead requires the 
Department to provide actual notice to the individual Indian landowners 
by mail or, upon the landowner's request, by email. This approach 
ensures that each beneficial

[[Page 72508]]

owner receives written notice of a right-of-way on his or her land. The 
final rule does not require certified letters because of the additional 
expense associated with such letters. The rule provides for 
constructive notice of certain enforcement actions.
    Comment: A commenter suggested that applicants should also be 
permitted to provide constructive notice to individual Indian 
landowners.
    Response: Applicants must directly contact individual Indian 
landowners, and may not use constructive notice, both to ensure that 
the landowners are aware of the potential application for a right-of-
way and to obtain the consent of the individual owners of the requisite 
majority interests.
    Comment: A few commenters suggested allowing the Department to 
notify the applicant and tribe by email.
    Response: The final rule allows the Department to notify the 
applicant and tribe by email of any status updates or determinations 
where the applicant or tribe requests. The final rule also allows 
individual Indian landowners to request to receive their notices by 
email.
    Comment: Several tribes requested that they be notified of rights-
of-way on land within their jurisdiction, even if the tribe is not an 
owner of the land. The commenters note that such notice would allow the 
tribe to better plan for development within the tribe's jurisdiction.
    Response: The final rule incorporates a provision to notify the 
tribe of rights-of-way in its jurisdiction.
    Comment: A few commenters stated that the rules increase the 
Department's ability to make decisions on behalf of tribes and 
individual on actions impacting their lands.
    Response: The rule does not increase the Department's ability to 
make decisions on behalf of Indian landowners without notice. In fact, 
the rule provides that the Department will defer to the tribe's 
decision for tribal land. The rule increases the notice that is 
provided to the tribe to include notice of right-of-way decisions on 
any land within its jurisdiction, and formalizes notice requirements 
for individual Indian landowners.

11. Appeals of Right-of-Way Decisions (PR 169.011/FR 169.13)

    Comment: A few commenters suggested that the proposed rule could be 
construed broadly to allow any Indian landowner to appeal a right-of-
way denial, regardless of whether the landowner owns land over which 
the right-of-way would cross.
    Response: The final rule clarifies that an Indian landowner may 
appeal a denial of a right-of-way under 25 CFR part 2 only if the 
right-of-way would have been over or across land owned by that Indian 
landowner.
    Comment: Several commenters objected to limiting the right of 
appeal to Indian landowners if BIA disapproves a right-of-way 
application. These commenters reasoned that anyone with a ``legitimate 
interest'' should have the right to administrative appeal and the 
applicant is uniquely situated because it invested time and money 
applying for the right-of-way. These commenters also stated that 
denying the applicant the opportunity to appeal administratively would 
limit the applicant to challenging the denial in Federal district 
court, rather than a more cost-effective administrative appeal and 
eliminate the Department's ability to defend on a failure to exhaust 
administrative remedies. One commenter pointed out that allowing only 
the Indian landowner to appeal a denial of a right-of-way application 
puts the burden on the landowner to expend the resources to appeal. A 
few commenters suggested deleting this section and instead referring to 
25 CFR part 2 (Appeals from Administrative Actions).
    Response: The final rule allows both applicants and Indian 
landowners to appeal the Department's decision to deny an initial 
right-of-way application or any other right-of-way grant document. This 
approach is more closely aligned to that taken in the generally 
applicable administrative appeals provisions at 25 CFR part 2, which 
allows an appeal by any person (including corporations, tribes, or 
organizations) whose interests could be adversely affected by a 
decision. While this is different from the approach taken in the 
leasing regulations, it is appropriate with regard to rights-of-way 
because the applicants have a greater interest in a particular location 
for rights-of-way, given that rights-of-way often cross several tracts.
    Comment: A few commenters disagreed with the proposal to limit who 
qualifies as an interested party to only those ``whose own direct 
economic interest is adversely affected by an action or decision.'' 
These commenters note that this definition is narrower than the 
current, generally applicable definition at 25 CFR part 2, which allows 
anyone whose interests may be adversely affected to appeal. One 
commenter stated that if a right-of-way for a power line is subject to 
renewal, anyone who would have been served by the power line should be 
entitled to appeal the Department's denial of the renewal. One 
commenter suggested further limiting who qualifies by adding that the 
person must also be located adjacent to or in close proximity to the 
right-of-way.
    Response: The final rule retains the proposed limitations on who is 
considered an ``interested party'' for the purposes of rights-of-way 
because those without a direct economic interest are only tangentially 
affected and should not have the right to appeal. In response to the 
comment about further limiting who qualifies as an ``interested 
party,'' the final rule adds that an interested party is any person 
whose land is subject to the right-of-way or located adjacent to or in 
close proximity to the right-of-way whose own direct economic interest 
is adversely affected by an action or decision. This addition 
reinforces that the economic interest must be ``direct'' both in cause 
and effect and in proximity.

 C. Subpart B--Obtaining a Right-of-Way

1. Consent

    Comment: One commenter stated that BIA should provide notice to 100 
percent of the Indian landowners and obtain 100 percent consent before 
granting a right-of-way.
    Response: The final rule clarifies that all landowners must be 
notified. Under the proposed and final rule, BIA generally requires the 
applicant to obtain the consent of the Indian landowners to obtain 
access to the land to survey (at PR and FR 169.101(b)) and BIA requires 
record of the requisite landowner consent for a right-of-way (at PR and 
FR 169.107). The applicant must also obtain the consent of the owners 
of a majority of the interests in the tract to obtain the right-of-way. 
Consent of the owners of 100 percent of the interests in a tract is not 
required because the governing statute requires only a majority (25 
U.S.C. 324).
    Comment: One commenter questioned why the applicant must provide 
notice to 100 percent of the landowners, when consent is required of 
only the owners of a majority interest. A commenter also stated that 
the notice and consent provisions were not feasible.
    Response: Each landowner has the right to know of important actions 
potentially occurring on land in which he or she owns an interest. The 
final rule requires notification consistent with the Department's trust 
responsibility to individual Indian landowners.
    Comment: A tribal commenter stated that while the revisions 
modernize the regulations in support of economic development, there are 
challenges in servicing thousands of landowners for

[[Page 72509]]

basic infrastructure needs and the rigors of providing notice and 
obtaining consent can cause considerable delay.
    Response: The Department recognizes that, while providing notice 
and obtaining consent is time- and resource-intensive, as trustee of 
landowners, it must demand that such notice is provided and the 
required level of consent is obtained (as required by statute), 
regardless of whether the right-of-way is for economic development or 
basic infrastructure. The final rule does provide relief for utility 
cooperatives and tribal utilities with regard to compensation and 
bonding, as described below, to encourage rights-of-way to provide 
infrastructure.
    Comment: A few commenters stated that tribal consent should be 
required for a right-of-way over any tribal land; one noted that it has 
been longstanding practice to require tribal consent over any tract in 
which a tribe owns a fractional interest. Others stated that the rule 
should not require tribal consent where the tribe owns only a 
fractional interest because a tribe could unilaterally stop other 
individual Indian landowners who have a majority interest from granting 
the right-of-way. These commenters pointed to statutory authority at 25 
U.S.C. 2218 for granting rights-of-way without tribal consent in tracts 
where the tribe owns less than a majority interest. A few commenters 
stated that there are specific statutes that allow granting and renewal 
of rights-of-way without tribal consent that the Department should rely 
upon to grant rights-of-way without tribal consent.
    Response: The proposed and final rules require tribal consent. See 
PR 169.102(b)(4), FR 169.107(a). Tribal consent for a right-of-way is 
required by statute at 25 U.S.C. 324. Because the regulations rely 
primarily on 25 U.S.C. 323-328, and not 25 U.S.C. 2218 or other 
statutes authorizing the granting of rights-of-way, tribal consent is 
required for any tract in which the tribe owns an interest, regardless 
of whether the tribal interest is less than a majority. Requiring 
tribal consent restores a measure of tribal sovereignty over Indian 
lands and is consistent with principles of tribal self-governance that 
animate modern Federal Indian policy.
    Comment: One commenter suggested clarifying that a tribe may 
require a more formal agreement with the right-of-way applicant than 
just providing consent.
    Response: The final rule clarifies in Sec.  169.107 that the tribe 
may require a more formal agreement with the grantee than just 
providing consent.
    Comment: A commenter stated that rights-of-way even on individually 
owned Indian land should require tribal consultation because the right-
of-way use may interfere with, or otherwise impact, the tribe's zoning 
and land use laws.
    Response: Tribes, as sovereigns, have inherent authority to 
regulate zoning and land use on Indian trust and restricted land within 
their jurisdiction, and the regulations require compliance with tribal 
laws relating to land use. See Sec.  169.9. In addition, the final rule 
clarifies at Sec.  169.102(b)(9) that the applicant must certify 
compliance with the tribe's land use laws.
    Comment: One commenter stated that Sec.  169.107 should state that 
remaindermen are bound by the consent of life tenants as successors in 
interest.
    Response: The provision at FR 169.107(b)(3) does not apply to life 
tenants and remaindermen because remaindermen are not successors in 
interest to life tenants.
    Comment: One commenter stated that applicants should not be 
required to obtain consent from landowners who have not lived on their 
lands in two or more years.
    Response: Landowners have the right to notice and consent 
regardless of whether they live on the land.
    Comment: A commenter asked that the rule clarify what qualifies as 
proof of consent.
    Response: The final rule clarifies that landowners' consent must be 
written.
    Comment: One commenter stated that the rule fails to define how a 
tribe provides consent.
    Response: Tribes provide consent through a tribal authorization in 
accordance with tribal law.
    Comment: A tribal commenter asserted that there may be a joint BIA-
applicant effort to establish a right-of-way, and stated that this 
joint effort is facilitated by provisions allowing BIA to grant the 
right-of-way without individual Indian landowner consent (where the 
owners are ``so numerous that it would be impracticable to obtain 
consent''), and to rely on an appraisal paid for by the applicant.
    Response: The final rule reflects that BIA is the trustee of the 
individual Indian landowners by establishing several factors that BIA 
must consider prior to granting a right-of-way without landowner 
consent and by establishing that third-party appraisals must meet 
certain requirements. See FR 169.107(b) and FR 169.114(c). In all 
circumstances, BIA will examine whether the grant of the right-of-way 
is in the best interest of the Indian landowners, and while BIA will 
defer, to the maximum extent possible, to the Indian landowners' 
determination that the right-of-way is in their best interest, BIA may 
withhold the grant for a compelling reason, in order to protect the 
best interests of the Indian landowners. See FR 169.124.
a. Consent To Survey
    Comment: One tribal commenter stated that the omission of a 
requirement to obtain tribal consent to survey tribal land is 
significant. One commenter noted the difficulty in obtaining consent on 
highly fractionated lands and stated that eliminating the requirement 
to obtain prior BIA approval for survey work will expedite planning for 
projects on these lands.
    Response: The proposed and final rules require landowner consent 
for surveys, including tribal consent for surveys of tribal land at 
Sec.  169.101(b). In certain situations BIA may grant access to the 
land. See Sec.  169.101(c). However, no BIA approval is necessary for 
access to survey.
    Comment: A commenter stated that the rule should allow applicants 
to survey without landowners' permission if landowners are too numerous 
and BIA provides notice.
    Response: The final rule generally states that applicants must 
obtain consent from Indian landowners for access to survey; the 
statutory provisions regarding consent for rights-of-way do not apply 
because the applicant is seeking access that does not rise to the level 
of a legal interest in Indian land. Applicants should work directly 
with Indian landowners for permission to access their land to survey.
b. ``So Numerous''
    Comment: Several commenters opposed the provision allowing BIA to 
issue a right-of-way without the consent of the individual Indian 
owners if the owners would be so numerous that it would be 
impracticable to obtain consent. One commenter stated that the 
provision amounts to ``administrative condemnation.''
    Regarding the thresholds the proposed rule provides on how many 
landowners add up to ``so numerous'' (i.e., 50 to 100 landowners where 
no one landowner owns greater than 10 percent, or 100 landowners), one 
commenter stated that there is no reason to define a threshold. One 
commenter suggested instead of identifying the number of landowners, 
that the rule should provide that it is impracticable to obtain consent 
when the tribe determines the project is vital to the tribe's 
interests. Other commenters stated that the proposed rule sets the

[[Page 72510]]

baseline too low and said it would allow ``steamrolling'' by companies 
over individual trust allotments. A few commenters supported the 
proposed threshold for ``so numerous.'' One noted that the provision 
could be helpful in overcoming the challenges of significant land 
fractionation in the right-of-way context. Another stated that the 
threshold strikes an appropriate balance between the rights of the 
landowner and rights of the applicant. A few commenters stated that the 
proposed thresholds were too high. A few recommended lowering the 
threshold to 20 or 25 to 50 landowners, where none owns an interest 
over 10 percent, or 50 landowners and above otherwise. Another stated 
that the high threshold creates undue hardship and challenges to 
individual Indian landowners and tribes in granting rights-of-way on 
highly fractionated tracts.
    Response: The provision allowing BIA to issue a right-of-way where 
the landowners are ``so numerous that it would be impracticable to 
obtain consent'' is established by statute at 25 U.S.C. 324 and is 
permitted under the current regulations at Sec.  169.3(c)(5). The 
proposed and final rules provide guidance by defining the baseline for 
what is ``so numerous.'' The Department believes that defining the 
baseline promotes transparency, clarity and certainty, and more closely 
meets Congress's intent than a determination that obtaining consent is 
impracticable where the tribe determines it should be. The final rule 
establishes the baseline at 50 owners, as a simplified approach to what 
Congress defined as highly fractionated land in 25 U.S.C. 2218. The 
final rule attempts to balance the burdensome, yet vitally important, 
process of obtaining landowner consent with the Department's duty to 
landowners as established by Congress. As noted above, the final rule 
clarifies that all landowners will receive notice of the proposed 
right-of-way. This notice will also include a request for consent. If 
landowners object to the right-of-way, in response to the notice, the 
Bureau will consider those objections in its review of ``substantial 
injury.'' See the next response.
    Comment: A few commenters suggested clarifying what constitutes 
``substantial injury'' in PR 169.107(b) and in PR 169.108(c). One 
commenter suggested replacing this phrase with a determination of what 
constitutes the Indian landowner's best interest.
    Response: The rule clarifies in both sections that the Department 
will look at the term, amount of acreage, disturbance to the land, type 
of activity, potential for environmental or safety impacts, and 
objections by the landowners in determining whether the grant will 
cause ``substantial injury'' to the land or any landowner. The rule 
does not replace ``no substantial injury'' with a best interest 
determination because ``no substantial injury'' is statutorily 
required. See FR 169.107(b) and in FR 169.108(c).
    Comment: A commenter stated that the section should require BIA to 
make an effort to obtain owner consent and wait a specified period of 
time for owner response, and only then make the factual finding that it 
is impracticable to obtain consent. One stated that allottees should be 
entitled to 60 days or longer after receipt of a notice to object, 
another stated that 30 days is appropriate. A few commenters noted that 
the provision allowing BIA to issue a right-of-way without the consent 
of the individual Indian owners where the owners would be so numerous 
that it would be impracticable to obtain consent requires BIA to 
provide notice of the intent to grant the right-of-way to all owners at 
least 30 days prior to the date of the grant, using the procedures in 
PR 169.010 (FR 169.12).
    Response: The final rule now requires that the notice of intent be 
sent 60 days in advance and allow landowners 30 days to object to the 
grant. The notice must be sent by mail. Constructive notice is not 
adequate, even though constructive notice is less expensive, because 
each landowner is entitled to the opportunity to object to the future 
grant. See FR 169.107(b)(1)(ii).
    Comment: Another owner suggested the rule clarify that applicants 
may include in the initial notification that BIA intends to issue a 
grant within 30 days if consent is not obtained.
    Response: An applicant may, in its initial notice and request for 
consent, state that BIA may grant the right-of-way under FR 169.107(b) 
if consent is not obtained; however, BIA must send its own, separate 
notice if it determines that a grant without consent is appropriate 
under FR 169.107(b). In that case, BIA will send a notice of intent to 
grant the right of way 30 days prior to the grant.
    Comment: One commenter stated that requiring BIA to provide a 30-
day notice to all landowners will delay grant of the right-of-way 
beyond the specified 60-day period.
    Response: The final rule clarifies that if the applicant is relying 
on Sec.  169.107(b) in lieu of providing a record of consent, it must 
include in its application a request for a grant without consent. See 
FR 169.102(b)(5). This allows BIA 30 days to review before providing 
the 30-day notice.
    Comment: One commenter stated that the rule should require the 
applicant to provide the right-of-way application and conditions and 
terms to the landowners, allow for the landowners' review for several 
days, and then provide proof that it was given to the landowners.
    Response: The process suggested by the commenter is essentially 
what is required to obtain landowner consent. The rule requires proof 
of consent, but it is each individual's responsibility to ask for time 
to review, if needed, and review the document to determine whether to 
provide consent.
    Comment: A few commenters stated that the rule should require the 
Department to grant a right-of-way if the necessary consents are 
obtained or if the conditions for a grant without consent (where 
landowners are ``so numerous'') are met.
    Response: The rule keeps intact the Secretary's discretion to grant 
a right-of-way, rather than making it mandatory where consent is 
obtained because there are other factors (compensation, e.g.) that 
affect the Secretary's decision to grant or not.
c. Non-Consenting Tribe (PR 169.107(d))
    Comment: Several commenters opposed the language in PR 169.107(d) 
stating that a right-of-way will not bind a non-consenting tribe. These 
commenters stated that the provision is contrary to other provisions of 
the rule and undermines tribal self-governments.
    Response: The final rule removes paragraph (d) because tribal 
consent for a right-of-way is always required under 25 U.S.C. 324.
    Comment: A telephone authority commenter stated that further 
clarification is required as to whether BIA gives permission for access 
or whether the allottee himself can give permission for a right-of-way.
    Response: In all cases, the Indian landowner may consent to access 
or grant a right-of-way across their land; however, notice to 
landowners is always required and landowners may seek the assistance of 
BIA. In certain limited circumstances, BIA may consent on behalf of a 
landowner, or grant a right-of-way without landowner consent
d. Who Is Authorized To Consent (PR 169.108/FR 169.108)
    Comment: A commenter suggested restricting PR 169.108 to allow BIA 
consent only on behalf of the owners of minority interests.
    Response: The final rule does not restrict BIA consent to minority 
interests because this authority, exercised on a landowner-by-landowner 
basis, is separate and distinct from the

[[Page 72511]]

authority of BIA in FR 169.107(b) to grant a right-of-way where the 
landowners are so numerous.
    Comment: A commenter suggested adding a provision allowing BIA to 
consent on behalf of individual owners following a 90-day notice, as 
provided for in the leasing regulations.
    Response: The final rule does not add the requested provision 
because the provision in the leasing regulations is based in statutory 
authority applicable to leasing, rather than rights-of-way.
    Comment: One commenter requested an addition to allow tribes to 
consent on behalf of Indian landowners.
    Response: The final rule does not add the requested provision 
because the Department has not identified any legal authority for such 
a provision.
    Comment: A commenter stated that an attorney should never be 
authorized to consent on behalf of a landowner unless the attorney is 
operating under a power of attorney document.
    Response: The proposed and final rules state that the attorney must 
have been retained by the landowner ``for this purpose,'' meaning the 
landowner retained the attorney to provide consent.
    Comment: One commenter stated that PR 169.108(b)(5)(iii) could be 
interpreted to require specific language on providing consent to a 
right-of-way in the power of attorney document, and suggested the rule 
clarify that language such as ``generally convey or encumber interests 
in trust land'' or similar language would be acceptable.
    Response: The final rule adds this clarification.
    Comment: A few commenters suggested clarifying that the provisions 
in PR 169.108 apply to ``individual Indian landowners.''
    Response: The final rule clarifies these provisions.
    Comment: One commenter stated that PR 169.107 and PR 169.108 allow 
BIA broad authority to assume control of an individual Indian 
landowner's property interests as they pertain to rights-of-way and 
forego providing notice to that person.
    Response: The final rule implements statutory authority to consent 
on behalf of landowners, while providing limitations on when BIA may 
exercise that authority. The final rule also establishes that BIA will 
send notice to all individual Indian landowners of a right-of-way on 
their land.
    Comment: One commenter requested detail on what a ``reasonable 
attempt to locate'' in PR 169.108(c)(2) means. Another suggested the 
whereabouts of any landowner that does not respond to constructive 
notice within 60 days should be considered unknown.
    Response: BIA will determine whether efforts qualify as a 
``reasonable attempt to locate'' an individual Indian landowner as part 
of its determination as to whether the landowner's whereabouts are 
unknown. These determinations are made on a case-by-case basis.
    Comment: A commenter stated that BIA should not have the right to 
consent on behalf of adults under a legal disability because the 
individual's guardian should have responsibility for consent.
    Response: The provision allowing BIA the right to consent on behalf 
of individuals under a legal disability applies only where the person 
does not have a legal guardian. See 25 CFR 115.002, definition of 
``legal disability.''
    Comment: A commenter stated that, while the rule supports the 
autonomy of landowners, some landowners such as the elderly, disabled, 
and emancipated minors, may require additional assistance beyond mere 
consent.
    Response: In response to this comment, the final rule adds a new 
provision, at FR 169.106(c), that specifies that BIA will assist 
individual Indian landowners, upon their request, in negotiations with 
the applicant for a right-of-way.
    Comment: A commenter opposed BIA consenting on behalf of 
landowners, stating that the landowners should be entitled to make the 
decision but BIA has an obligation to ensure that the landowner's 
decision is informed.
    Response: Overall, the rule implements statutory authority for BIA 
to grant a right-of-way with the consent of the landowners of a 
majority of the interests in a tract (i.e., without the consent of the 
landowners of a minority of the interests in the tract). See FR 
169.107(b). This rule also allows BIA to consent to a right-of-way on 
behalf of individual Indian landowners only in limited circumstances, 
such as where an individual Indian landowner is under a legal 
disability. See FR 169.108(c). BIA may also grant a right-of-way 
without consent if the landowners are so numerous, and certain 
procedures are followed. See FR 169.107(b). These requirements all 
exist in the current rule, and are carried forward in the final rule.

2. Compensation

    Comment: Many commenters asserted that the rule should address the 
upper bounds of what tribes and individual Indian landowners can demand 
for compensation for a right-of-way. Several commenters stated their 
belief that compensation for rights-of-way on Indian land should be 
limited to fair market value, and no more. A few commenters requested 
that the rule require BIA to grant the right-of-way for an applicant 
that agrees to pay fair market value. Some commenters wanted 
compensation schedules, similar to those used for Bureau of Land 
Management (BLM) and U.S. Forest Service lands.
    Response: The statutory authority merely states that the Secretary 
must determine the compensation to be just. Indian landowners have the 
right to demand as much compensation as they deem appropriate, just as 
other private landowners do. As such, neither the proposed nor final 
rule limit the Indian landowners to fair market value, through a 
compensation schedule or otherwise. See the discussion below.
    Comment: One commenter stated that the rule should require that the 
right-of-way document state the amount of compensation.
    Response: The final rule does not add this as a requirement 
because, while the grant will normally reflect that the landowners 
received consideration, there may be circumstances in which it is not 
appropriate for the grant document to state the amount.
a. Compensation--Electric Cooperatives and Utilities
    Comment: Several commenters, in New Mexico, especially, stated that 
the rule changes will have a significant impact by increasing already 
high easement costs, especially for those who receive their utilities 
from nonprofit electric cooperatives. Several electric cooperatives and 
others (Eastern Navajo Land Commission) requested that the requirement 
for compensation be waived for all rights-of-way for public 
infrastructure projects that serve the tribe or tribal members, 
including service lines. One suggested that nominal compensation should 
be approved because the cooperatives have a ``special relationship'' 
under PR 169.110(b)(2)(iii). These commenters reason that:
     Through the act of joining a cooperative, the member 
typically agrees to provide access for the cooperative to build the 
necessary infrastructure at no cost; and
     Cooperatives have no ability to absorb costs, but must 
pass them directly to consumers, such that higher compensation costs 
will translate to higher electricity costs for members.

These commenters further stated that providing an exemption or 
otherwise limiting the compensation electric cooperatives must pay 
would ensure that the cooperatives can afford to continue providing 
service to

[[Page 72512]]

cooperative members, including tribal members, and ensure that members 
are provided with electric power at an affordable price.
    One tribal commenter stated that exempting utility companies from 
compensation would conflict with tribal self-determination and self-
governance.
    Public service commenters stated that they have an obligation to 
customers to ensure rates are fair and reasonable to all, that using 
projected income as the basis for valuation is cumbersome and 
unreasonable, and that the regulations should instead provide a certain 
and fair approach for all parties.
    One commenter stated that rights-of-way that serve tribal people 
should be different from those that serve non-tribal people and that 
right-of-way costs should be minimized to encourage the sustainability 
and expansion of telecommunications services to tribes.
    Response: The final rule provides for more flexibility in 
compensation for rights-of-way over and across individually owned 
Indian land. Specifically, the rule provides an exemption from the 
requirement to pay compensation on individually owned land if all the 
landowners agree, but does not provide the exemption for tribal land. 
The rule does not provide an exemption for compensation to tribes, but 
instead defers to the tribe if the tribe is willing to accept nominal 
compensation, no compensation, or alternative compensation. The rule 
also adds a specific exemption for utility cooperatives and tribal 
utilities on individually owned Indian land to encourage the provision 
of utility services on individually owned Indian land. Tribes may also 
allow for such an exemption on tribal land, on a case-by-case basis, 
but are not required to do so. See FR 169.112(b)(3)(iii).
b. Compensation/Fair Market Value for Rights-of-Way (PR 169.109/FR 
169.110 and PR 169.111/FR 169.112)
    Comment: Several commenters stated that the regulations should 
limit compensation to no more than fair market value, as determined by 
an appraisal or other valuation, to prevent ``unrealistic'' charges. 
One commenter stated that the proposed rule's approach of allowing the 
tribe to determine compensation and waive valuation is ``huge to 
industry.'' Some of these commenters stated that the rule gives 
``unfettered, lopsided bargaining power'' to tribes. They state that 
this is contrary to Federal law because the 1948 Act requires the 
Secretary to determine just compensation and that it could not have 
been Congress's intent to allow tribes to demand compensation beyond 
``just compensation.'' One suggested imposing an upper limit on 
compensation of no more than 110 percent of the fair market value. 
Senator Tom Udall from New Mexico provided a petition stating that the 
absence of an upper limit for tribal governments to charge has resulted 
in more than $36M in easement fees for Jemez Mountains Electric 
Cooperative, Inc. (JMEC) members, and that both tribal and non-tribal 
JMEC members will experience more than a 40 percent increase in their 
electric bills.
    Several commenters point to potential negative consequences of 
allowing tribes to negotiate for compensation beyond fair market value 
such as increased costs for customers and discouragement of future 
development on tribal lands. According to these commenters, it should 
be BIA's role to ensure the certainty and reasonableness of 
compensation.
    Several tribal commenters supported the proposed rule's provisions 
that require BIA to defer to tribally negotiated compensation amounts 
and valuation waivers. These commenters stated that these provisions 
are important to the sovereignty of tribal nations and their self-
determination, streamline unnecessary appraisal processes, and 
recognize that the tribe consenting to the right-of-way is uniquely 
situated to assess the value of the compensation it is receiving. Some 
of these commenters stated that providing for non-monetary or 
alternative types of compensation, such as in-kind consideration, 
enables tribes to craft unique compensation agreements, and that 
allowing the form of compensation to change at different stages of 
development helps tribes achieve maximum benefits over the life of the 
grant, allowing tribes to negotiate amounts that serve best interests. 
As one tribal commenter pointed out, there may be circumstances in 
which a tribe values some other form of consideration more than fair 
market value, and that the rule's provisions respect tribes' ability to 
make those decisions.
    Response: Consistent with 25 U.S.C. 325, the United States' general 
trust relationship with Indian tribes and individual Indians, and 
deference to tribal sovereignty, the final rule requires that the 
compensation granted to Indian landowners is just. The current 
regulations, at Sec.  169.12, state that compensation is ``not limited 
to'' the fair market value, allowing tribes to negotiate for higher 
compensation. The final rule provides that BIA will defer to the 
tribe's determination that compensation is in its best interest. Tribes 
have the right, through self-governance and self-determination, to 
charge more than fair market value for their land. History has taught 
us that some tribal values are not readily measured or estimated by 
market valuations. BIA will defer to the tribe's negotiated 
compensation amount, which may be an amount mutually agreed to with the 
applicant. Not only is it not BIA's role to ensure that the 
compensation is predictable and reasonable for the applicant, BIA does 
not have the legal authority to limit the amount that Indian landowners 
charge for a right-of-way.
    The statute requires that the right-of-way be made with the payment 
of ``such compensation as the Secretary of the Interior shall determine 
to be just.'' 25 U.S.C. 325. This statute was enacted for the benefit 
of Indians, and as such, Interior is interpreting this language in 
favor of the Indians, to allow the Secretary to defer to tribes to 
determine that compensation beyond fair market value is ``just.'' Ramah 
Navajo School Board v. Bureau of Revenue, 458 U.S. 832, 846 (1982) 
(``We have consistently admonished that Federal statutes and 
regulations relating to tribes and tribal activities must be construed 
generously in order to comport with . . . traditional notions of 
[Indian] sovereignty and with the Federal policy of encouraging tribal 
independence.'')
    Comment: A tribal commenter stated that the rule should allow 
tribal governments to enter into operating agreements with utility 
companies to cover a ``market area'' of the company for a cooperative 
work relationship.
    Response: Tribal governments are free to enter into agreements with 
utility service providers.
    Comment: One commenter, the Village of Hobart, Wisconsin, stated 
that the municipality does not impose many of these requirements on 
tribal governments for rights-of-way across Village land, and suggested 
that the rule should add a ``fair and equitable process for co-located 
governments to obtain right-of-way easements'' without complications.
    Response: Municipalities and others who are co-located with tribal 
governments are free to negotiate with those tribal governments on 
compensation for rights-of-way on tribally owned land.
    Comment: A few commenters suggested that the rule either require 
compensation based on an objective valuation methodology, provide a 
procedure for the applicant to appeal to BIA for an administrative 
adjudication of value if the applicant and tribe cannot agree, or 
obligate the tribe to accept the fair market value determined

[[Page 72513]]

by the valuation if the applicant and tribe cannot agree.
    Response: Tribal law may address situations in which the tribe and 
applicant cannot agree. BIA may not grant the right-of-way without 
tribal consent. Where individual Indian landowners and the applicant 
cannot agree, existing mechanisms can address the situation.
    Comment: Several commenters opposed the proposed change to the 
current compensation standard (``fair market value of the rights 
granted plus severance damages, if any, to the remaining estate'') to a 
compensation standard that includes market value and may include 
additional fees, such as throughput fees, franchise fees, avoidance 
value, bonuses, or other factors. According to the commenters, this may 
create unwarranted expectations for individual Indian landowners, which 
could lead to a failure of landowners to agree with applicants on 
rights-of-way and could then lead to an increase in applicants' use of 
eminent domain to acquire the right-of-way. The commenters note that 
this would be directly contrary to the goal of streamlining the right-
of-way process. Others said all of these concepts are already 
incorporated in ``market value'' and identifying them individually 
suggests they should be added above fair market value. Others said that 
these hypothetical valuation methodologies are unfitting for land 
valuations.
    Response: The proposed and final rules clarify that Indian 
landowners may take into account additional fees when negotiating 
compensation. This rule does not address or impact the availability (or 
unavailability) of eminent domain. The Department does not agree that 
providing individual Indian landowners with a list of additional fees 
that may be considered in negotiating compensation, beyond fair market 
value, will lead to ``unwarranted expectations'' and ultimately 
increase the use of eminent domain; rather it helps ensure parity in 
negotiations between landowners and applicants, providing better 
information to improve the functioning of the market.
c. Different Compensation Approaches for Tribal Land Than for 
Individually Owned Indian Land
    Comment: Several commenters advocated for requiring the same 
compensation on tribal land as on individually owned Indian land. A few 
commenters stated that ``tribal land'' should not include land in which 
the tribe owns a fractional interest, for the purposes of PR 169.109, 
because otherwise, different compensation amounts could be required for 
different interests in the same tract. One commenter noted that this 
question is especially pertinent because there will be increased 
fractional tracts owned by tribes as a result of the Land Buy Back 
Program for Tribal Nations under the settlement in Cobell v. Salazar. A 
commenter stated that requiring tribes to accept the same terms of 
service that apply to the non-tribal areas does not deprive them of 
sovereign rights. Several commenters suggested the rule should allow 
BIA to defer to individual Indian landowners' determination completely, 
just as the rule allows BIA to defer to tribes' determinations. Another 
commenter stated that BIA oversight is necessary to prevent an Indian 
landowner from holding hostage an entity seeking to make improvements 
by demanding an unreasonable sum.
    Response: Consistent with 25 U.S.C. 324 and 325 and the United 
States' general trust relationship with Indian tribes and individual 
Indians, the final rule treats tribal and individual Indian landowners 
differently, providing more deference to tribal landowners in the 
approval process and in the enforcement process. It is consistent with 
BIA's trust responsibility to allow for different compensation amounts, 
as long as both the tribe and the individual Indian landowner receive 
compensation that is just. It is possible that different owners in the 
same tract could negotiate different compensation amounts; this is 
within the landowners' rights and is possible even under the current 
rule. Requiring tribes to accept the same terms that apply to 
individual Indian landowners would undermine tribal self-determination 
and self-governance.
    Comment: A commenter stated that the proposed rule is paternalistic 
in that it would allow BIA to require fair market value even if all the 
landowners agree to waive it, if BIA determines it is in their best 
interest.
    Response: Even if all Indian landowners agree to waive fair market 
value, BIA will evaluate rights-of-way applications to determine 
whether the waiver is in their best interest in accordance with 25 
U.S.C. 324. Consistent with the statute and the United States' general 
trust relationship with Indian tribes and individual Indians, BIA will 
defer to the maximum extent possible to the landowners' determination 
that the right-of-way, including any waiver, is in their best interest. 
See FR 169.124(b).
    Comment: One commenter suggested only the owners of a majority 
interest should be required to waive both valuation and just 
compensation, and questioned why the consent of all landowners is 
necessary.
    Response: We have determined that all non-consenting landowners are 
entitled to fair market value, as our trust responsibility is to all 
landowners, not just to those who have consented to the right-of-way.
    Comment: Several tribal commenters stated that PR 169.110 should 
specify that BIA may approve ``alternative compensation'' for 
individually owned land.
    Response: Alternative compensation is provided for in FR 169.118.
d. Valuation (PR 169.111/FR 169.114)
    Comment: A few tribal commenters stated their support for not 
requiring a valuation if the tribe submits a tribal authorization, and 
deferring to the tribe's decision as to whether to use the valuation or 
negotiate another amount. One commenter suggested allowing the 
applicant to request a valuation, even where the tribe does not.
    Response: The Department's trust responsibility is to the Indian 
landowners; for this reason, BIA will obtain a valuation only at the 
tribe's request.
    Comment: One commenter stated that BIA has not traditionally 
required the applicant to obtain the valuation, but proposed Sec.  
169.109 does.
    Response: Final Sec.  169.114 applies only if the tribe does not 
submit a tribal authorization waiving the valuation and does not 
request a valuation in writing. Under these circumstances, a valuation 
must be completed to establish fair market value. The current 
regulations require that a valuation be submitted with the right-of-way 
application. In practice, BIA or the applicant may complete the 
application. Final Sec.  169.110(c) clarifies that it does not require 
the applicant to provide the valuation, but simply requires that the 
applicant pay fair market value based on a valuation.
    Comment: A few commenters requested that the rule require BIA to 
prepare the valuations within 30 days of receiving the request.
    Response: The Office of the Special Trustee for American Indians 
(OST), rather than BIA, prepares valuations. OST is governed by a 
separate set of regulations and policies.
    Comment: A few commenters suggested that the applicant be required 
to deposit funds to be used for a valuation or otherwise pay for the 
valuation.
    Response: It is not feasible at this time for the Department to 
maintain accounts for applicants' payment for valuations.

[[Page 72514]]

    Comment: Several tribal commenters pointed out that Indian land is 
often undervalued or appraised at a low market value due to rural 
location, undeveloped condition, and the lack of a ``real market'' for 
land in Indian country. These commenters suggested accounting in the 
valuation of the land with the right-of-way, assuming the right-of-way 
enhances or will enhance the land's value. One commenter pointed out 
that even land that has been subject to a right-of-way for a pipeline 
crossing is appraised as though the use has not been present, imposing 
an artificial restraint on the compensation owed to landowners.
    Other commenters stated that it is a fundamental precept of 
landowner compensation regimes that fair market value measures the 
economic impact of the right-of-way on the affected land, rather than 
compensating for economic benefit enjoyed by the right-of-way grantee. 
One commenter stated that market value should be based on the value of 
the land that is the subject of the transaction, and not on speculation 
regarding the potential future value of the pipeline.
    Likewise, tribal commenters supported listing potential adjustments 
to market value, such as a percentage of gross income, and additional 
fees, such as throughput fees, severance damages, franchise fees, 
avoidance value, bonuses, or other factors.
    Response: The final rule provides flexibility in two ways: (1) By 
allowing for any type of valuation of fair market value, as long as it 
meets Uniform Standards of Professional Appraisal Practice (USPAP) 
standards and Departmental policies; and (2) by listing factors that 
Indian landowners may wish to consider in negotiating for compensation 
either by ensuring they are included in the estimate of fair market 
value or by requesting that they be added. See FR 169.114(c). 
Identifying them individually does not necessarily suggest that they 
``should'' be added above fair market value, but instead provides 
Indian landowners, our trust beneficiaries, with examples for types of 
fees might be included in compensation. Providing information to 
landowners improves the fairness of any negotiations.
    Comment: Several commenters requested changing ``fair market value 
before any adjustments'' to simply ``fair market value'' in PR 169.110, 
and deleting the provisions regarding adjustments ``based on a fixed 
amount, a percentage of the projected income, or some other method'' 
based on their concern that there is no legal standard on BIA's 
calculation of payments owed.
    Response: Final Sec.  169.112(a) deletes reference to 
``adjustments'' but includes the list of examples of fees that 
landowners may wish to seek in compensation negotiations. This 
provision also clarifies that compensation may be based on a fixed 
amount or another method. These provisions provide flexibility to 
negotiate for compensation and a formula for reaching that amount.
    Comment: A few commenters suggested the valuation should be based 
on the amount of land encumbered and the extent of encumbrance or 
acreage disturbed.
    Response: The amount of land encumbered, extent of the encumbrance, 
and acreage disturbed are all factors that the landowners may consider 
in negotiating compensation.
e. Who Conducts Valuation
    Comment: Several tribal commenters opposed the proposal to allow 
applicants to hire their own appraisers because of concerns that the 
appraisers would have a conflict of interest and would undervalue the 
property. Some suggested requiring a separate, independent appraisal, 
landowner approval of the appraisal, or landowners' own appraisal. One 
commenter expressed concern that the rule could allow an applicant to 
provide a valuation if BIA fails to provide one, but that doing so 
could undermine the landowners' negotiations.
    Response: The rule requires that the valuation comply with USPAP 
and Departmental policies to ensure that the valuation meets 
independent quality standards. For example, the Departmental policies 
on valuations require that the person conducting the valuation meet 
certain qualifications and requirements. See 602 DM 1.6. Additionally, 
Departmental policies require anyone who wishes to rely on a third-
party appraisal to first consult with the Department (in this case, 
BIA, who will refer the person to the OST Office of Valuation 
Services), to select a qualified certified general appraiser, and that 
OVS make all the appraisal assignment instructions. 602 DM 1.7C. BIA 
must approve the appraisal.
    Comment: One tribal commenter stated that if the tribe asks BIA to 
determine fair market value, the tribe should have the opportunity to 
choose the appraiser and the valuation method.
    Response: The tribe is not bound by the valuation conducted by BIA 
and may choose to obtain its own valuation through a different method.
    Comment: A few commenters stated that valuations from other Federal 
agencies should not be accepted because they could result in an 
entirely different valuation than would be found by BIA, BIA would not 
know whether the appraisal is adequate unless it understands the 
context in which the valuation was conducted, and BIA would possess 
broad and unchecked discretion in approving or rejecting.
    Response: BIA will continue to review valuations conducted by other 
Federal agencies before approving their use to ensure sure the 
valuations are adequate for the rights-of-way context. If parties 
disagree with BIA's reliance on a valuation, they may appeal a decision 
to grant a right-of-way under 25 CFR part 2.
f. Method of Valuation
    Comment: Several commenters stated that the rule should limit 
valuation methods to standard practices, such as USPAP, to provide a 
consistent methodology that would better streamline the rule. A few 
commenters stated that the proposal to allow BIA to rely on any ``other 
appropriate valuation method'' provides BIA too much discretion, and is 
too ambiguous and broad to provide guidance or the ability to challenge 
BIA's determination of ``market value.''
    Response: The rule allows for market analyses and other valuation 
methods in order to provide flexibility to the parties to obtain a 
valuation as quickly as possible and to employ the method they deem 
appropriate for their negotiations. The rule balances this flexibility 
with requirements that the chosen method must comply with USPAP and 
Departmental policies to ensure that the valuation meets independent 
quality standards and that the person conducting the valuation meet 
certain qualifications and requirements. See, e.g., 602 DM 1.6.
    Comment: A commenter suggested the rule should require BIA to 
disclose to the applicant the valuation method that was used to 
determine fair market value. Another commenter suggested the rule 
should require BIA to provide the landowners with a copy of the 
valuation method within 10 days of receipt of a written request.
    Response: BIA will notify the applicant of the fair market value 
established by the valuation and will provide the landowner with the 
valuation for the purpose of assisting in negotiations.
g. Alternative Compensation
    Comment: A few commenters stated that allowing for alternative 
valuation methodologies inserts uncertainty into the right-of-way 
process. One noted that this approach could result in each party

[[Page 72515]]

completing and submitting valuations that are vastly different, but 
equally valid under the proposed rule. These commenters advocated for 
requiring a consistent approach for valuations to determine fair market 
value to streamline the process, and suggested revisions to state that 
BIA will only use a valuation in accordance with USPAP standards.
    Response: The final rule allows for the use of alternative 
valuation methods as long as they have been prepared in accordance with 
USPAP (or a valuation method developed by the Secretary under 25 U.S.C. 
2214) and complies with Departmental policies regarding appraisals, or 
has been prepared by another Federal agency. See Sec.  169.114(c). This 
provision allows Indian landowners more flexibility in negotiating for 
compensation, while still requiring that the valuation meet USPAP 
standards and Departmental policies.
    Comment: One commenter stated that no method of valuation for 
reservation-wide or systemic use should be used until the Department 
provides prior actual notice to landowners, publication of notice in 
the Federal Register, and in media outlets.
    Response: The rule allows for reservation-wide valuations if the 
valuations meet the requirements of Sec.  169.114(c). If landowners 
disagree with this type of valuation or any valuation that BIA relies 
upon, the landowners may appeal BIA's decision on the right-of-way 
under 25 CFR part 2.
h. Compensation for Renewals
    Comment: Some commenters stated that the rule should impose 
compensation limits for renewals of rights-of-way. The commenters state 
that rising renewal charges burden all utility customers, including 
reservation customers, and bear no relation to property values. One 
commenter stated that in its experience over the last 10 years, its 
rights-of-way have been assessed based on the appraised fair market 
value of the Indian lands over which the rights-of-way are located, 
rather than the value of the right-of-way itself, and that the assessed 
renewal fees were 10 times the appraised fair market value. Several 
electric cooperative commenters expressed concern that they will have 
to renew rights-of-way and will have to pay amounts in excess of fair 
market value, creating a conflict for members off the reservation.
    Response: The terms of the existing right-of-way govern renewals. 
The new rule encourages parties negotiating for a right-of-way to also 
negotiate terms for a renewal.

3. Payment (PR 169.112/FR 169.115)

    Comment: A few energy company commenters advocated for lengthening 
the time frame for requiring payment of the right-of-way from 10 days 
after the right-of-way is granted to 30 days. These commenters stated 
that more time may be needed to process significant payments. Other 
commenters suggested using the grantee's receipt of the grant as the 
starting point for the time period because the grantee may not even 
know the right-of-way has been granted before the 10 days expires. A 
few commenters stated that payment should be made at the time the 
application is filed. Another stated that payments should not be made 
until the right-of-way is determined to be valid.
    Response: The final rule adds that the grant may establish a 
different payment schedule; this allows the parties to negotiate for a 
payment schedule that works for their circumstances. See Sec.  
169.115(a). This approach retains the default, to strike a balance 
between those wanting payment at the time the application is filed and 
those wanting a longer period of time, to ensure prompt payment where a 
different payment schedule is not negotiated. Rights-of-way go into 
effect, and are valid, with the BIA's grant. The final rule changes the 
default due date to be the date of the grant because BIA is bound by 
the 60-day deadline for issuing a decision on the right-of-way. Once 
the applicant receives confirmation that BIA has received a complete 
application, the grantee will have up to 60 days to provide payment.
    Comment: Several commented on payment structures. A tribal 
commenter recommended allowing each landowner to select how he or she 
wishes to receive compensation, whether in lump sum or annual payments 
or another payment structure. The commenter notes that BIA currently 
requires all landowners to be paid in the same manner, and that some 
landowners may prefer different structures. Another tribal commenter 
stated that the rules will add complexity by allowing different payment 
structures, adjustments, etc.
    Response: The rule adds flexibility by allowing for different 
payment structures, to allow the parties to use the structure that best 
meets their needs; however, the rule does not allow different payment 
structures for different landowner interests in the same tract because 
determining and tracking payments would be overly burdensome.
    Comment: One commenter opposed the provision prohibiting payments 
more often than quarterly, stating that tribes with direct pay should 
be able to set any payment schedule without such a restriction. A 
commenter stated that an applicant should not be allowed to pay 
quarterly or even yearly, and rights-of-way should not be treated the 
same as payments for leases.
    Response: The final rule retains the possibility for quarterly or 
yearly payments, to allow landowners the flexibility to negotiate for a 
frequency of payments that meets their needs. The final rule, at Sec.  
169.115(b), limits the frequency of payments to no more frequent than 
quarterly, but only if the payments are made to BIA. This allows 
payments made by direct pay to be made more frequently, if appropriate.

4. Direct Pay (PR 169.113/FR 169.116)

    Comment: Several energy companies and electric cooperatives 
objected to allowing for direct pay, saying that it shifts BIA's 
responsibility to the grantees, and that it may be difficult in 
practice, could be burdensome to grantees, would slow the payment 
process, and would be less secure. Two tribal commenters also expressed 
concern with allowing direct payments to landowners and stated they 
should go through BIA for better tracking. A few other commenters also 
expressed concern that direct pay would expose the landowner's revenue 
to liens and garnishments. One commenter stated that it would require 
grantees to issue IRS forms to all landowners. One commenter stated 
that owners throughout the life of the right-of-way may be different, 
so direct pay authorization should be renewed every five years.
    Some commenters supported direct pay and stated that the grantee 
should have the option of paying BIA instead of directly paying the 
landowners. A few stated there should be no limit on the number of 
owners for direct pay and that it should be an option for each 
landowner. One commenter suggested direct pay should be available to 
tribes only.
    A few commenters asked why the accounts must be ``encumbered.''
    Response: The final rule corrects a typographical error in the 
proposed rule, to clarify that direct pay is available only if the 
account is ``unencumbered'' rather than ``encumbered.'' Otherwise, the 
final rule retains the provisions for direct pay, making it available 
to both tribes and individual Indian landowners. The final rule 
establishes that Indian tribes may choose direct pay, but direct pay is

[[Page 72516]]

available to individual Indian landowners only under limited 
circumstances, such as circumstances in which there are 10 or fewer 
owners. This approach promotes self-determination and self-governance 
for tribes and allows some flexibility for individual Indian 
landowners, while minimizing the burden on grantees.
    Comment: BIA should be required to assist landowners in the event 
of non-payment beyond the issuance of a letter, to better fulfill 
fiduciary duties.
    Response: If the grantee does not cure the violation in time, 
following the notice of violation, BIA may take the enforcement actions 
in FR 169.405.

5. Method of Payment (PR 169.114/FR 169.117)

    Comment: A few commenters suggested clarifying that this section 
applies only where payments are made to BIA, but that tribes may 
negotiate other methods of payment.
    Response: The final rule clarifies that Sec.  169.117 applies only 
where payments are made to BIA and adds that, if payments are made by 
direct pay, the grant will specify the method.

6. Non-Monetary and Varying Types of Compensation (PR 169.115/FR 
169.118)

    Comment: Several electric cooperatives requested that the service 
they provide be considered the compensation.
    Response: The final rule adds an exemption from compensation 
requirements for utility cooperatives, establishing a presumption that 
the service or infrastructure the cooperatives provide to their members 
is ``just'' compensation if it directly benefits the Indian land.
    Comment: A tribal commenter supported the provisions allowing for 
non-monetary or other types of compensation, stating that the 
provisions are important to allow landowners to negotiate. Some 
commenters opposed allowing alternative forms of compensation because, 
they claim, it unnecessarily complicates negotiations and payment 
calculations, and suggests forms that are not appropriate in 
competitive right-of-way markets. One commenter stated that in-kind 
compensation should not be allowed for individual landowners because of 
the potential for abuse.
    Response: These provisions, as well as other compensation 
provisions, are intended to increase flexibility for Indian landowners 
to negotiate for terms that best work for their needs.
    Comment: A few tribal commenters suggested requiring a tribal 
authorization, rather than a signed certification, to establish that it 
will accept varying types of compensation at PR 169.115.
    Response: Tribes may choose to provide a tribal authorization 
(meaning a tribal resolution or other document approved by the tribal 
governing body), but BIA will require only a certification (meaning a 
statement signed by the appropriate tribal official or officials). This 
is intended to reduce any delays that may be associated with passing a 
tribal authorization.
    Comment: A few tribal commenters requested clarifying that the 
types of compensation are examples, rather than a limited list. The 
commenter also suggested adding ``payments adjusted by a fixed amount 
and payments tied to an index'' to the list of varying types of 
compensation available at specific stages of the right-of-way. Another 
commenter requested clarifying whether access to broadband services 
would be considered in-kind compensation.
    Response: The final rule states that the types of compensation 
include, but are not limited to, the examples listed. The examples 
listed are not exhaustive and may include payments adjusted by a fixed 
amount and payments tied to an index. In-kind compensation may include 
the provision of broadband services.
    Comment: A commenter requested simplifying this section to read 
simply that all forms of compensation and varying types of compensation 
are allowable.
    Response: While the regulation would be simpler in stating that all 
forms of compensation and varying types are allowable, the final rule 
continues to provide examples to assist Indian landowners in 
identifying potential options.

7. Issuance of Invoices (PR 169.116/FR 169.119)

    Comment: One commenter stated that BIA should be required to issue 
invoices.
    Response: BIA may issue invoices at the request of Indian 
landowners, but the payment is due at the times specified in the grant, 
whether there is an invoice or not.

8. Compensation Reviews or Adjustments (PR 169.117/FR 169.111 and FR 
169.113)

    Comment: One commenter stated that the process for review and 
adjustment of compensation is unclear. A few tribal commenters 
supported reviews less frequently than every 5 years, especially if the 
compensation exceeds the fair market value of the right-of-way. Another 
tribal commenter stated that 5 years is appropriate so that tribes can 
adjust rent consistent with economic conditions of the time period.
    Some commenters stated that no periodic review or adjustment should 
be required unless the Indian landowners negotiate for such reviews or 
adjustments. Commenters also requested exceptions to the review 
requirements when the grant provides for payment greater than market 
value or the adjustment results in additional compensation to the 
landowner.
    Response: The rule provides that tribes may negotiate for reviews 
and adjustments at any frequency. See FR 169.111. For individually 
owned Indian land, the rule establishes a default requiring reviews 
every 5 years, but provides several exceptions to allow the parties to 
avoid the reviews if appropriate. For example, if payment for the 
right-of-way is in a lump sum, then no review is required. See FR 
169.113(a). The Department has determined that including a default 
requirement for compensation reviews and adjustments is necessary, 
especially in the context of rights-of-way for extended periods, to 
ensure the trust beneficiaries continue to receive compensation that is 
just. Even if the Secretary initially determines that the established 
periodic compensation is just, circumstances and market conditions may 
change, requiring an adjustment to the compensation.
    Comment: Several commenters expressed concern that the same project 
could have different review processes if it crosses both tribal land 
and individually owned land, frustrating the goal of ``streamlining'' 
the regulations. These commenters stated that the rule for periodic 
review and adjustment should be the same for tribal land as for 
individually owned land.
    Response: The approaches to tribal land and individually owned 
Indian land are necessarily different because of the requirements of 
the statute and because the Department must provide greater deference 
to tribes in support of tribal self-determination and self-governance. 
Tribal governments may have broader interests than ordinary individual 
landowners.
    Comment: One commenter asked why the grantee's consent is not 
required, but the landowner's consent is required, for an adjustment. A 
few commenters stated that requiring landowner consent to an adjustment 
would be burdensome and unnecessary.
    Response: The statute, at 25 U.S.C. 324, imposes upon Interior no 
responsibilities to the right-of-way grantee. For this reason, 
consistent with the statute and the United States'

[[Page 72517]]

general responsibility to Indian tribes and individual Indians, the 
default rule is that only the landowner's consent is required for 
adjustments. However, the rule allows the parties to negotiate for the 
grant to provide an approach different from the default approach for 
reviews and adjustments, including an approach in which landowner 
consent would not be required for certain adjustments (e.g., if the 
adjustment results in increased compensation).

9. Other Payments Required (PR 169.118/FR 169.120)

    Comment: A commenter suggested qualifying the statement in this 
section saying the grantee must pay these amounts to the appropriate 
office by adding ``if applicable'' to address that the grantee will not 
be in violation of the grant pending any challenge on whether the 
grantee owes the additional fees.
    Response: The final rule adds the suggested phrase ``if 
applicable.'' BIA will consider the status of the challenge of any such 
payments in determining how to address a violation of the grant under 
FR 169.404.
    Comment: A few tribal commenters suggested adding that the tribe 
may charge additional fees with the application for use of the land. 
Another tribal commenter suggested clarifying that such fees may 
include, but are not limited to, tribal taxes and other fees and 
payments required under tribal law, and excluding charges imposed by 
the State or political subdivision of a State.
    Response: The final rule clarifies that fees may also be associated 
with the application for use of the land at FR 169.120(a). Taxes and 
fees required under tribal law, and charges imposed by the State or 
political subdivision of the State are addressed in FR 169.011.
    Comment: Several commenters stated that grantees should not be 
required to pay damages associated with the survey, construction, and 
maintenance of the facility in addition to compensation because the 
fair market value would account for any damage, and the right-of-way 
grant includes provisions for reclamation and restoration as a 
condition negotiated by the parties. The commenter stated that if the 
``damages'' refers to those beyond customary and reasonable damages for 
the authorized activity, the rule should so clarify. A few commenters 
suggested deleting this section. One stated it raises questions as to 
what happens if the grantee refuses to pay and who will calculate the 
damages. Another stated that it could significantly increase the cost 
of acquiring rights-of-way on Indian land and may, ultimately, impede 
further development.
    Response: Final Sec.  169.120 clarifies that, in addition to or as 
part of the compensation, the grantee will be required to pay for 
damages incident to the survey of the right-of-way or incident to the 
construction or maintenance of the facility for which the right-of-way 
is granted. The grantee may choose to negotiate this as part of 
compensation or bonding or alternative form of security. This section 
affords the parties the flexibility to account for damages in the 
manner they choose--as part of the base compensation or additional 
fees--but reinforce that it is the grantee's responsibility to pay for 
damages.

10. Condemnation

    Comment: A few commenters requested provisions regarding when 
Indian land may be condemned for a right-of-way and noted that the 
current Sec.  169.21, regarding condemnation, was not included in the 
proposed rule.
    Response: These regulations implement the Department's statutory 
authority for granting rights-of-way across Indian land. The current 
rule's condemnation section required reporting of facts relating to 
condemnation to BIA, to safeguard the interests of the Indians. The 
proposed rule deleted this section because it is not directly related 
to the rights-of-way approval process. The current rule does not 
provide guidance for condemnation of Indian land. The statutory 
provisions at 25 U.S.C. 357 govern this process.

11. Process for Grant of Right-of-Way

a. Deadlines for BIA Decisions
    Comment: A few tribal commenters supported the new deadlines for 
BIA to issue decisions on rights-of-way, stating that they are 
important to eliminate delays and promote economic development, will 
help speed the processing of applications, and provide applicants with 
more predictable timeframes.
    A few tribal commenters stated that the option for BIA to extend 
the timeframe for an additional 30 days should be deleted, because it 
may become the norm, making the timeframe a 90-day, rather than 60-day, 
period. Other tribal commenters requested reducing the timeframe to 30 
or 20 days, stating that 60 days appears excessive for rights-of-way. A 
tribal utility authority requested a special expedited path in which 
the applicant or tribe pays a reasonable fee that would reduce the 
decision timeframe to 30 days. One commenter requested increasing the 
deadline to 120 days following receipt of the complete package, but 
specifying that only one 30-day extension is permitted. Others stated 
that the extension period should be shortened.
    Response: The final rule continues to require a BIA decision on the 
right-of-way within 60 days, with the option for a 30-day extension. We 
did not make any changes to the timeline in response to comments 
because these timelines are intended to be the outer bounds of the time 
it will take for BIA review of rights-of-way and are intended to cover 
all rights-of-way, from the simplest to the most complex.
    Comment: Several tribal commenters requested that rights-of-way be 
deemed approved if BIA fails to take action within 60 days because 
existing remedies for inaction can be expensive and time-consuming and 
may delay critical tribal projects for which rights-of-way are needed. 
Other commenters, such as the Western Energy Alliance, also requested 
that applications be deemed approved, but suggested a timeframe of 120 
days.
    Response: The final rule does not incorporate a ``deemed approved'' 
approach for new rights-of-way because BIA is statutorily required to 
review and issue a determination of whether to grant rights-of-way over 
and across Indian land.
    Comment: Several commenters requested that a fixed deadline be 
inserted rather than requiring BIA to ``promptly'' notify an applicant 
whether the application is complete at PR 169.119(b) (FR 169.123(b)). 
These commenters noted that the timeline for BIA review of the 
application does not begin until after BIA confirms receipt of the 
complete application.
    Response: The final rule retains the term ``promptly'' in order to 
allow the necessary flexibility for BIA personnel, while conveying that 
such notification should occur as soon as feasible.
    Comment: A few tribal commenters requested that the rule require 
tribal consent be provided before the clock starts for approval of the 
right-of-way.
    Response: The rule specifies that the application must include the 
record of consent. See proposed and final Sec.  169.102(b)(5).
b. Process for Granting Right-of-Way (PR 169.119/FR 169.123)
    Comment: A tribal commenter stated that PR 169.119(a) should 
include a reference to cultural protection requirements.
    Response: Final Sec.  169.123(a)(2) adds a reference to cultural 
protection requirements as well as historic preservation requirements.

[[Page 72518]]

    Comment: A few tribal commenters requested that PR 169.119 require 
the application package to include a completed tribal application and/
or agreement with the tribe. One commenter stated that the applicant 
should be required to provide the tribe with a copy of the application 
upon filing.
    Response: The tribe may require its own application or agreement to 
determine whether to grant consent. Likewise, the tribe may require a 
copy of the application as a condition of its consent. Record of 
consent is a required component of the application under the final 
rule, so the final rule does not separately require a tribal 
application.
    Comment: A commenter requested changes to PR169.119 to delete the 
provision saying grantees must satisfy tribal ``land use'' measures and 
mitigation (citing Brendale v. Confederated Yakima Indian Nation, 492 
U.S. 408 (1989)).
    Response: The final rule retains the provision saying BIA may 
require modifications or mitigation measures necessary to satisfy 
tribal land use requirements. The case cited by the commenter is 
inapplicable because it applies to fee land, whereas these regulations 
apply to trust or restricted land.
    Comment: A few commenters requested clarification of PR 169.119(d) 
regarding who receives copies of grants and of denials. One commenter 
stated that BIA should be required to provide the grant within 10 days 
of the request.
    Response: The final rule addresses a typographical error to clarify 
that only the denial of an application is automatically provided to all 
parties. The final rule does not establish a timeframe in which BIA 
must provide a copy of the grant, though it is expected that BIA will 
respond within 10 days.
    Comment: A tribal commenter recommended a process similar to the 
one contained in the leasing regulations to allow approval timelines to 
proceed while NEPA compliance processes are underway. Another commenter 
requested more clarity about how the process for approval is integrated 
with the schedule for BIA compliance with NEPA and other environmental 
requirements.
    Response: Information necessary to facilitate BIA's compliance with 
NEPA must be included in the application. The final rule does not add 
the provision set forth in the leasing regulations providing for a 
formal ``acknowledgment review'' but BIA may provide a review of 
documentation pending preparation of NEPA documentation and any 
valuation to provide greater certainty as to the viability of a right-
of-way project pending completion of the application.
c. BIA Decision To Grant a Right-of-Way (PR 169.120/FR 169.124)
    Comment: A commenter stated that the description of when BIA will 
grant a right-of-way should be more specific. Another commenter stated 
that this section has the potential to create problems for applicants 
because, as a general rule, a right-of-way is in the best interest of 
the applicant versus the landowner. A commenter stated that this 
section should give special consideration for rights-of-way for 
landowners who otherwise would have no viable option for obtaining 
critical utility service.
    Response: The section establishing the criteria BIA will consider 
in determining whether to approve a grant is necessarily general to 
ensure applicability to all types and circumstances surrounding right-
of-way applications. While the right-of-way will likely benefit the 
applicant because the applicant has some need for the right-of-way, BIA 
will look to compensation and other factors to determine whether the 
grant is also in the best interest of the Indian landowner. The final 
rule provides special consideration if the right-of-way provides 
utility service, as explained above.
    Comment: A few commenters stated that the BIA should be required to 
defer to the tribe's determination fully, rather than ``to the maximum 
extent.'' One tribe supported the language that BIA will defer to the 
tribe absent a ``compelling reason'' not to defer, and stated that this 
is a clear improvement over the existing rule. Other commenters stated 
that BIA should not restrict itself in denials, and that the language 
implies that denials are institutionally disfavored. A few commenters 
suggested listing conditions or events that could serve as a basis for 
not deferring to Indian landowners' determination that a grant is in 
their best interest or that could serve as the basis for denial. One 
tribal commenter suggested a separate provision stating that the 
deference requirement applies to all aspects of the right-of-way 
process unless deference clearly violates Federal law.
    Response: Under this rule, BIA will generally defer to the tribe's 
determination. The phrase ``to the maximum extent'' is included to 
allow for those exceedingly rare situations in which BIA cannot accord 
full deference while meeting its trust responsibility. The language 
attempts to provide greater certainty to applicants that, if they 
comply with legal and regulatory requirements, including obtaining 
landowner consent, BIA will generally approve the grant (absent a 
``compelling reason'' or finding that the grant is not in the best 
interest of the Indian landowners). Compliance with legal and 
regulatory requirements is a prerequisite to BIA approval. The final 
rule does not list conditions or events that could serve as the basis 
for disapproval because the ``compelling reason'' and ``best interest'' 
determinations are fact-specific.
    Comment: A few tribal commenters stated that the rule should 
require the tribe to concur in a BIA determination regarding an Indian 
landowner's best interest, because the tribe should determine the best 
interests of its members.
    Response: The rule does not require tribal concurrence in BIA's 
best interest determination for individual Indian landowners. The 
tribe's relationship with its members is beyond the scope of this 
regulation.
    Comment: A commenter requested deletion of the provision in PR 
169.120(d) allowing BIA to issue separate grants for one or more tracts 
traversed by the right-of-way because separate grants would result in 
cumbersome management, impact bonding requirements, and complicate 
compliance with other regulatory requirements. This commenter stated 
that one right-of-way grant should be issued for all tracts traversed 
by the right-of-way.
    Response: BIA currently has the discretion to grant either one 
right-of-way for all of the tracts traversed by the right-of-way, or 
issue separate grants. This provision merely makes explicit that BIA 
has this discretion because there may be circumstances in which it 
would be less burdensome for BIA to issue separate grants.
d. Contents of the Grant (PR 169.121/FR 169.125)
    Comment: A few tribal landowners suggested requiring the grant to 
incorporate conditions and restrictions not just in consents, but also 
in any tribal application and agreement between the tribe and the 
applicant.
    Response: The tribe is free to include any conditions it wishes in 
its consent, which may incorporate conditions and restrictions in its 
tribal application and agreement.
    Comment: Several tribal commenters stated that PR 169.121 should 
clarify that tribal jurisdiction is preserved and that the grant itself 
should specify that tribal authority is preserved. A commenter stated 
that the grant should

[[Page 72519]]

include a statement that the tribe will have reasonable access to the 
subject lands to verify grantee's compliance with any of the tribe's 
conditions of consent and to protect public health and safety.
    Response: The final rule includes the suggested provisions at FR 
169.125(a) and (c)(1).
    Comment: A tribal organization suggested the rule should state that 
the landowners reserve all uses of a right-of-way for any purpose other 
than the purpose stated in the grant and that the landowners may 
consent to future grants for those uses if they do not unreasonably 
interfere with the grantee's authorized use of the right-of-way.
    Response: The landowner necessarily reserves all uses and rights 
that it does not convey. The landowner may consent to rights-of-way or 
agree to leases for such uses that meet the requirements in FR 169.127 
or 25 CFR part 162, respectively.
    Comment: Several commenters stated that the requirement to 
``restore'' the land to the original condition at PR 169.121(b)(3)(iii) 
and (ix) is difficult, if not impossible, and that reclamation of the 
land is a more reasonable standard consistent with other regulatory 
schemes. A tribal commenter stated that it has difficulty obtaining the 
agreement of grantees to restore. Several commenters stated that the 
restoration should not be ``as nearly as may be possible'' but instead 
should require use of ``best efforts.'' Another commenter stated that 
the provision requiring restoration ``as much as reasonably possible'' 
should instead read ``as much as possible'' and should be consistent 
with the earlier provision requiring restoration.
    Response: The current regulation requires that the applicant 
stipulate that it will ``restore the lands as nearly as possible to 
their original condition upon completion of construction the extent 
compatible with the purpose for which the right-of-way was granted'' 
and ``that upon revocation or termination of the right-of-way, the 
applicant shall, so far as is reasonably possible, restore the land to 
its original condition.'' Current Sec.  169.5(d) and (i). The proposed 
rule included substantively the same provisions, requiring the grantee 
to ``restore the land as nearly as may be possible to its original 
condition, upon the completion of construction, to the extent 
compatible with the purpose for which the right-of-way was granted,'' 
and ``restore [the] land to its original condition, as much as 
reasonably possible, upon revocation or termination of the right-of-
way.'' PR 169.121(b)(3)(iii) and (ix). The final rule retains the 
requirement for restoration as the default but allows the parties to 
negotiate for reclamation or some variation of the standard for 
restoration provided in the regulations, if appropriate, in order to 
address comments that restoration to the land's original condition may 
not be possible in all circumstances.
    Comment: An energy company commenter stated that the regulation 
should allow for abandoning natural gas pipelines in place where doing 
so would be less expensive and create less risk of damage to resources.
    Response: As discussed in the prior response, the parties may 
negotiate for alternatives to restoration of the land to its original 
condition, if appropriate.
    Comment: A tribal commenter stated that PR 169.121(b)(3) should 
state that the grant must require the grantee to perform soil 
conservation and weed control, and prevention and suppression of fires, 
as required by current 169.5.
    Response: The final rule encompasses soil conservation in its 
requirement to ``not commit waste'' and encompasses weed control, and 
prevention and suppression of fires in its requirement to ``clear and 
keep clear'' the land within the right-of-way.
    Comment: A few tribal commenters requested that the grantee be 
required to notify the tribe, in addition to BIA, of the grantee's 
address at all times.
    Response: The final rule adds at Sec.  169.125 a requirement for 
the grantee to notify the tribe, for grants on tribal land, of the 
grantee's address.
    Comment: Several tribal commenters requested adding a requirement 
for the grantee to inform BIA and the tribe of any filing of bankruptcy 
or receivership and require the grantee to demonstrate its financial 
capacity to carry out the responsibilities under the right-of-way 
grant.
    Response: The final rule adds a requirement that the grantee inform 
the BIA and tribe, for tribal land, if it files for bankruptcy or is 
placed in receivership. Tribes may also ask for additional documents to 
demonstrate financial capacity, as a condition of consent.
    Comment: One commenter stated that the tribe should evaluate and 
approve any ground-disturbing activity because, in the past, 
significant events such as oil spills have left landowners with no 
authority to impose corrective action.
    Response: The tribe may enact a law requiring tribal approval of 
any ground-disturbing activity outside of the BIA approval process for 
rights-of-way.
    Comment: One commenter noted that PR 169.121, stating that the 
grantee has no right to any of the products or resources of the land, 
may conflict with some existing grants issued under legislation other 
than 25 U.S.C. 323-328.
    Response: The provisions will be included in all new grants issued. 
If there is an existing grant under legislation other than 25 U.S.C. 
323-328, FR 169.125 will not apply unless and until a new grant is 
issued.
    Comment: Tribal commenters stated that PR 169.121 should be 
expanded to include cultural items and resources and to include a 
statement requiring activity under the grant to cease if historic 
properties, archaeological resources, human remains, or other cultural 
items are encountered.
    Response: The rule includes a provision to address cultural items 
and resources. See FR 169.125(c)(4). Any archaeological resources, 
human remains, or other cultural items recovered on Indian land are the 
property of the Indian landowner or tribe. 43 CFR 7.13; 43 CFR 10.6.
    Comment: A tribal commenter requested that the rule specify that 
tribes can initiate enforcement actions for violations of tribal law.
    Response: The final rule, by clarifying that the tribe retains 
jurisdiction over the land subject to the right-of-way, indicates that 
the tribe may initiate enforcement actions for violations of tribal 
law.
e. Preference for Employment of Tribal Members
    Comment: Several tribal commenters stated their support for the 
provision at PR 169.122, allowing grants to include the tribe's 
preference for employment of tribal workers, as provided by tribal law. 
One of these commenters noted this affirmation of tribal employment 
preference laws helps increase tribal employment and eradicate 
discrimination. A few tribal commenters noted that tribal law may 
require a preference even if the grant does not specify it, and 
therefore requested that the regulation note that failure to 
specifically reference the requirement does not excuse compliance. 
Another tribal commenter requested identifying specific areas in which 
the preference is permitted, such as preference in employment, 
subcontracting and use of the right-of-way.
    Several non-tribal commenters stated their objections to this 
provision as an ``unreasonable interference in hiring practices'' and 
``unrelated to easement tasks.'' Others stated their concerns with this 
provision's interplay with applicable labor laws and agreements (e.g., 
requirements to use unionized

[[Page 72520]]

labor, contract bidding requirements). Some asked for more 
specification (e.g., what percentage would be required, what 
qualifications are required) and exclusions (e.g., for part-time 
positions, for grants over tribal land only). A few of these commenters 
requested edits to allow for preference to Indians generally.
    Response: Each tribe may establish requirements for employment 
preferences for tribal members; applicants should refer to tribal law 
to identify percentages and other information such as Tribal Employment 
Rights Ordinances. Tribe-specific employment preferences as provided in 
these regulations are based on political classification, not based on 
race or national origin. They run to members of a particular federally-
recognized tribe or tribes whose trust or restricted lands are at issue 
and with whom the United States holds a political relationship. These 
preferences are rationally connected to the fulfillment of the Federal 
Government's trust relationship with the tribe that holds equitable or 
restricted title to the land at issue. These preferences also further 
the United States' political relationship with Indian tribes. Tribes 
have a sovereign interest in achieving and maintaining economic self-
sufficiency, and the Federal Government has an established policy of 
encouraging tribal self-governance and tribal economic self-
sufficiency. A tribe-specific preference in accord with tribal law 
ensures that the economic development of a tribe's land inures to the 
tribe and its members. Tribal sovereign authority, which carries with 
it the right to exclude non-members, allows the tribe to regulate 
economic relationships on its reservation between itself and non-
members. See, generally, Equal Employment Opportunity Commission v. 
Peabody Western Coal Company, 773 F.3d 977 (9th Cir. 2014) (upholding 
tribal preferences in leases of coal held in trust for the Navajo 
Nation and Hopi Tribe, but also citing with approval the use of such 
preferences in business leases). These regulations implement the 
established policy of encouraging tribal self-governance and tribal 
economic self-sufficiency by explicitly allowing for tribal employment 
preferences. If there is a reason that the applicant is not able to 
comply with tribal laws regarding employment preferences, the applicant 
may negotiate with the tribe on this matter when negotiating for the 
tribe's consent.

12. Process for Rights of Way Applications Within or Overlapping 
Existing Rights of Way, or ``Piggybacking'' (PR 169.123/FR 169.127, 
169.128)

    Comment: Several tribal commenters supported the proposed provision 
clarifying whether a new right-of-way is required for use within or 
overlapping an existing right-of-way. Many of these noted that there 
have historically been many unauthorized uses of rights-of-way, through 
unlawful ``piggybacking,'' on Indian land. Examples they provided 
included utilities using a right-of-way established for one utility use 
(e.g., a water line) for a different utility use (gas pipeline). Some 
suggested strengthening this section to include criteria allowing 
piggybacking only where it directly benefits and serves the tribal 
community. A few suggested allowing only uses specified in the grant, 
and deleting the allowance for ``uses within the same scope'' as too 
broad and having the potential to be exploited by grantees. Some of 
these tribal commenters stated that the default should prohibit 
piggybacking, unless the Indian landowners choose to include uses 
within the same scope in a particular grant. Several commenters argued 
that this provision should be deleted in its entirety.
    Those opposed to the provision requiring a new right-of-way stated 
that it ``immensely and unnecessarily burdens applicants whose rights-
of-way would not impede the existing facilities and existing right-of-
way, amounts to double and triple charging for the same right-of-way, 
and should not be required if the new use is permitted by applicable 
law.
    A few tribal commenters stated that the provision should specify 
that a new right-of-way is required to enlarge or expand the right-of-
way, such as when a different type of service will be installed or 
there is a substantial change in the nature and use, such as replacing 
a 14kV distribution line with a 69kV transmission line. Commenters 
disagreed, even in given examples, on whether certain piggybacking 
should require a new right-of-way. For example, a tribal commenter 
stated that siting utilities within road and railroad rights-of-way 
without compensating the landowners for the additional use should be 
prohibited. In contrast, a city commenter stated that the rule should 
clarify that utility lines located in a right-of-way established for a 
road should be considered an incidental use of the right-of-way not 
requiring consent or compensation where the consumer is using and 
paying for the utility service.
    Response: The final rule maintains the proposed requirement that a 
use not specified or stated within the scope of an existing right-of-
way requires new consent and approval for the new use. The language 
``within the same scope'' is intended to provide flexibility with 
regard to uses that are not foreseeable but are comparable (for 
example, a grant for an underground telephone line that is later used 
for an underground fiber optic line). Examples of uses that would not 
be within the same scope are a grant for a railroad being used for 
telecommunications, a grant for a road being used for utility lines, or 
a grant for an above-ground electrical wire being used for buried 
electrical wires. The final rule does not add a review of whether the 
new use will benefit the landowners because the BIA and the landowners 
consider this factor when issuing the original grant, so any use within 
that scope should likewise benefit the landowners. The Department has 
determined that maintaining this proposed section is important to 
specify that a right-of-way grant is not carte blanche to do whatever 
the grantee desires with the land, but rather is a grant for certain 
uses. Uses outside the scope of those specified uses constitute 
trespass.
    Comment: A few tribal commenters suggested clarifying that grantees 
must obtain an amendment to allow third parties to use the right-of-
way, if the right-of-way does not clearly contemplate use by third 
parties, even if the third party will be using the right-of-way for the 
purposes stated in the right-of-way.
    Response: The final rule clarifies that, even when the use is the 
one specified in the grant or within the same scope, certain procedures 
must be followed if the grantee wishes to allow a third party 
unauthorized by the grant to use the right-of-way. The final rule 
clarifies that the grantee must obtain an assignment to allow someone 
other than the grantee to use the right-of-way for the use specified or 
within the same scope of the use specified in the grant.
    Comment: A commenter stated that this provision is silent on 
whether additional compensation is required.
    Response: Where piggybacking requires a new right-of-way, 
compensation is generally required. Where piggybacking requires an 
amendment or assignment to the right-of-way, the landowners may demand 
compensation as a condition of their consent.
    Comment: A commenter requested that the current 169.05 language 
requiring that the application identify the ``specific use'' be 
reinserted.

[[Page 72521]]

    Response: Final Sec.  169.125 requires that the grant specify the 
use(s) it is authorizing.
    Comment: One commenter stated that BIA appears to be trying to 
sidestep United States v. Oklahoma Gas & Electric, 318 U.S. 206 (1943). 
This commenter also questioned whether the phrase ``before the 
effective date of this part'' is intended to state that the Supreme 
Court's decision will no longer be applicable.
    Response: The case cited by this commenter does not apply because 
it is interpreting statutes other than the 1948 Act (25 U.S.C. 323-
328). Those other statutes explicitly referred to State law, which the 
1948 Act does not. These regulations rely on and interpret the 1948 
Act.
    Comment: A commenter stated that piggybacking should be disallowed 
without limitation, regardless of whether it is allowed by State law. 
Other commenters stated that BIA has for years taken the position that 
the 1948 Act supersedes the 1901 Act.
    Response: The final rule does not disallow piggybacking entirely, 
because there may be circumstances in which piggybacking is in the best 
interest of the Indian landowners. The provision that the commenters 
are referring to, with regard to the 1901 Act, is deleted in the final 
rule because a new grant issued within or overlapping an existing grant 
would be issued under the 1948 Act, rather than the 1901 Act.
    Comment: One commenter expressed concern about allowing a new use 
in a right-of-way for electric transmission systems, and suggested 
requiring the consent of the current grantee to determine whether the 
use will interfere with the existing use. A few commenters suggested 
deleting PR 169.123(b)(2), which would require that the new use not 
interfere with the existing use or requires the grantee's consent, 
because if the use is not within the scope of the existing right-of-
way, then the existing grantee has no authority to authorize or refuse 
the use. These commenters claim the right-of-way is not a possessory 
interest.
    Response: The final rule requires the grantee's consent at FR 
169.128 to ensure that the new use does not interfere with the existing 
grantee's right-of-way. While the interest in the right-of-way is not a 
possessory interest, the grantee has the right to use the right-of-way 
for the specified purpose without interference.

13. Location in Application and Grant Differ From Construction Location 
(PR 169.124/FR 169.129)

    Comment: A tribal commenter supported PR 169.124, saying it is a 
practical and reasonable approach that would have helped past 
situations in which the tribe attempted to correct an inaccurate legal 
description. Other commenters stated that the applicant should be 
required to obtain a new right-of-way grant if there is a change in 
location.
    Response: This provision is included in the final rule to address 
unforeseen circumstances before construction. The commenters' assertion 
that the applicant should be required to obtain a new right-of-way 
grant whenever there is a change in location indicates a concern that 
this section could be abused. For this reason, the final rule adds that 
the BIA and the tribe, for tribal land, must determine that the change 
in location is only a minor deviation, and that, if it is not, then the 
grantee must seek a new or amended right-of-way grant.
    Comment: One commenter suggested streamlining the process by 
requiring an amendment rather than an entirely new right-of-way, 
allowing BIA to consent on behalf of landowners if BIA consented to the 
initial grant, and allowing for a recalculation of compensation rather 
than requiring a new valuation.
    Response: The final rule allows an option for an amendment to the 
existing right-of-way in appropriate circumstances. Provisions for BIA 
consent on behalf of landowners are provided in the regulatory sections 
governing consent. The final rule also allows for a recalculation of 
compensation with landowner consent.
    Comment: A tribal commenter stated that any change in location 
should require landowner consent, and may require additional 
compensation, a change in bonding, and other conditions. Another tribal 
commenter stated that a change in location that will require 
construction outside an approved corridor should require prior tribal 
consent. A commenter expressed concern about whether the section 
excuses negligence when a grantee fails to stay within the boundaries 
identified in the grant and allows potentially major errors to be 
corrected with landowner consent and other requirements only in BIA's 
discretion. Other commenters stated that consent should be required 
only if the change in location is material and significant and that 
requiring consent to minor changes could bring operations to a 
standstill if the landowner declines to grant consent.
    Response: As explained above, the final rule clarifies that this 
provision applies to minor deviations in location, and that any other 
changes in location would require a new or amended right-of-way grant. 
Whether a change in location is a ``minor deviation'' is a matter of 
judgment. An example of a ``minor deviation'' would be a change in 
location of a few feet in an expanse of undeveloped land whereas a 
change in location of a 10 or more feet, or even a few feet, in a 
highly developed area may not be considered a minor deviation.
    Comment: A few commenters suggested including a requirement to 
provide notice to the tribe or to all Indian landowners. Other 
commenters suggested adding that revisions may also be subject to 
additional bonding and NEPA compliance requirements.
    Response: FR 169.129 provides that BIA will work with the tribe, 
for tribal land, to determine what the change in location requires and 
adds that additional actions may be necessary to comply with applicable 
laws.
    Comment: A few commenters had questions about this section, such as 
whether grantees must notify BIA even if the survey accounts for the 
discrepancy in location.
    Response: If a survey is inaccurate, the grantee must notify the 
BIA to determine whether the change in location is a minor deviation.
    Comment: One commenter claimed to have received grants that contain 
incorrect information in the past, and suggested the rule should 
provide the grantee the opportunity to review the document before it is 
officially issued.
    Response: The final rule does not specify that the grantee may 
review the document before it is issued, but grantees are welcome to 
maintain an open line of communication with BIA, and BIA may, in its 
discretion, provide grantees with the opportunity to review.

14. Bonding (PR 169.103/FR 169.103)

    Comment: Several commenters suggested adding flexibility to the 
bonding provisions to allow for nationwide bonding and self-insurance. 
Others requested specifically adding an insurance requirement or 
bonding requirement to cover contaminants and explosives. At least one 
tribal commenter stated that tribes should have the option to determine 
whether bonding or insurance is more appropriate to address potential 
environmental damage. A few commenters opposed the requirement for 
bonding, stating that the tribal landowner may end up paying the costs, 
and suggested allowing for a waiver. One commenter supported the

[[Page 72522]]

provisions allowing for bonding, while others stated that the 
provisions raise more questions than they answer.
    Response: The final rule retains the requirement for bonding but 
adds flexibility allowing for insurance or bonding to cover 
contaminants and includes a provision allowing for waiver of bonding 
and security requirements.
    Comment: A commenter noted that this section requires a surety to 
provide notice to BIA before cancelling a bond or surety, but does not 
require notice to the tribe, and stated that the rule should require 
notice to the tribe.
    Response: The final rule requires the surety to also provide notice 
to the tribe for bonds or sureties for rights-of-way on tribal land.

Subpart C--Terms, Renewals, Amendments, Assignments, Mortgages

1. Term (Duration)

    Comment: Several commenters, including tribal commenters, supported 
having BIA defer to the tribe on the reasonableness of the term 
(duration) of the right-of-way. A few tribes suggested that the rule 
should establish default terms that apply, as in the current part 169, 
which limits oil and gas pipelines to 20 years and electric power lines 
to 50 years. Some suggested the default terms should apply whenever the 
tribe has not determined that a longer term is necessary or the right-
of-way use does not provide significant service to the reservation. 
Commenters supportive of limiting the duration of grants pointed out 
that economic, technological, environmental, and other factors change 
what might have been an appropriate term for a right-of-way when 
originally granted, and limiting the term will ensure a reexamination 
consistent with tribal rights and interests.
    Several commenters suggested different uses for the proposed table 
showing terms for each right-of-way use. One tribal commenter suggested 
clarifying that the terms in the table are maximum term lengths, not 
minimum or recommended term lengths. A tribal commenter suggested 
adding general criteria for granting terms longer than those specified 
in the table (e.g., infrastructure or service benefits to landowners, 
projects that will benefit all landowners).
    Response: Tribes are free to rely on the terms provided as 
guidelines for individually owned Indian land, but the rule does not 
require those terms; instead, the rule provides that BIA will defer to 
any term the tribe deems appropriate.
    Comment: Many commented on the terms proposed for rights-of-way 
over or across individually owned Indian land, as summarized here:
     Oil and gas pipelines--A few commenters stated that the 
proposed 20-year term for gas and oil pipelines is appropriate, but 
most other commenters stated that 20 years is unrealistic and too 
short, suggesting at least 40 or 50 years.
     Electric distribution lines--Some commenters stated that 
electric distribution lines should be permitted in perpetuity; one 
suggested 50 years, and others stated that 50 years is too long.
     Utilities, in general--Commenters who are providers of 
utilities stated that the grants should be in perpetuity (see 
discussion below); one suggested commercial utilities should have terms 
of 40 years. An electric cooperative suggested a 50-year right-of-way 
for electric cooperatives providing service to the tribe.
     Telecommunications and broadband or fiber optic lines--A 
commenter suggested the term for telecommunications and fiber optic 
lines should be commensurate with that of other utilities; another 
suggested 50 years; others suggested 10 years.
     Railroads--Some commenters stated that terms for railroads 
and roads should be limited to 75 years, rather than in perpetuity.
     Conservation easements--A tribal commenter stated that 
conservation easements are usually in perpetuity, even though the table 
says ``consistent with use.''
     Other--Several commenters stated that most rights-of-way 
should be limited to 20 years.
    Response: The final rule recommends a maximum term of 50 years for 
all rights-of-way other than oil and gas and conservation easements. 
The final rule retains the recommended maximum duration of 20 years for 
gas pipelines as a baseline; however, if longer durations are 
appropriate in certain circumstances, BIA will review the request to 
determine if the longer duration is in the best interest of the Indian 
landowners. For conservation easements, the final rule retains the 
recommendation for duration consistent with use. The Department 
determined these terms are appropriate as guidelines. The final rule 
also specifies that there may be circumstances in which a different 
term may be appropriate, for example, if a Federal agency requires a 
different term.
    Comment: Several commenters, including several tribal commenters, 
stated that the rule should eliminate ``in perpetuity'' terms for 
rights-of-way on Indian land. These commenters asserted that allowing a 
perpetual right-of-way violates the trust responsibility, fails to 
preserve the ability to change the grant in changed circumstances, 
fails to account for future generations, is not appropriate in the 
context of the history of Indian landowners not being fairly 
compensated for rights-of-way, and erodes tribal jurisdiction. One 
commenter stated that the maximum term should be the shortest period 
that provides sufficient certainty and/or opportunity for the grantee 
to recover costs. One commenter stated that perpetuity may be 
appropriate if it will forever benefit the landowners.
    A few electric cooperatives (e.g., NM Rural Electric Cooperative 
Association) stated that allowing a grant in perpetuity would reduce 
the impact of substantial fees that tribes assess on the cooperatives, 
benefiting all cooperative members, including tribal members, and 
eliminating the uncertainty in planning for affordable rates by 
eliminating the prospect of having to renew at prices that have no 
ceiling. One electric cooperative stated that the line should be in 
perpetuity if it serves the tribal community, in contrast to 
transmission lines that go over and across tribal lands.
    Likewise, public utilities argued that public utility transmission 
and distribution lines and appurtenant facilities should have a 
perpetual term because shorter terms could undermine the utility's 
ability to provide affordable, essential utility service to the public. 
The utilities argued that they may be forced to choose a more expensive 
route, where a perpetual grant is ensured, rather than face the 
prospect of having to relocate the line at some point in the future 
when the grant expires. A city commenter stated that the rule should 
require BIA to grant easements in perpetuity if a professional engineer 
provides a map certifying certain circumstances, including that that 
the water and sewer system serve the entire community with the consent 
of landowners.
    One commenter suggested that, instead of allowing ``in 
perpetuity,'' the grant should state that if the right-of-way is 
abandoned for its original purpose, then it reverts to the landowners.
    Response: The final rule does not recommend ``in perpetuity'' for 
any type of right-of-way because the underlying parcel is trust 
property for which the Department owes an ongoing trust responsibility 
that is undermined if the Department abandons the ability forever to 
review the grant in certain intervals to address changed circumstances. 
While it is possible that under some

[[Page 72523]]

circumstances BIA could determine that a perpetual term is in the best 
interest of the individual Indian landowners, BIA expects those 
circumstances would be rare.
    Comment: A commenter stated that the rule should clarify when, how 
and under what criteria the BIA will decide the overall term of the 
right-of-way and whether the term complies with applicable legal 
authorities. Another commenter stated it is unclear how closely the BIA 
will conform to the table of guidelines when examining terms on 
individually owned Indian land.
    Response: The proposed and final rules provide for flexibility in 
establishing the term (duration) of a right-of-way by providing that 
BIA will defer to the tribe's determination that a term is reasonable, 
and by providing guidelines for reasonable terms for individual Indian 
landowners. See FR 169.201.
    Comment: A power administration commenter noted that it has 
existing rights-of-way in perpetuity and asked how the grant would be 
impacted if the new rule requires a shorter term.
    Response: The rule provides a guideline for determining whether a 
term is reasonable in light of the purpose of a right-of-way for 
individually owned Indian land. It does not affect any existing grant 
terms.
    Comment: NorthWestern Energy requested treating all natural gas 
lines as utility gas lines and treating pipelines carrying oil and 
other petroleum products separately. A few tribal commenters suggested 
the opposite, clarifying that ``utility gas lines'' mean natural gas 
lines serving a tribal member or the tribe, and not transmission lines 
of a natural gas utility company.
    Response: Proposed and final Sec.  169.201 treat utility gas lines 
(a term of 50 years) separately from other gas pipelines (with a term 
of 20 years). Whether a natural gas line is treated as a utility gas 
line generally depends upon whether it is carrying processed gas ready 
for use by the consumer or unprocessed gas from the wellhead.
    Comment: Several commenters requested clarifications on different 
uses specified in the proposed table of terms.
    Response: The final rule deletes the table of terms based on 
specific rights-of-way uses.
    Comment: A few commenters advocated for applying the same terms to 
both tribal and individually owned land to provide certainty to enable 
the applicant to justify the capital investment in the necessary 
improvements. One urged the Department to rethink the distinction and 
allow individual landowners the same latitude to reach agreement on 
appropriate terms, in the same manner as for a tribal right-of-way, 
alleviates confusion regarding how terms should be applied to 
fractionated parcels with both tribal and individual owners, and 
provides greater flexibility to address specific factual circumstances. 
A few commenters suggested deleing the table and simply providing that 
the BIA will defer to the landowners' determination that the term is 
reasonable. A few commenters stated that BIA should consult with the 
tribe on what a reasonable term will be for rights-of-way that will 
cross both individually owned Indian land and tribal land.
    Response: The final rule explicitly provides that the BIA will 
consider the duration negotiated by the tribe for tribal land when 
reviewing rights-of-way that also cross individually owned Indian land 
(or are located on fractionated land with both tribal and individual 
ownership). BIA encourages tribes and individual Indian landowners to 
consult with one another on reasonable terms for rights-of-way 
affecting both their interests.

2. Holdovers

    Comment: A commenter stated that holdovers should be allowed if the 
landowner consents to the grantee's continued use for a period of less 
than 7 years and the grantee has submitted an application for a renewal 
or a new right-of-way. Several commenters suggested adding that a 
grantee may temporarily maintain the right-of-way pursuant to an 
agreement with the tribe or majority of landowners during good faith 
negotiations concerning renewal, and that the grantee will not be 
considered to be in trespass if it has filed an application for 
renewal.
    Response: The final rule addresses holdovers exclusively in FR 
169.410, which states that while holdovers are not permitted, BIA will 
not enforce against holdover grantees if they are engaged in good faith 
negotiations.

3. Renewals (PR 169.201-169.202/FR 169.202)

    Comment: Several commenters stated that there is no need for a 
renewal of a right-of-way, and instead the grantee should be required 
to submit a new application because conditions may have changed. 
Several commenters supported the language in PR 169.202 on renewals. 
Several other commenters opposed the requirement that the original 
grant allow for renewal and specify any compensation. A commenter 
stated the current approach, of allowing renewals regardless of whether 
the original grant authorizes renewals, should be retained.
    Response: The final rule allows for renewal where the grant 
explicitly allows for an automatic renewal or option to renew and 
certain other conditions are met. See FR 169.202.
    Comment: A few commenters asked whether the terms outlined in Sec.  
169.201 include only the initial term or are inclusive of the renewal 
term.
    Response: The final rule clarifies that guidelines for maximum 
terms are intended to apply to the entire duration of the grant, 
inclusive of the initial term and any renewals.
    Comment: A commenter stated that the rule should not allow renewal 
without tribal notice or consultation.
    Response: The proposed and final rules require landowner consent 
for renewals, unless the landowners agreed not to require consent for 
renewals in the original grant as provided for in Sec.  169.202(b). The 
final rule requires notice to landowners for those circumstances in 
which the original grant allows for renewals without consent.
    Comment: One commenter supported provisions allowing the original 
grant to provide for renewals without landowner consent. A few 
commenters requested clarification that the original grant must specify 
that consent is not needed for renewal; otherwise, grantees could argue 
that silence in the original grant allows for renewal without consent. 
Several tribal commenters stated that landowner consent should always 
be required for renewals, rather than allowing the original grant to 
allow for renewal without consent, because some landowners may be taken 
advantage of and not realize that they can oppose this type of 
provision. Another commenter expressed concern about having landowners 
bind future landowners by allowing for renewals without consent.
    Response: Final Sec.  169.202(b) specifies that the original grant 
must explicitly allow for renewal without consent. If the original 
grant is silent as to whether consent is required for renewals, then 
consent for the renewal is required.
    Comment: Several commenters suggested adding a requirement that the 
grantee demonstrate that the right-of-way was neither abandoned nor in 
violation of any conditions in the grant. A commenter suggested 
amending paragraph (a)(1) to add that the grantee must comply with 
renewal requirements in the grant.
    Response: The final rule adds a provision requiring that the 
grantee be in compliance with the grant and regulations as a condition 
of renewal.

[[Page 72524]]

    Comment: We received several comments on whether the renewal should 
allow for any changes to the original grant's terms. A few commenters 
stated that the rule should provide flexibility to allow for minor 
changes to size, type, location, or duration of the right-of-way 
through an amendment, rather than through an entirely new application. 
A tribal commenter suggested that renewals should be allowed if there 
is no ``material change.'' One commenter stated that requiring a new 
right-of-way application for every change, no matter how small, will 
lead to inefficiencies and detrimentally affect the modernization of 
energy infrastructure.
    Response: The final rule allows for renewals only if there is no 
change; otherwise, the new right-of-way does not qualify as a 
``renewal.'' A grantee seeking to renew may do so and then separately 
request an amendment if there is a need to change the grant.
    Comment: A tribal commenter stated that rights-of-way should be 
renewed only if the renewal includes additional compensation.
    Response: The final rule requires additional compensation for 
renewals.
    Comment: A commenter requested that no map be required for a 
renewal if there is no material change to the map that was filed with 
the original application. Another commenter stated that requiring 
certified surveys for renewals would be a significant cost.
    Response: The final rule does not require a map or survey if the 
grantee attests that there is no change.

4. Multiple Renewals (PR 169.203/FR 169.203)

    Comment: Several commenters stated that this section should clarify 
that the multiple renewals are subject to the requirements of Sec.  
169.202. One tribal commenter suggested deleting this provision because 
it tends to provide for perpetual easements if the grants are 
automatically renewed.
    Response: The final rule clarifies that the provisions of Sec.  
169.202 apply to each renewal. To address the concern regarding 
perpetual easements, the final rule provides that BIA will review the 
initial term and any renewal terms and determine whether, together, 
they are reasonable.
    Comment: A commenter stated that this section should prohibit 
multiple renewals if the grant prohibits them.
    Response: The final rule states that renewals must be explicitly 
authorized in the grant.
    Comment: A commenter stated that the rule should retain the current 
Sec.  169.25 for oil and gas pipelines because the new rule will make 
renewals, amendments, assignments, and mortgages more difficult and 
time consuming.
    Response: Current Sec.  169.25 does not address the process for 
amendments, assignments, and mortgages for oil and gas pipelines. The 
Department has determined that establishing procedures for amendments, 
assignments, and mortgages for new rights-of-way is necessary to 
protect the landowner's right to obtain value from the trust resource. 
To the extent it addresses renewals, the current rule allows an initial 
term of 20 years and specifies a renewal period of 20 years. The 
Department will defer to tribes for right-of-way terms and renewals on 
tribal land. For rights-of-way on individually owned Indian land, BIA 
will use the guideline of 20 years as a maximum for a reasonable term 
for oil and gas pipelines to ensure a reexamination of the 
circumstances upon application for a new right-of-way at the end of 
that 20-year term, rather than an automatic renewal, to ensure 
protection of the landowner's right to obtain value from the trust 
resource.

5. Amendments

    Comment: A commenter stated that amendments should not be required 
for changes to accommodate a change in the location of permanent 
improvements to previously unimproved land within the right-of-way 
corridor, and that, instead, the rule should add that amendments are 
not required for ``other administrative modifications.'' The commenter 
states that this term is used in part 150 and in IBIA decisions, 
establishing precedent.
    Other commenters were concerned that allowing corrections to legal 
descriptions or other technical corrections without meeting consent 
requirements could encourage grantees to couch significant changes as 
``technical corrections.'' These commenters stated that there should be 
no exceptions to the consent requirements, and that the final clause of 
Sec.  169.204(a) should be deleted.
    A few tribal commenters stated that the prior notification to 
landowners should be required if BIA will be amending a grant to 
correct a legal description or make another technical correction 
without meeting consent requirements.
    Response: The final rule adopts the suggested terminology and 
allows BIA to make ``administrative modifications'' upon request 
without landowner consent. BIA will review each request for an 
administrative modification and determine whether it is a more 
significant change, requiring an amendment with landowner consent and 
BIA approval. The final rule requires that the grantee notify 
landowners of the administrative modification, but does not require 
prior notification because the administrative modification is, by its 
nature, a technical correction.
    For other changes to the grant that are more significant than 
administrative modifications, the final rule provides that the grantee 
must obtain landowner consent and BIA approval. Administrative 
modifications are intended to capture the category of changes that are 
clerical in nature and do not affect vested property rights or involve 
questions of due process. The final rule also states that if the change 
to the grant is material, BIA may require the grantee to obtain a new 
grant rather than merely amend the existing grant. An example of a 
material change to a grant would be changing the right-of-way use from 
a two-lane road to a six-lane highway. BIA will review each amendment 
request to determine whether it is a material change requiring a new 
right-of-way.
    Comment: A commenter expressed concern with using the terms 
``permanent improvement'' and ``unimproved land'' in PR 169.204(b) 
because they are not defined and are not used in the current rule. 
Another commenter opposed PR 169.204(b) because the grantees obtain 
rights to use the land encompassed by the right-of-way, and those 
rights include the right to amend the location of the improvements 
within the right-of-way without consent or approval. The commenter 
points out that it would be extremely time consuming and costly to 
require grantees to again secure consent and approval, adding hurdles. 
This commenter suggested instead only requiring the grantee to provide 
notice to BIA, for recording in the LTRO.
    Response: The provision regarding moving permanent improvements to 
unimproved land has been deleted and replaced with a new standard for 
determining whether an amendment is required: whether the change is 
``material.'' Nevertheless, amendments are generally required for 
changing the location of permanent improvements because it is necessary 
for BIA to know the exact location of permanent improvements for its 
analysis under the National Environmental Policy Act and the National 
Historic Preservation Act.
    Comment: One commenter asked how PR 169.204 works with PR 169.123 
(new uses within or overlapping existing grants) where a grantee 
proposes to adjust its use within the same right of

[[Page 72525]]

way. This commenter stated that the grantee should be able to 
accomplish a minor change in use without having to request an entirely 
new right-of-way.
    Response: The final rule updates PR 169.123 (FR 169.127) to clarify 
that a grantee that seeks to adjust its use within the same right-of-
way may request an amendment of the right-of-way, while a grantee that 
seeks to use a right-of-way held by another individual or entity must 
obtain an assignment (if the use is within the same scope) or seek an 
entirely new right-of-way (if the use is not within the same scope).
    Comment: A commenter suggested requiring notification of the date 
of BIA's receipt of a request for amendment and any BIA request for 
additional review time only to the amendment applicant, and not the 
landowners.
    Response: The Department's trust obligation is to the landowners, 
rather than to the parties in general; therefore, the final rule 
requires notification to the landowners as well.
    Comment: A few commenters suggested that an amendment should be 
deemed approved if BIA fails to take action within the required 
timeframe. A tribal commenter opposed allowing BIA to extend the 
timeframe unilaterally for review of amendments, and that the timeframe 
should instead be tolled if additional information or revision is 
necessary.
    Response: The final rule does not allow amendments to be ``deemed 
approved'' because BIA must review the amendment to determine whether 
it requires a new right-of-way or triggers other Federal review. The 
final rule incorporates a process whereby the amendment will be 
elevated within BIA if BIA fails to take action within the required 
timeframe. This ensures accountability within BIA on meeting timelines.
    Comment: A commenter stated that it is unclear when BIA approval of 
an amendment would not be required, and suggested either clarifying or 
deleting the phrase ``if our approval is required'' in PR 169.205(a).
    Response: The provision cited by the commenter is deleted from the 
final rule. See FR 169.205.
    Comment: A commenter stated that consent in PR 169.206 should refer 
back to PR 169.107 and PR 169.108, so that if BIA granted consent for 
the original right-of-way, it may consent for the amendment.
    Response: The final rule adds the appropriate cross-references. See 
FR 169.206.
    Comment: A commenter suggested limiting consent of grantee's 
sureties to only those securities that require consent of the surety 
for amendments to rights-of-way or similar documents.
    Response: The final rule does not incorporate this limitation 
because BIA is not in the business of determining which surety's 
consent is required. The final rule does, however, clarify that the 
grantee's surety refers to the surety for the bonds or other security, 
rather than other sureties.
    Comment: A commenter sought explanation of what would constitute a 
``compelling reason.''
    Response: The final rule does not define ``compelling reason'' 
because this phrase is intended to capture fact-specific circumstances 
that may not be foreseeable.

6. Assignments

    Comment: A few tribal commenters stated that the rule should allow 
for assignment of rights-of-way to other individuals or entities 
without BIA approval only where the original grant ``expressly'' allows 
for assignment. Otherwise, silence in the grant could be construed as 
allowing for assignments. Several other commenters (Western Energy 
Alliance, Enterplus Resources Corporation) stated that the rule should 
provide that rights-of-way are freely assignable without consent or 
approval, unless the grant states otherwise. One commenter stated that 
taking away the grantee's ability to sell, assign, or transfer its 
rights in a right-of-way significantly decreases the value to the 
grantee, potentially amounting to a ``taking.'' Another commenter 
stated that the requirements for consent and approval erect new and 
time-consuming barriers to assignments where none currently exist, 
undermining the goal of ``streamlining'' the regulations. One commenter 
stated that, to the extent BIA approval of an assignment is necessary, 
it should be limited to ensuring the assignee has financial and 
technical capability to maintain the right-of-way. This commenter 
stated that the default should be to allow assignments, unless 
otherwise provided in the grant.
    Response: The final rule states that landowner consent for 
assignments is generally required in all cases. This includes tribal 
consent for assignments of rights-of-way on tribal land. The final rule 
allows for assignment without BIA approval if the original grant allows 
for assignment without approval. An assignment is a conveyance of 
interest in Indian land, so the law generally requires BIA approval. 
While the current regulations are not clear on the process for 
assigning rights-of-way, the final rule establishes a process in the 
interest of protecting the landowners' interests and in transparency. 
These requirements are parallel to the leasing regulations at part 162.
    Comment: A few commenters, including energy companies, suggested 
clarifying when approval of and consent for an assignment is not 
required, and suggested that no approval or consent should be required 
when a grantee is fully acquired by a new entity, the grantee's name 
changes, the grantee changes as a result of a corporate merger, 
acquisition, transfer by operation of law, or assignment to affiliated 
entities or companies.
    Response: The final rule incorporates the energy companies' 
suggestion that assignments that are the result of a corporate merger, 
acquisition, or transfer by operation of law not require consent and 
approval, because such ``assignments'' are not actually a conveyance of 
an interest in the Indian land. Record of these assignments must be 
submitted to BIA for recording, but no consent or approval is required. 
All other assignments, including assignments to affiliated entities or 
companies, require consent and approval (unless exempted under FR 
169.207(b)).
    Comment: A tribal commenter stated that it has been the practice in 
the energy industry for companies to obtain rights-of-way and then 
``flip'' them at a large profit. Several other commenters pointed out 
that grants are currently freely assignable and stated that free 
assignability should continue because obtaining consent will be time-
consuming, costly, and will significantly deter acquisition of rights-
of-way on Indian land. A commenter stated that rights-of-way are 
negotiated with the understanding that the grantee may assign rights to 
other entities or mortgagors, and that the availability of this 
operational and financial opportunity is partially what makes the 
process of seeking a right-of-way worthwhile.
    Response: The final rule provides that a grantee may assign a 
right-of-way only with consent and approval, unless other conditions 
apply, including that the grant expressly allows for assignments 
without further consent or approval. These procedures are necessary for 
all rights-of-way granted after the effective date of these regulations 
in order to ensure BIA is aware of authorized users of Indian land. If 
assignability is important to the grantee, the grantee should negotiate 
and pay for this right.
    Comment: One commenter stated that the rule should allow the 
parties to waive consent to assignments and

[[Page 72526]]

mortgages, in addition to waiving BIA approval.
    Response: The final rule allows the landowners to negotiate for a 
grant that expressly allows for assignments and mortgages without 
further consent.
    Comment: A commenter suggested ensuring BIA is kept informed by 
providing that if the assignee fails to provide to BIA the assignment 
with supporting documentation within a month of finalizing the 
assignment, then the assignment is subject to cancellation.
    Response: If BIA approval of the assignment is required, BIA will 
have documentation of the assignment. The final rule adds, for those 
circumstances in which BIA approval is not required, that the assignee 
and grantee must provide BIA with the documentation within 30 days of 
the assignment.
    Comment: A tribal commenter suggested adding that the assignee must 
certify that its use of the right-of-way will remain the same as under 
the original right-of-way.
    Response: The additional suggested language is unnecessary because 
the assignee will be bound by the terms of the original grant 
regardless of whether the grantee provides a certification.
    Comment: A few commenters suggested requiring notice to landowners 
of any proposed assignment so they may negotiate an assignment fee.
    Response: The rule requires consent for assignments in almost all 
instances; this provides landowners with the opportunity to negotiate 
for any additional compensation or assignment fee.
    Comment: A commenter requested reducing the timeframe for BIA 
approval from 30 days to 20 days. Several tribal commenters stated that 
an assignment should be ``deemed approved'' if the BIA fails to act 
within the required timeframe.
    Response: Assignments may not be deemed approved because they are, 
as a matter of law, equivalent to a new grant. The final rule retains 
the time for BIA approval at 30 days because the timeframes are 
intended to be outer bounds.
    Comment: A few tribal commenters stated that any assignment that 
would reduce the coverage of the bond should be a ground for 
disapproving an assignment. A few other tribal commenters suggested 
adding that BIA may disapprove an assignment if it determines the 
assignee is not capable of performing the terms and conditions of the 
right-of-way.
    Response: The regulations impose certain requirements for bonding. 
If the assignee cannot meet those requirements, that failure could 
subject the grant to cancellation. The assignee must agree to be bound 
by the terms of the grant, which would include bonding requirements. 
BIA has discretion to deny an assignment if it determines that the 
assignee is not capable of performing the terms and conditions of the 
right-of-way and if that amounts to a compelling reason to deny the 
assignment.

7. Mortgages

    Comment: A few commenters stated that mortgaging of rights-of-way 
should not be permitted because they are not possessory interests. A 
tribal commenter stated that mortgaging a right-of-way interest is a 
new concept. One stated that mortgaging should be authorized only if 
there is ``compelling empirical evidence'' that such mortgages are 
necessary for Indian landowners to benefit economically. A few tribal 
commenters noted that the regulations are silent on issues of default, 
sale, or foreclosure on approved mortgages and expressed concern about 
what consequences foreclosure on the right-of-way interest may have on 
the Indian landowners. This tribal commenter stated that the 
requirement to obtain landowner consent for a mortgage is 
impracticable.
    Several commenters stated that mortgaging of the rights-of-way 
should be permitted without consent or BIA approval, unless the grant 
includes language to the contrary, because this is the current approach 
and that providing otherwise would be an ``unworkable limitation.'' 
These commenters state that requiring landowner consent and BIA 
approval add unnecessary burdens, and that when a grant is issued, it 
is with the understanding that the grantee may transfer rights to 
mortgagors and the availability of these operational and financial 
opportunities is what makes the process of seeking a grant worthwhile. 
One commenter stated, for example, that public utility mortgaging 
usually includes all facilities and interests owned by the utility, and 
this regulation would interfere with such financing. A commenter stated 
that the consent and approval requirements will ``materially restrict 
development on Indian lands'' because pipeline companies and others 
will be unable to obtain the borrowing base mortgages that are standard 
in the industry for financing and hedging against price volatility. 
These commenters point out that since the mortgage encumbers only the 
grantee's interest, and not the interest of the Indian landowner, 
consent and approval are unnecessary.
    Response: The mortgage of a right-of-way grant is a mortgage of the 
grantee's right, it is not mortgaging the underlying Indian land. 
Mortgages of rights-of-way is not a new concept; such arrangements 
already exist. If a foreclosure of the mortgage were to occur, then an 
assignment of the grant would be necessary to reflect the name of the 
new grantee. While the mortgage does not directly impact the Indian 
land, it does potentially indirectly impact that land because it 
represents a conveyance of the interest in the right-of-way grant. As 
such, it requires BIA approval.
    Comment: Several tribal commenters recommended that a mortgage be 
deemed approved if BIA fails to act on the request to mortgage within 
the timeframe. A tribe stated that this is necessary to prevent 
avoidable delays from affecting tribal economic development and 
community planning.
    Response: The final rule does not incorporate a requirement that 
mortgages be deemed approved if BIA fails to act within the established 
timeframes because affirmative BIA approval is often required by 
mortgagees and lenders even if the regulations were to provide for a 
deemed approved process.
    Comment: One tribal commenter stated that this section should refer 
to tribal laws that may apply to mortgages.
    Response: The general section at FR 169.009 establishes that tribal 
law applies.
    Comment: A commenter stated that consent of ``grantee's sureties'' 
should be required only where the security document requires the surety 
to approve a mortgage transaction.
    Response: The final rule clarifies that BIA must review only 
whether the sureties for the bonds required for the right-of-way have 
consented.
    Comment: A commenter opposed the provision allowing BIA to consider 
the purpose of the use of the mortgage proceeds in making its decision 
to approve the mortgage. The commenter stated that it seems far-
reaching to require the grantee to disclose this information.
    Response: The final rule retains this provision to protect the 
interests of Indian landowners.
    Comment: A few tribal commenters suggested changing the approval 
sections to state that BIA may approve a right-of-way unless the listed 
circumstances exist.
    Response: The proposed and final rules state that BIA may 
disapprove the right of way only if the listed circumstances exist in 
order to provide certainty and predictability to applicants.

[[Page 72527]]

    Comment: A commenter suggested adding to the list of factors for 
disapproval that the mortgage ``would reduce the coverage of the 
performance bond or alternative form of security.''
    Response: The final rule clarifies that the consent of the sureties 
for the bond is required.

Subpart D--Effectiveness

    Comment: A few commenters (including the Western Energy Alliance) 
stated that the right-of-way document should be effective 30 days after 
the date it is granted rather than immediately and that, if an 
administrative appeal is filed, the effectiveness of the grant should 
be stayed because of the potential issues if an immediately effective 
right-of-way is later determined not to be effective. These commenters 
stated that the grantee may expend significant capital in improvements 
in the right-of-way only to learn, years later, that it does not have 
the right-of-way.
    Response: The final rule does not adopt the proposed approach, 
making the grant effective immediately to provide certainty and promote 
economic productivity of Indian land. Otherwise, frivolous appeals may 
tie up the land's productivity. Grantees may weigh any potential issues 
if the grant is later determined not to be effective in their decision 
on whether to invest while the appeal is pending and whether to file 
for an injunction.
    Comment: One commenter stated that the effective date should be the 
date of execution, with the approval having a retroactive effect.
    Response: The right-of-way is not effective until BIA grants it.
    Comment: Several tribal commenters stated that PR 169.302 should 
allow for recording of a memorandum of right-of-way, rather than the 
right-of-way grant, where the parties wish to keep the details of the 
grant confidential.
    Response: This is a broader issue regarding title records, which is 
governed by another regulation, 25 CFR 150.11. That provision will 
continue to govern this issue.
    Comment: A tribal commenter requested an editorial change because 
the LTRO does not necessarily possess jurisdiction, requesting instead 
that the LTRO office be the one ``that administers land transactions 
for the Indian land which is the subject of the right-of-way.''
    Response: The terminology generally used refers to LTRO 
``jurisdiction'' to refer to the geographical area, rather than to 
indicate any decision-making authority over the area. See 25 CFR 150.4.
    Comment: A tribal commenter objected to having to record grants in 
the LTRO for tribal utilities that are not separate entities, because 
where the tribe itself provides the utility on tribal land, there is no 
right-of-way involved.
    Response: The final rule retains the requirement to record grants 
in the LTRO, even for tribal utilities that are not separate entities, 
to ensure that there is a record of who is validly on the land.
    Comment: A tribal commenter stated that the regulations should 
allow for recordation in tribally operated title record systems. A 
county commenter stated that rights-of-way should be recorded in the 
county recorder's office, in addition to the LTRO.
    Response: Parties may record documents in tribally operated record 
systems and/or county recorder's offices, but the final rule requires 
recording in the LTRO because the LTRO is the official record of title 
for land held in trust or restricted status by the United States.
    Comment: A commenter requested clarification on the ramifications 
of failing to record a document in the LTRO. The commenter requested 
adding to the regulations that BIA's failure or neglect to timely 
record instruments with the LTRO shall not affect the validity of the 
grant or other instrument.
    Response: The right-of-way is effective when granted; recording 
does not affect the right-of-way grant's validity.

 1. Appeal Rights

    Comment: Several commenters stated that applicants should have the 
right to appeal all decisions, and should receive notice of the right 
to appeal.
    Response: In response to these comments, the final rule allows 
applicants to appeal denials of right-of-way grants and right-of-way 
documents. The leasing regulations limit the opportunity to appeal a 
denial of a lease to the landowners only, but rights-of-way are 
fundamentally different in that they could impact a number of 
landowners across several tracts, and here several commented that 
right-of-way applicants should be entitled to appeal, so the final rule 
allows for applicant appeals.

2. Compelling BIA Action (PR 169.304/FR 169.304)

    Comment: A commenter requested that the rule impose a timeframe on 
BIA to notify the applicant of receipt of a complete application, 
because the timeframes do not begin to run until the application is 
complete. This commenter also expressed concern about whether BIA, and 
compacting/contracting tribes, could meet the timelines. Other 
commenters requested removing discretionary timeframes for BIA actions, 
providing no more than 60 or 120 days for BIA to act, and allowing any 
party to compel action. Several commenters suggested this section would 
be streamlined by allowing BIA 120 days to act and deeming the document 
approved if the BIA fails to act within the given timeframe.
    Response: Based on our past experience, the timelines are 
reasonable, and provide certainty to applicants as to when a decision 
will be issued. The final rule does not incorporate a ``deemed 
approved'' approach for new rights-of-way because BIA is statutorily 
required to review and issue a determination of whether to grant 
rights-of-way over and across Indian land.
    Comment: A tribal utility commenter suggested adding that BIA will 
be responsible for any losses that accrue due to a delay in approval of 
a right-of-way.
    Response: The regulations provide a mechanism to compel BIA action 
if BIA does not meet the deadline for issuing a decision. Rather than 
making the agency responsible for losses resulting from a delay, the 
new rule adds certainty to timelines to allow applicants to better plan 
and avoid losses associated with timing.
    Comment: One tribal commenter and a few other commenters suggested 
adding a ``not to exceed'' timeframe in the BIA Director's order 
establishing a timeframe for the Regional Director or Superintendent to 
issue a decision.
    Response: The final rule does not add a ``not to exceed'' timeframe 
because the rule maintains the BIA Director's flexibility and 
discretion to manage priorities.
    Comment: A few commenters suggested revising paragraph (c) to 
provide that ``either party'' may file a written notice to compel 
action, rather than requiring both parties to file a notice.
    Response: The final rule incorporates this requested change.
    Comment: A commenter asked for clarification as to whether the BIA 
Director would be making a decision or merely compelling BIA to make a 
decision.
    Response: The rule allows for the BIA Director to do either, as 
appropriate.
    Comment: A commenter stated that PR 169.304(g) should be deleted 
because there is no reason to prevent a party from availing itself of 
the process in 25 CFR 2.8 to compel action.
    Response: This rule provides an alternative process intended to 
supplant

[[Page 72528]]

25 CFR 2.8 entirely, so a party is not required to submit a Sec.  2.8 
demand letter giving the official a certain time period to act before 
allowing an appeal. We acknowledge that the formal adjudication process 
before the Interior Board of Indian Appeals may not be the most 
appropriate or expeditious process when a BIA official fails to meet 
regulatory deadlines. Our hope is that inserting a supervisory 
official, the BIA Director, into the process will obviate the need for 
any further relief; and we may consult with tribes on the Board's role 
with respect to instances of BIA inaction in the future.

3. Appeal Bond

    Comment: A commenter stated that the landowners should always be 
required to post an appeal bond because the right-of-way decision is 
not stayed, and that the provision stating that a bond is not required 
if the tribe waives it should be deleted.
    Response: The final rule does not require landowners to post appeal 
bonds because the Department's trust obligation is to the landowner. 
Further, the rule allows for the opportunity for more front-end 
negotiations, which may result in fewer appeals.
    Comment: A commenter requested an additional provision establishing 
a 60-day timeframe for BIA to issue a decision on an appeal of a right-
of-way decision, similar to 25 CFR 162.473.
    Response: The final rule adds this provision at FR 169.412.

Subpart E--Compliance and Enforcement

    Comment: One tribal commenter stated its strong opposition to 
deletion of the affidavit of completion requirement, stating that the 
requirement serves a useful purpose of notifying tribes and BIA when 
construction work is complete, facilitating tribes' and BIA's ability 
to inspect the completed right-of-way construction to ensure it 
complies with the grant.
    Response: The final rule removes this provision, but tribes are 
free to negotiate with applicants to require filing notice of 
completion of construction work for any particular grant and tribal 
inspection of the completed right-of-way.
    Comment: A commenter questioned whether multiple sections 
throughout the regulation that require compliance with tribal law will 
mean that the grantee is in violation of the grant if it challenges the 
authority of the tribe's jurisdiction to impose certain laws.
    Response: The grantee may be in violation of a grant if it 
challenges the authority of the tribe's jurisdiction to impose certain 
laws, depending upon the circumstances.
    Comment: A commenter said that the rule contains unworkable 
deadlines for a grantee to vacate the property after cancellation of a 
grant.
    Response: The order to vacate may be stayed if the grantee files an 
appeal.
    Comment: A commenter requested recognition in the rule or preamble 
that electric transmission system providers have vegetative management 
obligations under Federal reliability standards that may require them 
to act outside the right-of-way boundaries to remove vegetation in 
specific incidences, and that these actions should not be subject to 
enforcement action for trespass.
    Response: Reasonable and appropriate actions taken by grantees, 
such as utility providers, outside the boundaries of the right-of-way 
to comply with Federal requirements for vegetative management will not 
be considered trespass.
    Comment: A commenter suggested deleting ``unauthorized new 
construction'' and instead stating that any changes in use not 
permitted in the grant may result in enforcement action.
    Response: FR 169.401 specifies that any changes in use not 
permitted in the grant are subject to enforcement.
    Comment: A tribal commenter requested broadening Sec.  169.401 to 
apply to the violation of the ``terms and conditions of a right-of-way 
document'' rather than just a grant.
    Response: The final rule specifies ``right-of-way document.''
    Comment: The commenter requested clarification to confirm that the 
rule does not limit any existing property rights or causes of action.
    Response: We agree that the rule does not limit any existing 
property rights or causes of action; moreover, FR 169.413 states that 
Indian landowners may pursue any available remedies under applicable 
law.
    Comment: Several tribal commenters stated that the rule should 
clarify that the tribe with jurisdiction may investigate non-compliance 
in the same manner and to the same extent as the BIA, within the 
tribe's inherent sovereign rights. These commenters stated that the 
rule should explicitly provide for this right no matter how the 
noncompliance comes to light (not just upon the complaint of the 
landowner).
    Response: The final rule adds that the tribe may investigate 
compliance consistent with tribal law. The rule does not impose an 
obligation on the tribe to investigate.
    Comment: A commenter suggested stating only ``applicable law'' for 
notice requirements, rather than ``applicable tribal law.''
    Response: The final rule retains ``tribal law'' for specificity.
    Comment: A commenter stated that the rule should define the term 
``reasonable notice'' for entry onto the right-of-way, particularly for 
rights-of-way used by the oil and gas industry, because entry without 
significant advanced notice could pose health and safety risks. Several 
commenters stated that landowners should always have the right to enter 
their own land to inspect and protect, without prior notice or 
approval.
    Response: Reasonable notice varies based on the circumstances. 
Landowners generally have the right to enter and inspect and protect 
without prior notice or approval so long as it is consistent with the 
terms and the conditions of the grant and does not interfere with 
grantee's efforts to carry out the purpose of the grant. Nevertheless, 
we encourage landowners to provide notice prior to entry for safety 
reasons.
    Comment: Several tribal commenters suggested adding a definite 
timeframe, such as 30 days, rather than ``promptly'' for BIA to 
initiate an investigation when notified of an issue.
    Response: Because BIA's ability to investigate potential violations 
varies with the availability of resources, the final rule does not add 
a specific timeframe.

1. Abandonment

    Comment: A tribal commenter stated that an investigation at PR 
169.402 does not seem appropriate if the grantee voluntarily 
relinquishes or abandons his interest.
    Response: The final rule clarifies that ``abandonment'' includes an 
act indicating an intent to give up and never regain possession of the 
right-of-way. Investigation may be appropriate to determine whether an 
act has occurred demonstrating an intent to give up and never regain 
possession of the right-of-way.
    Comment: An electric transmission commenter stated that there are 
instances in which it needs to acquire rights-of-way but not use them 
for several years, e.g., in advance of construction or planned use 
while budgetary or environmental processes are undertaken. The 
commenter requested allowing the grantee to avoid cancellation for non-
use by submitting written notice to the BIA that continued availability 
is essential and there is no intent to abandon the right-of-way.
    Response: The grantee and landowner may negotiate such terms in the 
grant.

[[Page 72529]]

2. Negotiated Remedies (PR 169.403/FR 169.403)

    Comment: A few tribal commenters supported the provision allowing 
the parties to establish negotiated remedies. One tribal commenter 
suggested that the rule should allow for negotiated remedies even for 
pre-existing grants that are silent on the issue.
    Response: Adding negotiated remedies to a pre-existing grant that 
is silent on the issue would require an amendment to the grant.
    Comment: A few commenters expressed concern with PR 169.403(e), 
which allows violations to be addressed by a tribe or resolved in 
tribal court but noted that many tribal agreements already incorporate 
these requirements. A tribal commenter stated strong support for 
allowing violations and disputes to be resolved by tribal court or 
through alternative dispute resolution.
    Response: The rule lists this forum as an option for the grantee 
and landowners to consider when negotiating a grant.
    Comment: An energy industry commenter stated that landowners may 
not legally ``terminate'' a Federal grant because the landowners are 
not a party to the grant. Likewise, this commenter stated that BIA does 
not have authority to permit landowners to pursue remedies under tribal 
law for violations of federally granted interests.
    Response: The termination is, in essence, a withdrawal of the 
landowners' continued consent, which is required by statute. Further, 
because the Secretary grants rights-of-way subject to such conditions 
as he may prescribe, the Secretary may approve of a grant with a 
condition allowing a tribe unilaterally to terminate a grant.
    Comment: A few commenters suggested that the rule provide that the 
grantee negotiate solely with BIA regarding negotiated remedies, for 
efficiency and consistency, in situations involving multiple 
landowners.
    Response: The remedies are negotiated between the grantee and the 
landowner because the landowner is the beneficial owner of the land.
    Comment: A tribal commenter stated that PR 169.403 should add that 
the BIA will accept the tribal government's decision on enforcement. 
Several commenters suggested adding that BIA will accept the decision 
of the other forums unless it violates the trust responsibility. A few 
commenters questioned how BIA will determine whether to defer to 
ongoing actions or proceedings.
    Response: If the parties are addressing a compliance issue in 
tribal court or other court of competent jurisdiction, through a tribal 
governing body or an alternative dispute resolution method, BIA 
generally will wait for those proceedings to close and defer to the 
outcome.
    Comment: Several tribal commenters noted that the negotiated 
remedies must be stated in the ``tribe's consent,'' but that the phrase 
is an undefined term, beyond the requirement that it be in the form of 
a tribal authorization. The tribe notes that the negotiated remedies 
would be in the tribal right-of-way agreement, rather than in the 
tribal resolution, and therefore requests clarifying ``right-of-way 
agreement.''
    Response: The final rule clarifies that the consent may include a 
written agreement. See FR 169.107.
    Comment: Several commenters stated that a notification to sureties 
or mortgagees is a private matter determined by agreement between the 
party and surety or mortgagee and should not be addressed in the rule.
    Response: The surety must be notified because it is the holder of 
the security, which ultimately protects the trust land. The final rule 
deletes ``mortgagee.''
    Comment: A tribal commenter requested that PR 169.403(d) clarify 
that the remedies are in addition to BIA's cancellation remedy by 
stating ``unless otherwise agreed to by the Indian landowners in their 
consents.''
    Response: The right-of-way grant will incorporate any conditions in 
the consent of the Indian landowners.

3. BIA Enforcement (PR 169.404-169.405/FR 169.404-405)

    Comment: A tribal commenter stated that PR169.404 should require 
consultation with the impacted tribe during the determination of 
whether there has been a violation and how the violation can be cured. 
A commenter stated that BIA should be required to consult with the 
grantee, rather than just the landowners, before taking enforcement 
actions.
    Response: The final rule adds that the Department will communicate 
with the Indian landowners in determining whether a violation occurred. 
The final rule does not accept the suggestion to require BIA to consult 
with the grantee because the Department's trust responsibility is to 
the landowners.
    Comment: A commenter stated that individual Indian landowners 
should receive actual, rather than constructive, notice of the 
violations. A few commenters stated that the compliance and enforcement 
provisions throughout should require actual notice, rather than 
constructive notice to individual Indian landowners.
    Response: The final rule adds that BIA will provide actual notice 
of cancellations to the landowners. Only the grantee receives notices 
of violation because the violation may be cured and have no impact on 
the grant or landowner.
    Comment: Several tribal commenters requested the inclusion of 
deadlines for BIA to determine if there has been a violation (within 90 
days of initiating the investigation) and to send the notice of 
violation to the grantee. The commenters stated that BIA should be 
required to adhere to strict timeframes when notified of right-of-way 
issues to fulfill its trust responsibility, especially given that 
right-of-way violations have been a historical and ongoing problem in 
Indian country. A few commenters stated that the rule should impose 
concrete requirements for BIA enforcement, rather than affording it 
latitude and discretion in determining what enforcement actions to 
take.
    Response: Timeframes for investigation and enforcement depend upon 
the nature of the violation. Some violations will take more time to 
investigate than others; however, the final rule adds a section 
clarifying that BIA may take emergency action if there is a threat to 
Indian land.
    Comment: A commenter requested that PR 169.404 allow grantees 30 
days, rather than 10 days, to cure any deficiencies because BIA has 
always allowed 30 days in the past, 10 days is ``unrealistic,'' and a 
potential violation in a remote location may require logistical 
coordination not easily accomplished within 10 days.
    Response: The grantee may request additional time to cure. See FR 
169.404(b)(2)(iii).
    Comment: A tribal commenter stated that the rule should allow 
tribes to acknowledge and address violations concurrently with BIA in 
the absence of negotiated remedies.
    Response: Tribes may pursue any available remedies under tribal law 
or negotiated remedies.
    Comment: A few commenters stated that this subpart should address 
violations by a tribe or individual Indian landowner.
    Response: The right-of-way grant governs only the grantee's 
actions; therefore, no enforcement process against landowners is 
needed.
    Comment: A commenter suggested deleting PR 169.404(b) stating that 
the notice of violation may order the grantee to cease operations, 
because the grantee must first be afforded the opportunity to cure.
    Response: In certain circumstances, it may be appropriate for the 
notice of

[[Page 72530]]

violation to require immediate cessation of operations. This provision 
gives BIA the discretion to determine whether the circumstances warrant 
immediate cessation, or cessation within another timeframe, as 
necessary to protect the trust resource. In FR 169.404(b)(2)(i), the 
notice provides the opportunity to cure.
    Comment: A few commenters stated that PR 169.405(c)(4) should 
clarify that the time to vacate the property may be extended to 
accommodate the removal of infrastructure or instead provide that 
removal must occur within a ``reasonable time.''
    Response: The final rule retains 31 days as the default, but 
provides that parties may include different time periods in the grant 
and that longer time periods may be provided in extraordinary 
circumstances.
    Comment: A commenter pointed out that PR 169.404(d) states that the 
grantee will be responsible for obligations in the grant until the 
grant expires, or is terminated, or is canceled, but there may be 
reclamation obligations that survive the end of the grant. The 
commenter stated that BIA should clarify that the grantee will be 
entitled to access the right-of-way to fulfill these ongoing 
obligations.
    Response: FR 169.404(d) clarifies that there may be outstanding 
obligations that survive the end of the grant. FR 169.410 clarifies 
that the grantee may access the land to perform outstanding 
obligations.
    Comment: A tribal commenter suggested revising PR 169.405 to 
provide that the right-of-way documents negotiated by the tribe and 
grantee are included in the term ``grant'' for the purpose of 
establishing the required time period to cure and establish available 
remedies.
    Response: The final rule clarifies the definition of ``grant'' to 
include any changes made by right-of-way documents.
    Comment: A commenter stated that the interest rate at Sec.  169.406 
is ``unusually high.''
    Response: The interest rate in 169.406 is the rate established by 
the Department of Treasury under the Debt Collection Act.

4. Late Payment Charges (PR 169.407/FR 169.407)

    Comment: One commenter asked whether life tenants are entitled to a 
portion of the proceeds under PR 169.407.
    Response: Life tenants are free to negotiate if they wish to be 
entitled to a portion of the proceeds.
    Comment: Several commenters requested amending PR 169.407 to 
provide that only landowners are entitled to late payment proceeds or 
trespass damages because the grantee may pursue a separate action for 
damage to personal property if necessary.
    Response: The final rule deletes ``grantee'' to provide that the 
landowners will receive proceeds if not specified in the applicable 
document.

5. Cancellation for Non-Use or Abandonment (PR 169.408/FR 169.408)

    Comment: A commenter stated that the rules should provide tribes 
authority to trigger cancellation for abandoned rights-of-way in 
accordance with self-governance.
    Response: Under FR 169.402(a), the landowner may notify BIA of non-
use or an abandonment to trigger investigation and ultimately 
cancellation.
    Comment: A commenter stated that this section should require a 
right-of-way to be automatically terminated, rather than saying ``BIA 
may cancel'' if it is abandoned. A few tribal commenters stated that 
the Brandt decision of the U.S. Supreme Court (Marvin M. Brandt 
Revocable Trust v. U.S., 134 S.Ct. 1257 (2014)) requires forfeiture, 
rather than just forfeiture in the case of abandonment. Several tribal 
commenters suggested adding that non-use or abandonment cannot be 
cured.
    Response: The final rule retains BIA discretion in cancellation 
because additional steps are required for due process before the 
cancellation is effective. The Brandt case applies to abandonment of 
rights-of-way granted through public (not Indian) land under the 
General Right-of-Way Act of 1875, 43 U.S.C. 934. It is therefore 
inapplicable to rights-of-way under these regulations.
    Comment: A commenter suggested adding that cancellation may occur 
if the grantee fails to respond to the notice. The commenter also 
stated that the notice should notify the grantee of the right to appeal 
under part 2, including the right to appeal the appeal bond, if 
required.
    Response: The final rule states that failure to correct the basis 
for the cancellation includes a failure to respond, but adds a 
provision stating that the cancellation notice will include a notice of 
right to appeal under part 2. There are no appeals of appeal bonds.
    Comment: A tribal commenter suggested separating non-use from 
abandonment in PR 169.408 to clarify the difference between the two 
processes (i.e., if a grantee expressly abandons the right-of-way, BIA 
need not give 30 days written notice).
    Response: The final rule redrafts this section to distinguish 
between abandonment and non-use of the right-of-way and sets forth 
different processes for each.
    Comment: A commenter questioned why 30 days is permitted to respond 
to a notice of non-use, while only 10 days is permitted for response to 
a notice of violation.
    Response; The response period for notices of violation is 10 
business days (FR 169.404), but is followed up with a cancellation 
letter (FR 169.405) that provides that cancellation will not be 
effective for 31 days. The 30-day period in the case of non-use or 
abandonment is immediately prior to cancellation.
    Comment: A few tribal commenters stated that a 2-year non-use 
period is excessive, and suggested 6 months instead.
    Response: The 2-year period affords sufficient time to establish 
that there is, in fact, non-use rather than a seasonal fluctuation in 
activity.
    Comment: A commenter requested explicitly describing unauthorized 
uses to include piggybacking, overburdening, holdovers, and other 
unallowable uses that qualify as trespass.
    Response: The final rule clarifies what piggybacking is 
unallowable, including overburdening (see FR 169.217), and when 
holdovers will be subject to enforcement for trespass (see FR 169.410). 
The definition of ``trespass'' addresses all remaining situations.
    Comment: A tribal commenter requested a mandatory mechanism for 
grantees to return roads or highways to a tribal landowner upon the 
written request of the tribe.
    Response: The final rule provides that the grant may address the 
disposition of permanent improvements the grantee constructs; this 
allows the Indian landowners and applicant to negotiate as to how 
permanent improvements should be handled.

6. BIA Enforcement Against Holdovers (PR 169.410/FR 169.410)

    Comment: A commenter stated that because its existing right-of-way 
grants are silent on the extension of the easement by holdover, the 
rule increases the risk that holdover grantees will be deemed to be in 
trespass, even where they are engaged in negotiations with the Indian 
landowners. Several commenters suggested stating that the grantee will 
not be considered to be in trespass while BIA is considering its 
application for a right-of-way, when the decision is on appeal, or the 
grantee has notified BIA that they are engaged in good faith 
negotiations. One commenter stated that, under 5 U.S.C. 558(c), the 
rule must allow for a holdover period while a renewal application is 
under

[[Page 72531]]

consideration by BIA. A tribal commenter suggested clarifying that 
grantees who are unauthorized holdovers are trespassers.
    Response: The final rule states that while holdovers are not 
permitted, BIA will not enforce against holdover grantees if the 
parties notify BIA that they are in good faith negotiation. To ensure 
that the parties do not take advantage of that negotiation time to 
extend what would have otherwise been a more limited term, the 
negotiation time during which the grant is held over is counted against 
any new grant term.
    Comment: A tribal commenter stated that it may be more helpful to 
clearly define what happens if a grantee remains in possession after 
expiration of a right-of-way term and clarify that the renewal will be 
effective on the approval date and will not relate back to the date of 
expiration.
    Response: The grant is effective when BIA issues it, and the 
effective date does not relate back, but if a grant is ultimately 
renewed, then BIA generally will not pursue trespass for the time of 
negotiations.

7. Trespass (PR 169.412/FR 169.413)

    Comment: A commenter requested that only willful trespass be 
subject to enforcement action and that BIA consult with the grantee and 
landowners prior to initiating enforcement actions for any accidental 
or incidental trespass.
    Response: The proposed rule and final rule definition of 
``trespass'' is consistent with the definition of trespass on Indian 
land in leasing, forestry, and agricultural contexts. See e.g., 25 CFR 
166.801. No compelling reason exists to differentiate between 
intentional and unintentional trespass in the right-of-way context.
    Comment: A commenter requested clarification on whether the 
available remedies under applicable law referred to in PR 169.413 
(trespass) are in addition to the remedies in PR 169.403 (negotiated 
remedies).
    Response: The provision at FR 169.413 addresses the absence of a 
grant, so there is no document in which negotiated remedies would be 
set out.
    Comment: A tribal commenter requested that the rule acknowledge 
that tribal governments may enforce tribal laws against trespass and 
collect damages, and that BIA will assist the tribal governments in 
enforcing the law.
    Response: The final rule adds to 169.413 ``including applicable 
tribal law'' in response to this comment.
    Comment: A commenter requested clarifying that one who refuses to 
obtain a right-of-way but uses the Indian land is in trespass.
    Response: The provision at FR 169.413 addresses situations in which 
someone refuses to obtain a right-of-way.
    Comment: A tribal commenter requested that the rule provide for BIA 
involvement in resolving disputes between tribes and applicants that 
have been occupying tribal land without authorization. The commenter 
stated that methods of determining past amounts due are often an 
insurmountable sticking point without BIA involvement.
    Response: BIA will offer technical assistance to an Indian 
landowner upon request.
    Comment: A commenter asked whether the rule could enforce a 
prohibition against ground-disturbing activities that disturb cultural 
sites.
    Response: FR 169.125(c)(4) provides that if historic properties, 
archaeological resources, human remains, or other cultural items not 
previously reported are encountered during the course of any activity 
associated with this grant, all activity in the immediate vicinity of 
the properties, resources, remains, or items will cease and the grantee 
will contact BIA and the tribe with jurisdiction over the land to 
determine how to proceed and appropriate disposition.
    Comment: A commenter stated that the regulations should protect 
tribes who oppose energy development chemicals being used in the right-
of-way. Another suggested clarifying that trespass may include 
pollution or environmental spills.
    Response: FR 169.125(c)(6) provides for indemnification. Pollution 
and environmental spills are violations of the grant and any applicable 
law. Pollution or environmental spills may constitute trespass if the 
pollutants or contaminants enter other Indian land not covered by the 
right-of-way grant.

Subpart F--Service Line Agreements (PR Subpart F (169.501-169.504)/
Final Subpart B (169.51-169.57))

    Comment: Several commenters suggested changes to the definition of 
``service line.'' Several electric cooperative commenters strongly 
disagreed with deleting the language restricting service lines to a 
certain voltage because of their concern that it would consolidate 
local electric distribution cooperatives with electric transmission 
power providers. Some suggested retaining the current limits of 14.5 kv 
and 34.5 kv and many in the electric industry suggested a limitation to 
100 kV. One tribal commenter also opposed deleting the voltage 
limitation because of a concern that it creates a loophole and makes 
enforcement more difficult.
    While some suggested a more limited definition, several suggested 
an expansive definition that would apply to any distribution facilities 
on the reservation that provide service only to customers on the 
reservation, or any facility connected to a main line or other line 
necessary for providing utility service to customers. One suggested it 
be defined as uses that are not a ``general expansion of the system by 
the provider.'' Many of these comments were aimed at providing relief 
to tribal members requesting utility services and/or to non-profit, 
member-owned distribution cooperatives that provide utility service to 
tribal members. One commenter asserted that the definition of ``service 
line'' should include distribution lines, so that utilities would not 
be required to pay Indian landowners for rights-of-way and State 
utility commissions would not be required to allocate right-of-way 
costs associated with local distribution.
    Many commenters requested more clarification on what qualifies as a 
distribution line requiring a right-of-way and what qualifies as a 
service line. Some stated that if a line is an extension of service to 
a certain property, it should be considered a service line, regardless 
of whether it is a water line, sanitary and storm sewer line, electric 
line or telecommunication line. A few commenters suggested deleting the 
word ``home'' to clarify that utility service may also be provided to 
non-residential buildings, while another suggested limiting to those 
lines that provide service to an individual building.
    Response: The final rule clarifies the definition of service line 
in a new subpart B, which is relocated from proposed subpart F with 
changes. The final rule moves the provisions regarding service line 
agreements from subpart F to subpart B to reflect that sequentially, 
the determination of whether a service line agreement or right-of-way 
is appropriate occurs earlier. The current definition of ``service 
line'' includes a restriction of 13.5 kV and 34.5 kV, depending on the 
type of power line. The proposed definition would have eliminated the 
voltage restriction, in order to base the definition instead on the 
purpose of the line (used only for supplying owners or authorized 
occupants or users of land with telephone, water, electricity, gas, 
internet service, or other home utility service). See proposed Sec.  
169.002. The final rule reinserts the kV restriction to ensure that 
service line agreements are not used for power lines for which a

[[Page 72532]]

right-of-way grant would be more appropriate. The expansive definitions 
suggested by commenters are not appropriate because excluding nearly 
all lines from the requirement for just compensation would undermine 
Congress's intent. The final rule adopts a narrow interpretation of 
``service line'' to restrict ``service lines'' to those lines that 
directly provide utility service to a house, business, or other 
structure, rather than lines that are distribution lines, from which 
single service lines may branch off. Once a service line serves 
multiple structures, it exceeds its scope, and becomes a distribution 
line for the purposes of the right-of-way regulations. The final rule 
does not incorporate the suggested language about general expansion of 
the system, because each service line itself could be considered an 
expansion of the system. To provide relief to those in need of electric 
service and those providing electric service, the rule instead provides 
a new, streamlined separate process for non-profit electric 
cooperatives and tribal utilities. An extension of service to a certain 
property would be a service line as long as the extension of service is 
from a main line, transmission line, or distribution line to a single 
property. This is consistent with past practice and the 2006 BIA Right-
of-Way Handbook.
    Comment: Several tribal commenters stated that the rule should 
remove the requirement to record service line agreements with the LTRO 
because it imposes additional burdens, and instead require that they be 
filed with BIA. A tribal commenter stated that the recordation 
requirement is counterintuitive to the purpose of service line 
agreements, intended to be simple agreements between a single utility 
provider and an authorized occupant.
    Response: The LTRO is the official title of record for Indian land 
and recording in the LTRO is necessary to provide notice of activities 
on the land. This is consistent with past practice and mirrors guidance 
provided in the 2006 Handbook.
    Comment: Several electric cooperatives stated that prohibiting a 
service line from being extended from an existing service line, 
resulting in the need to obtain a new right-of-way, has on numerous 
occasions, created hardship for families who cannot construct a home 
nearby family members because they cannot bring power to the home 
without a new right-of-way.
    Response: The final rule is consistent with the BIA Handbook. A 
service line can serve only one structure. A new service line could be 
constructed branching from a right-of-way without requiring a new 
right-of-way if the new service line serves one structure. If more than 
one structure is served by a service line, then a right-of-way is 
required.
    Comment: Several electric cooperatives stated that they should be 
exempt from provisions requiring consent for service lines.
    Response: A service line agreement is executed by the owner(s) or 
authorized user(s) and the applicant; this is sufficient to show 
consent.
    Comment: One commenter stated that service lines may serve an 
entire customer base, rather than just individuals.
    Response: A customer base that is located in one building or 
structure may be served by a single service line, subject to the 
voltage limitations.
    Comment: A commenter stated that requiring compensation for 
placement of service lines needed to provide utilities is not 
appropriate.
    Response: The proposed and final rules do not require compensation 
but the owners or authorized users may negotiate for compensation as 
part of the service line agreement or agree that the service itself is 
compensation.
    Comment: A commenter stated that service lines should expressly 
include rights-of-way among the authorized users, e.g., a right-of-way 
for a pipeline requiring electric service for cathodic protection units 
through a simple electric distribution line. That line should not 
require a full right-of-way application.
    Response: See the discussion on ``piggybacking,'' above.
    Comment: A tribal commenter requested more specification on service 
line agreements and their allowable duration, how they must state the 
dimensions of the service line, whether sub-agreements are possible, 
what maintenance requirements are necessary, etc.
    Response: The landowners (or authorized occupants or users) may 
negotiate these items in the service line agreement.
    Comment: A commenter stated that the term ``applicant'' is 
misplaced because usually the tribe will request the agreement.
    Response: The final rule replaces the term ``applicant'' with 
``utility provider.''
    Comment: A tribal commenter noted that many utility service lines 
have been constructed without agreements, and suggested the rule add 
language to require noncompliant utilities and other entities to enter 
into agreements with the tribal landowners.
    Response: Unauthorized users or occupants of Indian land are 
encouraged to enter into agreements with landowners as they are 
otherwise subject to enforcement for trespass.
    Comment: Several commenters stated that public utilities should be 
considered service lines because they are best able to provide 
affordable electrical and utility service to landowners under the 
service line agreement rather than the more onerous right-of-way 
procedures.
    Response: The final rule allows utility cooperatives certain 
advantages (see above), but requires that they undergo the process for 
obtaining a right-of-way if they do not otherwise meet the definition 
of a ``service line.''
    Comment: One tribal commenter requested clarification that a right-
of-way is not required or allowed for service lines.
    Response: The proposed and final rules clarify the requirements for 
service lines.

III. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is significant because it may raise novel legal or 
policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in E.O. 12866.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements. This rule is also part of the Department's commitment 
under the Executive Order to reduce the number and burden of 
regulations and provide greater notice and clarity to the public.

[[Page 72533]]

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
There is no defined universe of small entities that may be affected by 
this rule because there are a myriad of reasons why an entity may seek 
a right-of-way over or across Indian land; however, we received 
comments on the proposed rule from the following entities, so we 
considered that some may qualify as small entities: State and local 
governments, electric cooperatives, gas and oil companies and 
associations, pipeline companies, power and water utilities, 
telecommunications companies and railroad companies. It is possible 
that some of these are small entities and that have or may seek a 
right-of-way over or across Indian land for a variety of purposes, but 
this rule does not impose any requirements in obtaining or complying 
with a right-of-way that would have a significant economic effect on 
those entities. This rule clarifies the processes and requirements for 
landowner consent and BIA approval and, to the extent the rule imposes 
requirements that were not explicitly required before, the rule allows 
the parties to negotiate otherwise in the grant. For example, many 
grants allow assignments without landowner consent or BIA approval. The 
final rule establishes, as a default, that consent and approval are 
required, but allows parties to agree otherwise and state otherwise in 
the right-of-way grant. (Additionally, the final rule includes a 
blanket exemption for assignments that are the result of a corporate 
merger, acquisition, or transfer by operation of law.) Further, the 
rule minimizes BIA interference with the market by providing that BIA 
will defer to tribes' negotiated compensation values, allowing more 
flexibility in allowing for non-monetary compensation, eliminating the 
need for BIA approval of surveys, and requiring only filing of service 
line agreements. The rule also relaxes requirements for utility 
cooperatives, some of which may qualify as small entities, to encourage 
them to develop Indian land; for example, by providing for waivers of 
compensation requirements and bonding requirements under certain 
conditions.

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. It will not result in the 
expenditure by State, local, or tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year. The 
rule's requirements will not result in a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. Nor will this rule have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of the U.S.-based enterprises 
to compete with foreign-based enterprises because the rule is limited 
to rights-of-way on Indian land.

D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this rule does not 
affect individual property rights protected by the Fifth Amendment nor 
does it involves a compensable ``taking.'' A takings implication 
assessment is therefore not required.

F. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this rule has no 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. This rule 
only concerns BIA's grant of rights-of-way on Indian land.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule has been reviewed to eliminate errors and 
ambiguity and written to minimize litigation; and is written in clear 
language and contains clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' Executive Order 13175 (59 FR 22951, November 6, 2000), 
and 512 DM 2, we have evaluated the potential effects on federally 
recognized Indian tribes and Indian trust assets. During the public 
comment period on the proposed rule from June to November 2014, we held 
several consultation sessions with federally recognized Indian tribes 
and received written input from 70 tribes. We have considered and 
addressed this tribal input in development of the final rule.

I. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., 
prohibits a Federal agency from conducting or sponsoring a collection 
of information that requires OMB approval, unless such approval has 
been obtained and the collection request displays a currently valid OMB 
control number. Nor is any person required to respond to an information 
collection request that has not complied with the PRA. In accordance 
with 44 U.S.C. 3507(d), BIA submitted the information collection and 
recordkeeping requirements of the proposed rule to OMB for review and 
approval and provided the public with the opportunity to submit 
comments on the information collection. BIA received no comments 
addressing the information collection requirements and made no 
revisions to those provisions in the final rule, but did add a new 
information collection requirement (filing past assignments) in 
response to comments. OMB has reviewed and approved the information 
collections in the final rule, which are described below.
    OMB Control Number: 1076-0181.
    Title: 25 CFR 169, Rights-of-Way on Indian Land.
    Brief Description of Collection: This information collection 
requires applicants for, and recipients of, right-of-way grants to 
cross Indian land to submit information to the Bureau of Indian 
Affairs.
    Type of Review: Existing collection in use without OMB control 
number.
    Respondents: Individuals and entities.
    Number of Respondents: 1,550 on average (each year).
    Number of Annual Responses (On Average): 2,200 (for applications); 
50 (for responses to notices of violation); 50 (for responses to 
trespass notices of violations); 1,000 (for filing service line 
agreements); and 1,000 (for filing past assignments).
    Frequency of Response: On occasion.
    Estimated Time per Response: 1 hour (for applications); 0.5 hours 
(for responses to notices of violation); 0.5 hours (for responses to 
trespass notices of violations); 0.25 hours (for filing service line 
agreements); and 0.25 hours (for filing past assignments).

[[Page 72534]]

    Estimated Total Annual Hour Burden: 2,750 hours.
    Estimated Total Non-Hour Cost: $2,200,000.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment because these are 
``regulations . . . whose environmental effects are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will later be subject to the NEPA process, either collectively or 
case-by-case.'' 43 CFR 46.210(j). No extraordinary circumstances exist 
that would require greater NEPA review. This rule does not require BIA 
approval of any new types of major Federal actions, nor does it 
eliminate BIA approval of any types of major Federal actions.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

List of Subjects in 25 CFR Part 169

    Indians-lands, Reporting and recordkeeping requirements, Rights-of-
way.


0
For the reasons stated in the preamble, the Department of the Interior, 
Bureau of Indian Affairs, revises 25 CFR part 169 to read as follows:

PART 169--RIGHTS-OF-WAY OVER INDIAN LAND

Subpart A--Purpose, Definitions, General Provisions
Sec.
169.1 What is the purpose of this part?
169.2 What terms do I need to know?
169.3 To what land does this part apply?
169.4 When do I need a right-of-way to authorize possession over or 
across Indian land?
169.5 What types of rights-of-way does this part cover?
169.6 What statutory authority will BIA use to act on requests for 
rights-of-way under this part?
169.7 Does this part apply to right-of-way grants submitted for 
approval before December 21, 2015?
169.8 May tribes administer this part on BIA's behalf?
169.9 What laws apply to rights-of-way approved under this part?
169.10 What is the effect of a right-of-way on a tribe's 
jurisdiction over the underlying parcel?
169.11 What taxes apply to rights-of-way approved under this part?
169.12 How does BIA provide notice to the parties to a right-of-way?
169.13 May decisions under this part be appealed?
169.14 How does the Paperwork Reduction Act affect this part?
Subpart B--Service Line Agreements
169.51 Is a right-of-way required for service lines?
169.52 What is a service line agreement?
169.53 What should a service line agreement address?
169.54 What are the consent requirements for service line 
agreements?
169.55 Is a valuation required for service line agreements?
169.56 Must I file service line agreements with the BIA?
Subpart C--Obtaining a Right-of-Way

Application

169.101 How do I obtain a right-of-way across tribal or individually 
owned Indian land or BIA land?
169.102 What must an application for a right-of-way include?
169.103 What bonds, insurance, or other security must accompany the 
application?
169.104 What is the release process for a bond or alternate form of 
security?
169.105 What requirements for due diligence must a right-of-way 
grant include?

Consent Requirements

169.106 How does an applicant identify and contact individual Indian 
landowners to negotiate a right-of-way?
169.107 Must I obtain tribal or individual Indian landowner consent 
for a right-of-way across Indian land?
169.108 Who is authorized to consent to a right-of-way?
169.109 Whose consent do I need for a right-of-way when there is a 
life estate on the tract?

Compensation Requirements

169.110 How much monetary compensation must be paid for a right-of-
way over or across tribal land?
169.111 Must a right-of-way grant for tribal land provide for 
compensation reviews or adjustments?
169.112 How much monetary compensation must be paid for a right-of-
way over or across individually owned Indian land?
169.113 Must a right-of-way grant for individually owned Indian land 
provide for compensation reviews or adjustments?
169.114 How will BIA determine fair market value for a right-of-way?
169.115 When are monetary compensation payments due under a right-
of-way?
169.116 Must a right-of-way specify who receives monetary 
compensation payments?
169.117 What form of monetary compensation is acceptable under a 
right-of-way?
169.118 May the right-of-way provide for non-monetary or varying 
types of compensation?
169.119 Will BIA notify a grantee when a payment is due for a right-
of-way?
169.120 What other types of payments are required for a right-of-
way?
169.121 How will compensation be distributed among the life tenants 
and owners of the remainder interests?
169.122 Who does the grantee pay if there is a life estate on the 
tract?

Grants of Rights-of-Way

169.123 What is the process for BIA to grant a right-of-way?
169.124 How will BIA determine whether to grant a right-of-way?
169.125 What will the grant of right-of-way contain?
169.126 May a right-of-way contain a preference consistent with 
tribal law for employment of tribal members?
169.127 Is a new right-of-way grant required for a new use within or 
overlapping an existing right-of-way?
169.128 When will BIA grant a right-of-way for a new use within or 
overlapping an existing right-of-way?
169.129 What is required if the location described in the original 
application and grant differs from the construction location?
169.130 Must a right-of-way grant address ownership of permanent 
improvements?
Subpart D--Duration, Renewals, Amendments, Assignments, Mortgages

Duration & Renewals

169.201 How long may the duration of a right-of-way grant be?
169.202 Under what circumstances will a grant of right-of-way be 
renewed?
169.203 May a right-of-way be renewed multiple times?

Amendments

169.204 May a grantee amend a right-of-way?
169.205 What is the approval process for an amendment of a right-of-
way?
169.206 How will BIA decide whether to approve an amendment of a 
right-of-way?

Assignments

169.207 May a grantee assign a right-of-way?
169.208 What is the approval process for an assignment of a right-
of-way?
169.209 How will BIA decide whether to approve an assignment of a 
right-of-way?

Mortgages

169.210 May a grantee mortgage a right-of-way?
169.211 What is the approval process for a mortgage of a right-of-
way?
169.212 How will BIA decide whether to approve a mortgage of a 
right-of-way?
Subpart E--Effectiveness
169.301 When will a right-of-way document be effective?
169.302 Must a right-of-way be recorded?
169.303 What happens if BIA denies a right-of-way document?
169.304 What happens if BIA does not meet a deadline for issuing a 
decision on a right-of-way document?

[[Page 72535]]

169.305 Will BIA require an appeal bond for an appeal of a decision 
on a right-of-way document?
Subpart F--Compliance and Enforcement
169.401 What is the purpose and scope of this subpart?
169.402 Who may investigate compliance with a right-of-way?
169.403 May a right-of-way provide for negotiated remedies?
169.404 What will BIA do about a violation of a right-of-way grant?
169.405 What will BIA do if the grantee does not cure a violation of 
a right-of-way grant on time?
169.406 Will late payment charges, penalties, or special fees apply 
to delinquent payments due under a right-of-way grant?
169.407 How will payment rights relating to a right-of-way grant be 
allocated?
169.408 What is the process for cancelling a right-of-way for non-
use or abandonment?
169.409 When will a cancellation of a right-of-way grant be 
effective?
169.410 What will BIA do if a grantee remains in possession after a 
right-of-way expires or is terminated or cancelled?
169.411 Will BIA appeal bond regulations apply to cancellation 
decisions involving right-of-way grants?
169.412 When will BIA issue a decision on an appeal from a right-of-
way decision?
169.413 What if an individual or entity takes possession of or uses 
Indian land or BIA land without a right-of-way or other proper 
authorization?
169.414 May BIA take emergency action if Indian land is threatened?
169.415 How will BIA conduct compliance and enforcement when there 
is a life estate on the tract?

    Authority:  5 U.S.C. 301; 25 U.S.C. 323-328; 25 U.S.C. 2201 et 
seq.

Subpart A--Purpose, Definitions, General Provisions


Sec.  169.1  What is the purpose of this part?

    (a) This part is intended to streamline the procedures and 
conditions under which BIA will consider a request to approve (i.e., 
grant) rights-of-way over and across tribal lands, individually owned 
Indian lands, and BIA lands, by providing for the use of the broad 
authority under 25 U.S.C. 323-328, rather than the limited authorities 
under other statutes. This part is also intended to support tribal 
self-determination and self-governance by acknowledging and 
incorporating tribal law and policies in processing a request for a 
right-of-way across tribal lands and defer to the maximum extent 
possible to Indian landowner decisions regarding their Indian land.
    (b) This part specifies:
    (1) Conditions and authorities under which we will consider a 
request to approve rights-of-way over or across Indian land;
    (2) How to obtain a right-of-way;
    (3) Terms and conditions required in rights-of-way;
    (4) How we administer and enforce rights-of-ways;
    (5) How to renew, amend, assign, and mortgage rights-of-way; and
    (6) Whether rights-of-way are required for service line agreements.
    (c) This part does not cover rights-of-way over or across tribal 
lands within a reservation for the purpose of Federal Power Act 
projects, such as constructing, operating, or maintaining dams, water 
conduits, reservoirs, powerhouses, transmission lines, or other works 
which must constitute a part of any project for which a license is 
required by the Federal Power Act.
    (1) The Federal Power Act provides that any license that must be 
issued to use tribal lands within a reservation must be subject to and 
contain such conditions as the Secretary deems necessary for the 
adequate protection and utilization of such lands (16 U.S.C. 797(e)).
    (2) In the case of tribal lands belonging to a tribe organized 
under the Indian Reorganization Act of 1934 (25 U.S.C. 476), the 
Federal Power Act requires that annual charges for the use of such 
tribal lands under any license issued by the Federal Energy Regulatory 
Commission must be subject to the approval of the tribe (16 U.S.C. 
803(e)).
    (d) This part does not apply to grants of rights-of-way on tribal 
land under a special act of Congress specifically authorizing rights-
of-way on tribal land without our approval.


Sec.  169.2  What terms do I need to know?

    The following terms apply to this part:
    Abandonment means the grantee has affirmatively relinquished a 
right-of-way (as opposed to relinquishing through non-use) either by 
notifying the BIA of the abandonment or by performing an act indicating 
an intent to give up and never regain possession of the right-of-way.
    Assignment means an agreement between a grantee and an assignee, 
whereby the assignee acquires all or part of the grantee's rights, and 
assumes all of the grantee's obligations under a grant.
    Avigation hazard easement means the right, acquired by government 
through purchase or condemnation from the owner of land adjacent to an 
airport, to the use of the air space above a specific height for the 
flight of aircraft.
    BIA means the Secretary of the Interior or the Bureau of Indian 
Affairs within the Department of the Interior and any tribe acting on 
behalf of the Secretary or BIA under Sec.  169.008.
    BIA land means any tract, or interest therein, in which the surface 
estate is owned and administered by the BIA, not including Indian land.
    Cancellation means BIA action to end a right-of-way grant.
    Compensation means something bargained for that is fair and 
reasonable under the circumstances of the agreement.
    Consent means written authorization by an Indian landowner to a 
specified action.
    Easement means an interest, consisting of the right to use or 
control, for a specific limited purpose, land owned by another person, 
or an area above or below it, while title remains vested in the 
landowner.
    Encumbered account means a trust account where some portion of the 
proceeds are obligated to another party.
    Fair market value means the amount of compensation that a right-of-
way would most probably command in an open and competitive market.
    Fractional interest means an undivided interest in Indian land 
owned as tenancy in common by individual Indian or tribal landowners 
and/or fee owners.
    Grant means the formal transfer of a right-of-way interest by the 
Secretary's approval or the document evidencing the formal transfer, 
including any changes made by a right-of-way document.
    Grantee means a person or entity to whom the Secretary grants a 
right-of-way or to whom the right-of-way has been assigned once the 
assignment is effective.
    Immediate family means, in the absence of a definition under 
applicable tribal law, a spouse, brother, sister, aunt, uncle, niece, 
nephew, first cousin, lineal ancestor, lineal descendant, or member of 
the household.
    Indian means:
    (1) Any person who is a member of any Indian tribe, is eligible to 
become a member of any Indian tribe, or is an owner as of October 27, 
2004, of a trust or restricted interest in land;
    (2) Any person meeting the definition of Indian under the Indian 
Reorganization Act (25 U.S.C. 479) and the regulations promulgated 
thereunder; and
    (3) With respect to the inheritance and ownership of trust or 
restricted land in the State of California under 25 U.S.C. 2206, any 
person described in paragraph (1) or (2) of this definition or any 
person who owns a trust or

[[Page 72536]]

restricted interest in a parcel of such land in that State.
    Indian land means individually owned Indian land and/or tribal 
land.
    Indian landowner means a tribe or individual Indian who owns an 
interest in Indian land.
    Indian tribe or tribe means an Indian tribe under section 102 of 
the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 
479a).
    Individually owned Indian land means any tract in which the surface 
estate, or an undivided interest in the surface estate, is owned by one 
or more individual Indians in trust or restricted status.
    In-kind compensation means payment is in goods or services rather 
than money.
    Life estate means an interest in property held only for the 
duration of a designated person(s)' life. A life estate may be created 
by a conveyance document or by operation of law.
    LTRO means the Land Titles and Records Office of BIA.
    Map of definite location means a survey plat signed by a 
professional surveyor or engineer showing the location, size, and 
extent of the right-of-way and other related parcels, with respect to 
each affected parcel of individually owned land, tribal land, or BIA 
land and with reference to the public surveys under 25 U.S.C. 176, 43 
U.S.C. 2 and 1764, and showing existing facilities adjacent to the 
proposed project.
    Permanent improvement means pipelines, roads, structures, and other 
infrastructure attached to the land subject to the right-of-way.
    Right-of-way means an easement or a legal right to go over or 
across tribal land, individually owned Indian land, or BIA land for a 
specific purpose, including but not limited to building and operating a 
line or road. This term may also refer to the land subject to the grant 
of right-of-way; however, in all cases, title to the land remains 
vested in the landowner. This term does not include service lines.
    Right-of-way document means a right-of-way grant, renewal, 
amendment, assignment, or mortgage of a right-of-way.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Termination means action by Indian landowners to end a right-of-
way.
    Trespass means any unauthorized occupancy, use of, or action on 
tribal or individually owned Indian land or BIA land.
    Tribal authorization means a duly adopted tribal resolution, tribal 
ordinance, or other appropriate tribal document authorizing the 
specified action.
    Tribal land means any tract in which the surface estate, or an 
undivided interest in the surface estate, is owned by one or more 
tribes in trust or restricted status. The term also includes the 
surface estate of lands held in trust for a tribe but reserved for BIA 
administrative purposes and includes the surface estate of lands held 
in trust for an Indian corporation chartered under section 17 of the 
Indian Reorganization Act of 1934 (25 U.S.C. 477).
    Tribal utility means a utility owned by one or more tribes that is 
established for the purpose of providing utility service, and that is 
certified by the tribe to meet the following requirements:
    (1) The combined Indian tribe ownership constitutes not less than 
51 percent of the utility;
    (2) The Indian tribes, together, receive at least a majority of the 
earnings; and
    (3) The management and daily business operations of the utility are 
controlled by one or more representatives of the tribe.
    Trust account means a tribal account or Individual Indian Money 
(IIM) account for trust funds maintained by the Secretary.
    Trust or restricted status means:
    (1) That the United States holds title to the tract or interest in 
trust for the benefit of one or more tribes and/or individual Indians; 
or
    (2) That one or more tribes and/or individual Indians holds title 
to the tract or interest, but can alienate or encumber it only with the 
approval of the United States because of limitations in the conveyance 
instrument under Federal law or limitations in Federal law.
    Uniform Standards of Professional Appraisal Practice (USPAP) means 
the standards promulgated by the Appraisal Standards Board of the 
Appraisal Foundation to establish requirements and procedures for 
professional real property appraisal practice.
    Us/we/our means the BIA.
    Utility cooperative means a cooperative that provides public 
utilities to its members and either reinvests profits for 
infrastructure or distributes profits to members of the cooperative.


Sec.  169.3  To what land does this part apply?

    (a) This part applies to Indian land and BIA land.
    (b) We will not take any action on a right-of-way across fee land 
or collect compensation on behalf of fee interest owners. We will not 
condition our grant of a right-of-way across Indian land or BIA land on 
the applicant having obtained a right-of-way from the owners of any fee 
interests. The applicant will be responsible for negotiating directly 
with and making any payments directly to the owners of any fee 
interests that may exist in the property on which the right-of-way is 
granted.
    (c) We will not include the fee interests in a tract in calculating 
the applicable percentage of interests required for consent to a right-
of-way.


Sec.  169.4  When do I need a right-of-way to authorize possession over 
or across Indian land?

    (a) You need an approved right-of-way under this part before 
crossing Indian land if you meet one of the criteria in the following 
table:

------------------------------------------------------------------------
                                         then you must obtain a right-of-
            If you are . . .                way under this part . . .
------------------------------------------------------------------------
(1) A person or legal entity (including  from us, with the consent of
 a Federal, State, or local               the owners of the majority
 governmental entity) who is not an       interest in the land, and the
 owner of the Indian land.                tribe for tribal land, before
                                          crossing the land or any
                                          portion thereof.
(2) An individual Indian landowner who   from us, with the consent of
 owns a fractional interest in the land   the owners of other trust and
 (even if the individual Indian           restricted interests in the
 landowner owns a majority of the         land, totaling at least a
 fractional interests).                   majority interest in the
                                          tract, and with the consent of
                                          the tribe for tribal land. You
                                          do not need to obtain a right-
                                          of-way from us if all of the
                                          owners (including the tribe,
                                          for tribal land) have given
                                          you permission to cross
                                          without a right-of-way.

[[Page 72537]]

 
(3) An Indian tribe, agency or           from us, with the consent of
 instrumentality of the tribe, or an      the owners of other trust and
 independent legal entity wholly owned    restricted interests in the
 and operated by the tribe who owns       land, totaling at least a
 only a fractional interest in the land   majority interest in the
 (even if the tribe, agency,              tract, unless all of the
 instrumentality or legal entity owns a   owners have given you
 majority of the fractional interests).   permission to cross without a
                                          right-of-way.
------------------------------------------------------------------------

    (b) You do not need a right-of-way to cross Indian land if:
    (1) You are an Indian landowner who owns 100 percent of the trust 
or restricted interests in the land; or
    (2) You are authorized by:
    (i) A lease under 25 CFR part 162, 211, 212, or 225 or permit under 
25 CFR part 166;
    (ii) A tribal land assignment or similar instrument authorizing use 
of the tribal land without Secretarial approval; or
    (iii) Other, tribe-specific authority authorizing use of the tribal 
land without Secretarial approval; or
    (iv) Another land use agreement not subject to this part (e.g., 
under 25 CFR part 84); or
    (3) You meet any of the criteria in the following table:

------------------------------------------------------------------------
 You do not need a right-of-way if you     but the following conditions
               are . . .                           apply . . .
------------------------------------------------------------------------
(i) A parent or guardian of a minor      We may require you to provide
 child who owns 100 percent of the        evidence of a direct benefit
 trust or restricted interests in the     to the minor child and when
 land.                                    the child is no longer a
                                          minor, you must obtain a right-
                                          of-way to authorize continued
                                          possession.
(ii) Authorized by a service line        You must file the agreement
 agreement to cross the land.             with us under Sec.   169.56.
(iii) An independent legal entity        The tribal governing body must
 wholly owned and operated by the tribe   pass a tribal authorization
 that owns 100 percent of the trust or    authorizing access without BIA
 restricted interests in the land.        approval and including a legal
                                          description, and you must
                                          submit both documents to BIA
                                          for our records.
(iv) Otherwise authorized by law.......  You must comply with the
                                          requirements of the applicable
                                          law.
------------------------------------------------------------------------

Sec.  169.5  What types of rights-of-way does this part cover?

    (a) This part covers rights-of-way over and across Indian or BIA 
land, for uses including but not limited to the following:
    (1) Railroads;
    (2) Public roads and highways;
    (3) Access roads;
    (4) Service roads and trails, even where they are appurtenant to 
any other right-of-way purpose;
    (5) Public and community water lines (including pumping stations 
and appurtenant facilities);
    (6) Public sanitary and storm sewer lines (including sewage 
disposal and treatment plant lines);
    (7) Water control and use projects (including but not limited to, 
flowage easements, irrigation ditches and canals, and water treatment 
plant lines);
    (8) Oil and gas pipelines (including pump stations, meter stations, 
and other appurtenant facilities);
    (9) Electric transmission and distribution systems (including 
lines, poles, towers, telecommunication, protection, measurement and 
data acquisition equipment, other items necessary to operate and 
maintain the system, and appurtenant facilities);
    (10) Telecommunications, broadband, fiber optic lines;
    (11) Avigation hazard easements;
    (12) Conservation easements not covered by 25 CFR part 84, 
Encumbrances of Tribal Land--Contract Approvals, or 25 CFR part 162, 
Leases and Permits; or
    (13) Any other new use for which a right-of-way is appropriate but 
which is unforeseeable as of the effective date of these regulations.
    (b) Each of the uses listed above includes the right to access the 
right-of-way to manage vegetation, inspect, maintain and repair 
equipment, and conduct other activities that are necessary to maintain 
the right-of-way use.


Sec.  169.6  What statutory authority will BIA use to act on requests 
for rights-of-way under this part?

    BIA will act on requests for rights-of-way using the authority in 
25 U.S.C. 323-328, and relying on supplementary authority such as 25 
U.S.C. 2218, where appropriate.


Sec.  169.7  Does this part apply to right-of-way grants submitted for 
approval before December 21, 2015?

    (a) If your right-of-way grant is issued on or after December 21, 
2015, this part applies.
    (b) If we granted your right-of-way before December 21, 2015, the 
procedural provisions of this part apply except that if the procedural 
provisions of this part conflict with the explicit provisions of the 
right-of-way grant or statute authorizing the right-of-way document, 
then the provisions of the right-of-way grant or authorizing statute 
apply instead. Non-procedural provisions of this part do not apply.
    (c) If you submitted an application for a right-of-way but we did 
not grant the right-of-way before December 21, 2015, then:
    (1) You may choose to withdraw the document and resubmit after 
December 21, 2015, in which case this part will apply to that document; 
or
    (2) You may choose to proceed without withdrawing, in which case:
    (i) We will review the application under the regulations in effect 
at the time of your submission; and
    (ii) Once we grant the right-of-way, the procedural provisions of 
this part apply except that if the procedural provisions of this part 
conflict with the explicit provisions of the right-of-way grant or 
statute authorizing the right-of-way document, then the provisions of 
the right-of-way grant or authorizing statute apply instead. Non-
procedural provisions of this part do not apply.
    (d) For any assignments completed before December 21, 2015, the 
current assignee must, by April 18, 2016, provide BIA with 
documentation of any past assignments or notify BIA that it needs an 
extension and explain the reason for the extension.
    (e) To the maximum extent possible, BIA will interpret any 
ambiguous language in the right-of-way document or statute to be 
consistent with these regulations.


Sec.  169.8  May tribes administer this part on BIA's behalf?

    A tribe or tribal organization may contract or compact under the 
Indian Self-Determination and Education Assistance Act (25 U.S.C. 450f 
et seq.)

[[Page 72538]]

to administer on BIA's behalf any portion of this part that is not a 
grant, approval, or disapproval of a right-of-way document, waiver of a 
requirement for right-of-way grant or approval (including but not 
limited to waivers of fair market value and valuation), cancellation of 
a right-of-way, or an appeal. Applicants may inquire at either the BIA 
office or the tribal office to determine whether the tribe has 
compacted or contracted to administer realty functions.


Sec.  169.9  What laws apply to rights-of-way approved under this part?

    In addition to the regulations in this part, rights-of-way approved 
under this part:
    (a) Are subject to all applicable Federal laws;
    (b) Are subject to tribal law; except to the extent that those 
tribal laws are inconsistent with applicable Federal law; and
    (c) Are generally not subject to State law or the law of a 
political subdivision thereof.


Sec.  169.10  What is the effect of a right-of-way on a tribe's 
jurisdiction over the underlying parcel?

    A right-of-way is a non-possessory interest in land, and title does 
not pass to the grantee. The Secretary's grant of a right-of-way will 
clarify that it does not diminish to any extent:
    (a) The Indian tribe's jurisdiction over the land subject to, and 
any person or activity within, the right-of-way;
    (b) The power of the Indian tribe to tax the land, any improvements 
on the land, or any person or activity within, the right-of-way;
    (c) The Indian tribe's authority to enforce tribal law of general 
or particular application on the land subject to and within the right-
of-way, as if there were no grant of right-of-way;
    (d) The Indian tribe's inherent sovereign power to exercise civil 
jurisdiction over non-members on Indian land; or
    (e) The character of the land subject to the right-of-way as Indian 
country under 18 U.S.C. 1151.


Sec.  169.11  What taxes apply to rights-of-way approved under this 
part?

    (a) Subject only to applicable Federal law:
    (1) Permanent improvements in a right-of-way, without regard to 
ownership of those improvements, are not subject to any fee, tax, 
assessment, levy, or other charge imposed by any State or political 
subdivision of a State;
    (2) Activities under a right-of-way grant are not subject to any 
fee, tax, assessment, levy, or other charge (e.g., business use, 
privilege, public utility, excise, gross revenue taxes) imposed by any 
State or political subdivision of a State; and
    (3) The right-of-way interest is not subject to any fee, tax, 
assessment, levy, or other charge imposed by any State or political 
subdivision of a State.
    (b) Improvements, activities, and right-of-way interests may be 
subject to taxation by the Indian tribe with jurisdiction.


Sec.  169.12  How does BIA provide notice to the parties to a right-of-
way?

    When this part requires BIA to notify the parties of our intent to 
grant a right-of-way under Sec.  169.107(b) or our determination to 
approve or disapprove a right-of-way document, and to provide any right 
of appeal:
    (a) For rights-of-way over or across tribal land, we will notify 
the applicant and the tribe by first class U.S. mail or, upon request, 
electronic mail; and
    (b) For rights-of-way over or across individually owned Indian 
land, we will notify the applicant and individual Indian landowners by 
first class U.S. mail or, upon request, electronic mail. If the 
individually owned land is located within a tribe's jurisdiction, we 
will also notify the tribe by first class U.S. mail or, upon request, 
electronic mail.


Sec.  169.13  May decisions under this part be appealed?

    (a) Appeals from BIA decisions under this part may be taken under 
part 2 of this chapter, except our decision to disapprove a right-of-
way grant or any other right-of-way document may be appealed only by 
the applicant or an Indian landowner of the tract over or across which 
the right-of-way was proposed.
    (b) For purposes of appeals from BIA decisions under this part, 
``interested party'' is defined as any person whose land is subject to 
the right-of-way or located adjacent to or in close proximity to the 
right-of-way whose own direct economic interest is adversely affected 
by an action or decision.


Sec.  169.14  How does the Paperwork Reduction Act affect this part?

    The collections of information in this part have been approved by 
the Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned OMB Control Number 1076-0181. Response is required to obtain a 
benefit. A Federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays 
a currently valid OMB Control Number.

Subpart B--Service Line Agreements


Sec.  169.51  Is a right-of-way required for service lines?

    Service lines generally branch off from facilities for which a 
right-of-way must be obtained. A service line is a utility line running 
from a main line, transmission line, or distribution line that is used 
only for supplying telephone, water, electricity, gas, internet 
service, or other utility service to a house, business, or other 
structure. In the case of a power line, a service line is limited to a 
voltage of 14.5 kv or less, or a voltage of 34.5 kv or less if serving 
irrigation pumps and commercial and industrial uses. To obtain access 
to Indian land for service lines, the right-of-way grantee must file a 
service line agreement meeting the requirements of this subpart with 
BIA.


Sec.  169.52  What is a service line agreement?

    Service line agreements are agreements signed by a utility provider 
and landowners for the purpose of providing limited access to supply 
the owners (or authorized occupants or users) of one tract of tribal or 
individually owned Indian land with utilities for use by such owners 
(or occupants or users) on the premises.


Sec.  169.53  What should a service line agreement address?

    A service line agreement should address what utility services the 
provider will supply, to whom, and other appropriate details. The 
service line agreement should also address the mitigation of any 
damages incurred during construction and the restoration (or 
reclamation, if agreed to by the owners or authorized occupants or 
users) of the premises at the termination of the agreement.


Sec.  169.54  What are the consent requirements for service line 
agreements?

    (a) Before the utility provider may begin any work to construct 
service lines across tribal land, the utility provider and the tribe 
(or the legally authorized occupants or users of the tribal land and 
upon request, the tribe) must execute a service line agreement.
    (b) Before the utility provider may begin any work to construct 
service lines across individually owned land, the utility provider and 
the owners (or the legally authorized occupants or users) must execute 
a service line agreement.


Sec.  169.55  Is a valuation required for service line agreements?

    We do not require a valuation for service line agreements.

[[Page 72539]]

Sec.  169.56  Must I file service line agreements with the BIA?

    The parties must file an executed copy of service line agreements, 
together with a plat or diagram, with us within 30 days after the date 
of execution for recording in the LTRO. The plat or diagram must show 
the boundary of the ownership parcel and point of connection of the 
service line with the distribution line. When the plat or diagram is 
placed on a separate sheet it must include the signatures of the 
parties.

Subpart C--Obtaining a Right-of-Way

Application


Sec.  169.101  How do I obtain a right-of-way across tribal or 
individually owned Indian land or BIA land?

    (a) To obtain a right-of-way across tribal or individually owned 
Indian land or BIA land, you must submit a complete application to the 
BIA office with jurisdiction over the land covered by the right-of-way.
    (b) If you must obtain access to Indian land to prepare information 
required by the application (e.g., to survey), you must obtain the 
consent of the Indian landowners, but our approval to access is not 
required. Upon written request, we will provide you with the names, 
addresses, and percentage of ownership of individual Indian landowners, 
to allow you to obtain the landowners' consent to survey.
    (c) If the BIA will be granting the right-of-way across Indian land 
under Sec.  169.107(b), then the BIA may grant permission to access the 
land.


Sec.  169.102  What must an application for a right-of-way include?

    (a) An application for a right-of-way must identify:
    (1) The applicant;
    (2) The tract(s) or parcel(s) affected by the right-of-way;
    (3) The general location of the right-of-way;
    (4) The purpose of the right-of-way;
    (5) The duration of the right-of-way: and
    (6) The ownership of permanent improvements associated with the 
right-of-way and the responsibility for constructing, operating, 
maintaining, and managing permanent improvements under Sec.  169.105.
    (b) The following must be submitted with the application:
    (1) An accurate legal description of the right-of-way, its 
boundaries, and parcels associated with the right-of-way;
    (2) A map of definite location of the right-of-way (this 
requirement does not apply to easements covering the entire tract of 
land);
    (3) Bond(s), insurance, and/or other security meeting the 
requirements of Sec.  169.103;
    (4) Record that notice of the right-of-way was provided to all 
Indian landowners;
    (5) Record of consent for the right-of-way meeting the requirements 
of Sec.  169.107, or a statement requesting a right-of-way without 
consent under Sec.  169.107(b);
    (6) If applicable, a valuation meeting the requirements of Sec.  
169.114;
    (7) If the applicant is a corporation, limited liability company, 
partnership, joint venture, or other legal entity, except a tribal 
entity, information such as organizational documents, certificates, 
filing records, and resolutions, demonstrating that:
    (i) The representative has authority to execute the application;
    (ii) The right-of-way will be enforceable against the applicant; 
and
    (iii) The legal entity is in good standing and authorized to 
conduct business in the jurisdiction where the land is located;
    (8) Environmental and archaeological reports, surveys, and site 
assessments, as needed to facilitate compliance with applicable Federal 
and tribal environmental and land use requirements; and
    (9) A statement from the appropriate tribal authority that the 
proposed use is in conformance with applicable tribal law, if required 
by the tribe.
    (c) There is no standard application form.


Sec.  169.103  What bonds, insurance, or other security must accompany 
the application?

    (a) You must include payment of bonds, insurance, or alternative 
forms of security with your application for a right-of-way in amounts 
that cover:
    (1) The highest annual rental specified in the grant, unless 
compensation is a one-time payment;
    (2) The estimated damages resulting from the construction of any 
permanent improvements;
    (3) The estimated damages and remediation costs from any potential 
release of contaminants, explosives, hazardous material or waste;
    (4) The operation and maintenance charges for any land located 
within an irrigation project;
    (5) The restoration of the premises to their condition at the start 
of the right-of-way or reclamation to some other specified condition if 
agreed to by the landowners.
    (b) The bond or other security must be deposited with us and made 
payable only to us, and may not be modified without our approval, 
except for tribal land in which case the bond or security may be 
deposited with and made payable to the tribe, and may not be modified 
without the approval of the tribe. Any insurance must identify both the 
Indian landowners and the United States as additional insured parties.
    (c) The grant will specify the conditions under which we may adjust 
the bond, insurance, or security requirements to reflect changing 
conditions, including consultation with the tribal landowner for tribal 
land before the adjustment.
    (d) We may require that the surety provide any supporting documents 
needed to show that the bond, insurance, or alternative form of 
security will be enforceable, and that the surety will be able to 
perform the guaranteed obligations.
    (e) The bond, insurance, or other security instrument must require 
the surety to provide notice to us, and the tribe for tribal land, at 
least 60 days before canceling a bond, insurance, or other security. 
This will allow us to notify the grantee of its obligation to provide a 
substitute bond, insurance, or other security before the cancellation 
date. Failure to provide a substitute bond, insurance or security is a 
violation of the right-of-way.
    (f) We may waive the requirement for a bond, insurance, or 
alternative form of security:
    (1) For individually owned Indian land, if the Indian landowners of 
the majority of the interests request it and we determine, in writing, 
that a waiver is in the Indian landowners' best interest considering 
the purpose of and risks associated with the right-of-way, or if the 
grantee is a utility cooperative and is providing a direct benefit to 
the Indian land or is a tribal utility.
    (2) For tribal land, deferring, to the maximum extent possible, to 
the tribe's determination that a waiver of a bond, insurance or 
alternative form of security is in its best interest.
    (g) We will accept a bond only in one of the following forms:
    (1) Certificates of deposit issued by a federally insured financial 
institution authorized to do business in the United States;
    (2) Irrevocable letters of credit issued by a federally insured 
financial institution authorized to do business in the United States;
    (3) Negotiable Treasury securities; or
    (4) Surety bonds issued by a company approved by the U.S. 
Department of the Treasury.
    (h) We may accept an alternative form of security approved by us 
that provides adequate protection for the Indian landowners and us, 
including but not

[[Page 72540]]

limited to an escrow agreement or an assigned savings account.
    (i) All forms of bonds or alternative security must, if applicable:
    (1) State on their face that BIA approval is required for 
redemption;
    (2) Be accompanied by a statement granting full authority to BIA to 
make an immediate claim upon or sell them if the grantee violates the 
terms of the right-of-way grant;
    (3) Be irrevocable during the term of the bond or alternative 
security; and
    (4) Be automatically renewable during the term of the right-of-way.
    (j) We will not accept cash bonds.


Sec.  169.104  What is the release process for a bond or alternative 
form of security?

    Upon satisfaction of the requirements for which the bond was 
security, or upon expiration, termination, or cancellation of the 
right-of-way, the grantee may ask BIA in writing to release all or part 
of the bond or alternative form of security and release the grantee 
from the obligation to maintain insurance. Upon receiving the grantee's 
request, BIA will:
    (a) Confirm with the tribe, for tribal land or, where feasible, 
with the Indian landowners for individually owned Indian land, that the 
grantee has complied with all applicable grant obligations; and
    (b) Release all or part of the bond or alternative form of security 
to the grantee, unless we determine that the bond or security must be 
redeemed to fulfill the contractual obligations.


Sec.  169.105  What requirements for due diligence must a right-of-way 
grant include?

    (a) If permanent improvements are to be constructed, the right-of-
way grant must include due diligence requirements that require the 
grantee to complete construction of any permanent improvements within 
the schedule specified in the right-of-way grant or general schedule of 
construction, and a process for changing the schedule by mutual consent 
of the parties. If construction does not occur, or is not expected to 
be completed, within the time period specified in the grant, the 
grantee must provide the Indian landowners and BIA with an explanation 
of good cause as to the nature of any delay, the anticipated date of 
construction of facilities, and evidence of progress toward 
commencement of construction.
    (b) Failure of the grantee to comply with the due diligence 
requirements of the grant is a violation of the grant and may lead to 
cancellation of the right-of-way under Sec.  169.405 or Sec.  169.408.
    (c) BIA may waive the requirements in this section if we determine, 
in writing, that a waiver is in the best interest of the Indian 
landowners.

Consent Requirements


Sec.  169.106  How does an applicant identify and contact individual 
Indian landowners to negotiate a right-of-way?

    (a) Applicants may submit a written request to us to obtain the 
following information. The request must specify that it is for the 
purpose of negotiating a right-of-way:
    (1) Names and addresses of the individual Indian landowners or 
their representatives;
    (2) Information on the location of the parcel; and
    (3) The percentage of undivided interest owned by each individual 
Indian landowner.
    (b) We may assist applicants in contacting the individual Indian 
landowners or their representatives for the purpose of negotiating a 
right-of-way, upon request.
    (c) We will attempt to assist individual Indian landowners in 
right-of-way negotiations, upon their request.


Sec.  169.107  Must I obtain tribal or individual Indian landowner 
consent for a right-of-way across Indian land?

    (a) For a right-of-way across tribal land, the applicant must 
obtain tribal consent, in the form of a tribal authorization and a 
written agreement with the tribe, if the tribe so requires, to a grant 
of right-of-way across tribal land. The consent document may impose 
restrictions or conditions; any restrictions or conditions 
automatically become conditions and restrictions in the grant.
    (b) For a right-of-way across individually owned Indian land, the 
applicant must notify all individual Indian landowners and, except as 
provided in paragraph (b)(1) of this section, must obtain written 
consent from the owners of the majority interest in each tract affected 
by the grant of right-of-way.
    (1) We may issue the grant of right-of-way without the consent of 
any of the individual Indian owners if all of the following conditions 
are met:
    (i) The owners of interests in the land are so numerous that it 
would be impracticable to obtain consent as defined in paragraph (c) of 
this section;
    (ii) We determine the grant will cause no substantial injury to the 
land or any landowner, based on factors including, but not limited to, 
the reasonableness of the term of the grant, the amount of acreage 
involved in the grant, the disturbance to land that will result from 
the grant, the type of activity to be conducted under the grant, the 
potential for environmental or safety impacts resulting from the grant, 
and any objections raised by landowners;
    (iii) We determine that all of the landowners will be adequately 
compensated for consideration and any damages that may arise from a 
grant of right-of-way; and
    (iv) We provide notice of our intent to issue the grant of right-
of-way to all of the owners at least 60 days prior to the date of the 
grant using the procedures in Sec.  169.12, and provide landowners with 
30 days to object.
    (2) For the purposes of this section, the owners of interests in 
the land are so numerous that it would be impracticable to obtain 
consent, if there are 50 or more co-owners of undivided trust or 
restricted interests.
    (3) Successors are bound by consent granted by their predecessors-
in-interest.
    (c) We will determine the number of owners of, and undivided 
interests in, a fractionated tract of Indian land, for the purposes of 
calculating the requisite consent based on our records on the date on 
which the application is submitted to us.


Sec.  169.108  Who is authorized to consent to a right-of-way?

    (a) Indian tribes, adult Indian landowners, and emancipated minors, 
may consent to a right-of-way over or across their land, including 
undivided interests in fractionated tracts.
    (b) The following individuals or entities may consent on behalf of 
an individual Indian landowner:
    (1) An adult with legal custody acting on behalf of his or her 
minor children;
    (2) A guardian, conservator, or other fiduciary appointed by a 
court of competent jurisdiction to act on behalf of an individual 
Indian landowner;
    (3) Any person who is authorized to practice before the Department 
of the Interior under 43 CFR 1.3(b) and has been retained by the Indian 
landowner for this purpose;
    (4) BIA, under the circumstances in paragraph (c) of this section; 
or
    (5) An adult or legal entity who has been given a written power of 
attorney that:
    (i) Meets all of the formal requirements of any applicable law 
under Sec.  169.9;
    (ii) Identifies the attorney-in-fact; and
    (iii) Describes the scope of the powers granted, to include 
granting rights-of-way on land or generally conveying or encumbering 
interests in Indian land, and any limits on those powers.
    (c) BIA may give written consent to a right-of-way on behalf of an 
individual Indian landowner, as long as we

[[Page 72541]]

determine that the grant will cause no substantial injury to the land 
or any landowner, based on factors including, but not limited to, the 
amount of acreage involved in the grant, the disturbance to land that 
will result from the grant, the type of activity to be conducted under 
the grant, the potential for environmental or safety impacts resulting 
from the grant, and any objections raised by landowners. BIA's consent 
must be counted in the majority interest under Sec.  169.107, on behalf 
of:
    (1) An individual Indian landowner, if the owner is deceased, and 
the heirs to, or devisees of, the interest of the deceased owner have 
not been determined;
    (2) An individual Indian landowner whose whereabouts are unknown to 
us, after we make a reasonable attempt to locate the individual;
    (3) An individual Indian landowner who is found to be non compos 
mentis or determined to be an adult in need of assistance who does not 
have a guardian duly appointed by a court of competent jurisdiction, or 
an individual under legal disability as defined in part 115 of this 
chapter;
    (4) An individual Indian landowner who is an orphaned minor and who 
does not have a guardian duly appointed by a court of competent 
jurisdiction; and
    (5) An individual Indian landowner who has given us a written power 
of attorney to consent to a right-of-way over or across their land.


Sec.  169.109  Whose consent do I need for a right-of-way when there is 
a life estate on the tract?

    If there is a life estate on the tract that would be subject to the 
right-of-way, the applicant must get the consent of both the life 
tenant and the owners of the majority of the remainder interest known 
at the time of the application.

Compensation Requirements


Sec.  169.110  How much monetary compensation must be paid for a right-
of-way over or across tribal land?

    (a) A right-of-way over or across tribal land may allow for any 
payment amount negotiated by the tribe, and we will defer to the tribe 
and not require a valuation if the tribe submits a tribal authorization 
expressly stating that it:
    (1) Has agreed upon compensation satisfactory to the tribe;
    (2) Waives valuation; and
    (3) Has determined that accepting such agreed-upon compensation and 
waiving valuation is in its best interest.
    (b) The tribe may request, in writing, that we determine fair 
market value, in which case we will use a valuation in accordance with 
Sec.  169.114. After providing the tribe with the fair market value, we 
will defer to a tribe's decision to allow for any compensation 
negotiated by the tribe.
    (c) If the conditions in paragraph (a) or (b) of this section are 
not met, we will require that the grantee pay fair market value based 
on a valuation in accordance with Sec.  169.114.


Sec.  169.111  Must a right-of-way grant for tribal land provide for 
compensation reviews or adjustments?

    For a right-of-way grant over or across tribal land, no periodic 
review of the adequacy of compensation or adjustment is required, 
unless the tribe negotiates for reviews or adjustments.


Sec.  169.112  How much monetary compensation must be paid for a right-
of-way over or across individually owned Indian land?

    (a) A right-of-way over or across individually owned Indian land 
must require compensation of not less than fair market value, unless 
paragraph (b) or (c) of this section permit a lesser amount. 
Compensation may also include additional fees, including but not 
limited to throughput fees, severance damages, franchise fees, 
avoidance value, bonuses, or other factors. Compensation may be based 
on a fixed amount, a percentage of the projected income, or some other 
method. The grant must establish how the fixed amount, percentage, or 
combination will be calculated and the frequency at which the payments 
will be made.
    (b) We may approve a right-of-way over or across individually owned 
Indian land that provides for nominal compensation, or compensation 
less than a fair market value, if:
    (1) The grantee is a utility cooperative and is providing a direct 
benefit to the Indian land; or
    (2) The grantee is a tribal utility; or
    (3) The individual Indian landowners execute a written waiver of 
the right to receive fair market value and we determine it is in the 
individual Indian landowners' best interest, based on factors 
including, but not limited to:
    (i) The grantee is a member of the immediate family, as defined in 
Sec.  169.2, of an individual Indian landowner;
    (ii) The grantee is a co-owner in the affected tract;
    (iii) A special relationship or circumstances exist that we believe 
warrant approval of the right-of-way; or
    (iv) We have waived the requirement for a valuation under paragraph 
(d) of this section.
    (c) We will require a valuation to determine fair market value, 
unless:
    (1) 100 percent of the individual Indian landowners submit to us a 
written request to waive the valuation requirement; or
    (2) We waive the requirement under paragraph (d) of this section.
    (d) The grant must provide that the non-consenting individual 
Indian landowners, and those on whose behalf we have consented under 
Sec.  169.108(c), or granted the right-of-way without consent under 
Sec.  169.107(b), receive fair market value, as determined by a 
valuation, unless:
    (1) The grantee is a utility cooperative and is providing a direct 
benefit to the Indian land; or
    (2) The grantee is a tribal utility; or
    (3) We waive the requirement because the tribe or grantee will 
construct infrastructure improvements benefitting the individual Indian 
landowners, and we determine in writing that the waiver is in the best 
interest of all the landowners.


Sec.  169.113  Must a right-of-way grant for individually owned Indian 
land provide for compensation reviews or adjustments?

    (a) For a right-of-way grant of individually owned Indian land, a 
review of the adequacy of compensation must occur at least every fifth 
year, in the manner specified in the grant unless:
    (1) Payment is a one-time lump sum;
    (2) The term of the right-of-way grant is 5 years or less;
    (3) The grant provides for automatic adjustments; or
    (4) We determine it is in the best interest of the Indian 
landowners not to require a review or automatic adjustment based on 
circumstances including, but not limited to, the following:
    (i) The right-of-way grant provides for payment of less than fair 
market value;
    (ii) The right-of-way grant provides for most or all of the 
compensation to be paid during the first 5 years of the grant term or 
before the date the review would be conducted; or
    (iii) The right-of-way grant provides for graduated rent or non-
monetary or varying types of compensation.
    (b) The grant must specify:
    (1) When adjustments take effect;
    (2) Who can make adjustments;
    (3) What the adjustments are based on; and
    (4) How to resolve disputes arising from the adjustments.
    (c) When a review results in the need for adjustment of 
compensation, the Indian landowners must consent to the adjustment in 
accordance with Sec.  169.107, unless the grant provides otherwise.

[[Page 72542]]

Sec.  169.114  How will BIA determine fair market value for a right-of-
way?

    (a) We will use a market analysis, appraisal, or other appropriate 
valuation method to determine the fair market value before we grant a 
right-of-way over or across individually owned Indian land. We will 
also use a market analysis, appraisal, or other appropriate valuation 
method to determine, at the request of the tribe, the fair market value 
of tribal land.
    (b) We will either:
    (1) Prepare, or have prepared, a market analysis, appraisal, or 
other appropriate valuation method; or
    (2) Approve use of a market analysis, appraisal, or other 
appropriate valuation method from the Indian landowners or grantee.
    (c) We will use or approve use of a market analysis, appraisal, or 
other appropriate valuation method only if it:
    (1) Has been prepared in accordance with USPAP or a valuation 
method developed by the Secretary under 25 U.S.C. 2214 and complies 
with Departmental policies regarding appraisals, including third-party 
appraisals; or
    (2) Has been prepared by another Federal agency.


Sec.  169.115  When are monetary compensation payments due under a 
right-of-way?

    Compensation for a right-of-way may be a one-time, lump sum 
payment, or may be paid in increments (for example, annually).
    (a) If compensation is a one-time, lump sum payment, the grantee 
must make the payment by the date we grant the right-of-way, unless 
stated otherwise in the grant.
    (b) If compensation is to be paid in increments, the right-of-way 
grant must specify the dates on which all payments are due. Payments 
are due at the time specified in the grant, regardless of whether the 
grantee receives an advance billing or other notice that a payment is 
due. Increments may not be more frequent than quarterly if payments are 
made to us on the Indian landowners' behalf.


Sec.  169.116  Must a right-of-way specify who receives monetary 
compensation payments?

    (a) A right-of-way grant must specify whether the grantee will make 
payments directly to the Indian landowners (direct pay) or to us on 
their behalf.
    (b) The grantee may make payments directly to the tribe if the 
tribe so chooses. The grantee may make payments directly to the Indian 
landowners if:
    (1) The Indian landowners' trust accounts are unencumbered 
accounts;
    (2) There are 10 or fewer beneficial owners; and
    (3) One hundred percent of the beneficial owners (including those 
on whose behalf we have consented) agree to receive payment directly 
from the grantee at the start of the right-of-way.
    (c) If the right-of-way document provides that the grantee will 
directly pay the Indian landowners, then:
    (1) The right-of-way document must include provisions for proof of 
payment upon our request.
    (2) When we consent on behalf of an Indian landowner, the grantee 
must make payment to us on behalf of that landowner.
    (3) The grantee must send direct payments to the parties and 
addresses specified in the right-of-way, unless the grantee receives 
notice of a change of ownership or address.
    (4) Unless the right-of-way document provides otherwise, payments 
may not be made payable directly to anyone other than the Indian 
landowners.
    (5) Direct payments must continue through the duration of the 
right-of-way, except that:
    (i) The grantee must make all Indian landowners' payments to us if 
100 percent of the Indian landowners agree to suspend direct pay and 
provide us with documentation of their agreement; and
    (ii) The grantee must make an individual Indian landowner's payment 
to us if that individual Indian landowner dies, is declared non compos 
mentis, owes a debt resulting in an encumbered account, or his or her 
whereabouts become unknown.


Sec.  169.117  What form of monetary compensation is acceptable under a 
right-of-way?

    (a) If payments are made to us on behalf of the Indian landowners, 
our preferred method of payment is electronic funds transfer payments. 
We will also accept:
    (1) Money orders;
    (2) Personal checks;
    (3) Certified checks; or
    (4) Cashier's checks.
    (b) We will not accept cash or foreign currency.
    (c) We will accept third-party checks only from financial 
institutions or Federal agencies.
    (d) The grant of right-of-way will specify the payment method if 
payments are made by direct pay.


Sec.  169.118  May the right-of-way provide for non-monetary or varying 
types of compensation?

    (a) A right-of-way grant may provide for alternative forms of 
compensation and varying types of compensation, subject to the 
conditions in paragraphs (b) and (c) of this section:
    (1) Alternative forms of compensation may include but are not 
limited to, in-kind consideration and payments based on throughput or 
percentage of income; or
    (2) Varying types of compensation may include but are not limited 
to different types of payments at specific stages during the life of 
the right-of-way grant, such as fixed annual payments during 
construction, payments based on income during an operational period, 
and bonuses.
    (b) For tribal land, we will defer to the tribe's determination 
that the compensation under paragraph (a) of this section is in its 
best interest, if the tribe submits a signed certification or tribal 
authorization stating that it has determined the alternative form of 
compensation or varying type of compensation to be in its best 
interest.
    (c) For individually owned land, we may grant a right-of-way that 
provides for an alternative form of compensation or varying type of 
compensation if we determine that it is in the best interest of the 
Indian landowners.


Sec.  169.119  Will BIA notify a grantee when a payment is due for a 
right-of-way?

    Upon request of the Indian landowners, we may issue invoices to a 
grantee in advance of the dates on which payments are due under the 
right-of-way. The grantee's obligation to make these payments in a 
timely manner will not be excused if invoices are not issued, 
delivered, or received.


Sec.  169.120  What other types of payments are required for a right-
of-way?

    (a) The grantee may be required to pay additional fees, taxes, and 
assessments associated with the application for use of the land or use 
of the land, as determined by entities having jurisdiction, except as 
provided in Sec.  169.11. The grantee must pay these amounts to the 
appropriate office, as applicable.
    (b) In addition to, or as part of, the compensation for a right-of-
way under Sec. Sec.  169.110 and 169.112 and the payments provided for 
in paragraph (a) of this section, the applicant for a right-of-way will 
be required to pay for all damages to the land, such as those incident 
to the construction or maintenance of the facility for which the right-
of-way is granted.


Sec.  169.121  How will compensation be distributed among the life 
tenants and owners of the remainder interests?

    If a will created the life estate and specifies how the 
compensation will be

[[Page 72543]]

distributed among the life tenants and owners of the remainder 
interests, those terms will establish the distribution. Otherwise:
    (a) The owners of the remainder interests and the life tenant may 
enter into a right-of-way or other written agreement approved by the 
Secretary providing for the distribution of rent monies under the 
right-of-way; or
    (b) If the owners of the remainder interests and life tenant did 
not enter into an agreement for distribution, the life tenant will 
receive payment in accordance with the distribution and calculation 
scheme set forth in part 179 of this chapter.


Sec.  169.122  Who does the grantee pay if there is a life estate on 
the tract?

    The grantee must pay compensation directly to the life tenant under 
the terms of the right-of-way unless the whereabouts of the life tenant 
are unknown, in which case we may collect compensation on behalf of the 
life tenant.

Grants of Rights-of-Way


Sec.  169.123  What is the process for BIA to grant a right-of-way?

    (a) Before we grant a right-of-way, we must determine that the 
right-of-way is in the best interest of the Indian landowners. In 
making that determination, we will:
    (1) Review the right-of-way application and supporting documents;
    (2) Identify potential environmental impacts and adverse impacts, 
and ensure compliance with all applicable Federal environmental, land 
use, historic preservation, and cultural resource laws and ordinances; 
and
    (3) Require any modifications or mitigation measures necessary to 
satisfy any requirements including any other Federal or tribal land use 
requirements.
    (b) Upon receiving a right-of-way application, we will promptly 
notify the applicant whether the package is complete. A complete 
package includes all of the information and supporting documents 
required under this subpart, including but not limited to, an accurate 
legal description for each affected tract, documentation of landowner 
consent, NEPA review documentation and valuation documentation, where 
applicable.
    (1) If the right-of-way application package is not complete, our 
letter will identify the missing information or documents required for 
a complete package. If we do not respond to the submission of an 
application package, the parties may take action under Sec.  169.304.
    (2) If the right-of-way application package is complete, we will 
notify the applicant of the date of our receipt of the complete 
package. Within 60 days of our receipt of a complete package, we will 
grant or deny the right-of-way, return the package for revision, or 
inform the applicant in writing that we need additional review time. If 
we inform the applicant in writing that we need additional time, then:
    (i) Our letter informing the applicant that we need additional 
review time must identify our initial concerns and invite the applicant 
to respond within 15 days of the date of the letter; and
    (ii) We will issue a written determination granting or denying the 
right-of-way within 30 days from sending the letter informing the 
applicant that we need additional time.
    (c) If we do not meet the deadlines in this section, then the 
applicant may take appropriate action under Sec.  169.304.
    (d) We will provide any right-of-way denial and the basis for the 
determination, along with notification of any appeal rights under part 
2 of this chapter to the parties to the right-of-way. If the right-of-
way is granted, we will provide a copy of the right-of-way to the 
tribal landowner and, upon written request, make copies available to 
the individual Indian landowners, and provide notice under Sec.  
169.12.


Sec.  169.124  How will BIA determine whether to grant a right-of-way?

    Our decision to grant or deny a right-of-way will be in writing.
    (a) We will grant a right-of-way unless:
    (1) The requirements of this subpart have not been met, such as if 
the required landowner consent has not been obtained under Sec.  
169.107; or
    (2) We find a compelling reason to withhold the grant in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the right-of-way is in their best 
interest.
    (c) We may not unreasonably withhold our grant of a right-of-way.
    (d) We may grant one right-of-way for all of the tracts traversed 
by the right-of-way, or we may issue separate grants for one or more 
tracts traversed by the right-of-way.


Sec.  169.125  What will the grant of right-of-way contain?

    (a) The grant will incorporate the conditions or restrictions set 
out in the Indian landowners' consents.
    (b) The grant will address:
    (1) The use(s) the grant is authorizing;
    (2) Whether assignment of the right-of-way is permitted and, if so, 
whether additional consent is required for the assignment and whether 
any additional compensation is owed to the landowners;
    (3) Whether mortgaging of the right-of-way is permitted and, if so, 
whether additional consent is required for the mortgage and whether any 
additional compensation is owed to the landowners; and
    (4) Ownership of permanent improvements under Sec.  169.130.
    (c) The grant will state that:
    (1) The tribe maintains its existing jurisdiction over the land, 
activities, and persons within the right-of-way under Sec.  169.10 and 
reserves the right of the tribe to reasonable access to the lands 
subject to the grant to determine grantee's compliance with consent 
conditions or to protect public health and safety;
    (2) The grantee has no right to any of the products or resources of 
the land, including but not limited to, timber, forage, mineral, and 
animal resources, unless otherwise provided for in the grant;
    (3) BIA may treat any provision of a grant that violates Federal 
law as a violation of the grant; and
    (4) If historic properties, archeological resources, human remains, 
or other cultural items not previously reported are encountered during 
the course of any activity associated with this grant, all activity in 
the immediate vicinity of the properties, resources, remains, or items 
will cease and the grantee will contact BIA and the tribe with 
jurisdiction over the land to determine how to proceed and appropriate 
disposition.
    (5) The grantee must:
    (i) Construct and maintain improvements within the right-of-way in 
a professional manner consistent with industry standards;
    (ii) Pay promptly all damages and compensation, in addition to bond 
or alternative form of security made pursuant to Sec.  169.103, 
determined by the BIA to be due the landowners and authorized users and 
occupants of land as a result of the granting, construction, and 
maintenance of the right-of-way;
    (iii) Restore the land as nearly as may be possible to its original 
condition, upon the completion of construction, to the extent 
compatible with the purpose for which the right-of-way was granted, or 
reclaim the land if agreed to by the landowners;
    (iv) Clear and keep clear the land within the right-of-way, to the 
extent compatible with the purpose of the right-of-way, and dispose of 
all

[[Page 72544]]

vegetative and other material cut, uprooted, or otherwise accumulated 
during the construction and maintenance of the project;
    (v) Comply with all applicable laws and obtain all required 
permits;
    (vi) Not commit waste;
    (vii) Operate, repair and maintain improvements consistent with the 
right-of-way grant;
    (viii) Build and maintain necessary and suitable crossings for all 
roads and trails that intersect the improvements constructed, 
maintained, or operated under the right-of-way;
    (ix) Restore the land to its original condition, to the maximum 
extent reasonably possible, upon cancellation or termination of the 
right-of-way, or reclaim the land if agreed to by the landowners;
    (x) At all times keep the BIA, and the tribe for tribal land, 
informed of the grantee's address;
    (xi) Refrain from interfering with the landowner's use of the land, 
provided that the landowner's use of the land is not inconsistent with 
the right-of-way;
    (xii) Comply with due diligence requirements under Sec.  169.105; 
and
    (xiii) Notify the BIA, and the tribe for tribal land, if it files 
for bankruptcy or is placed in receivership.
    (6) Unless the grantee would be prohibited by law from doing so, 
the grantee must also:
    (i) Hold the United States and the Indian landowners harmless from 
any loss, liability, or damages resulting from the applicant's use or 
occupation of the premises; and
    (ii) Indemnify the United States and the Indian landowners against 
all liabilities or costs relating to the use, handling, treatment, 
removal, storage, transportation, or disposal of hazardous materials, 
or release or discharge of any hazardous material from the premises 
that occurs during the term of the grant, regardless of fault, with the 
exception that the applicant is not required to indemnify the Indian 
landowners for liability or cost arising from the Indian landowners' 
negligence or willful misconduct.
    (d) The grant must attach or include by reference maps of definite 
location.


Sec.  169.126  May a right-of-way contain a preference consistent with 
tribal law for employment of tribal members?

    A grant of right-of-way over or across Indian land may include a 
provision, consistent with tribal law, requiring the grantee to give a 
preference to qualified tribal members, based on their political 
affiliation with the tribe.


Sec.  169.127  Is a new right-of-way grant required for a new use 
within or overlapping an existing right-of-way?

    (a) If you are the grantee, you may use all or a portion of an 
existing right-of-way for a use not specified in the original grant of 
the existing right-of-way only if it is within the same scope of the 
use specified in the original grant of the existing right-of-way.
    (1) If you propose to use all or a portion of an existing right-of-
way for a use not specified in the original grant of the existing 
right-of-way and not within the same scope of the use specified in the 
original grant of the existing right-of-way, and the new use will not 
require any ground disturbance, you must request an amendment to the 
existing right-of-way grant.
    (2) If you propose to use all or a portion of an existing right-of-
way for a use not specified in the original grant of the existing 
right-of-way and not within the same scope of the use specified in the 
original grant of the existing right-of-way, and the new use requires 
ground disturbance, you must request a new right-of-way.
    (b) If you are not the grantee:
    (1) You may use all or a portion of an existing right-of-way for a 
use specified in the original grant of the existing right-of-way or a 
use within the same scope of the use specified in the original grant of 
the existing right-of-way if the grantee obtains an assignment to 
authorize the new user; or
    (2) You may use all or a portion of an existing right-of-way for a 
use not specified in the original grant of the existing right-of-way 
and not within the same scope of use specified in the original grant of 
the existing right-of-way if you request a new right-of-way within or 
overlapping the existing right-of-way for the new use.
    (c) An example of a use within the same scope is a right-of-way for 
underground telephone line being used for an underground fiber optic 
line, and an example of a use that is not within the same scope is a 
right-of-way for a pipeline being used for a road or railroad.


Sec.  169.128  When will BIA grant a right-of-way for a new use within 
or overlapping an existing right-of-way?

    We may grant a new right-of-way within or overlapping an existing 
right-of-way if it meets the following conditions:
    (a) The applicant follows the procedures and requirements in this 
part to obtain a new right-of-way.
    (b) The new right-of-way does not interfere with the use or purpose 
of the existing right-of-way and the applicant has obtained the consent 
of the existing right-of-way grantee. The existing right-of-way grantee 
may not unreasonably withhold consent.


Sec.  169.129  What is required if the location described in the 
original application and grant differs from the construction location?

    (a) If engineering or other complications prevented construction 
within the location identified in the original application and grant, 
and required a minor deviation from the location identified in the 
original application and grant, then we and the tribe, for tribal land, 
will determine whether the change in location requires one or more of 
the following:
    (1) An amended map of definite location;
    (2) Landowner consent;
    (3) A valuation or, with landowner consent, a recalculation of 
compensation;
    (4) Additional compensation or security; or
    (5) Other actions required to comply with applicable laws.
    (b) If BIA and the tribe, for tribal land, determine it is not a 
minor deviation in location, we may require a new right-of-way grant or 
amendment to the right-of-way grant.
    (c) If we grant a right-of-way for the new route or location, the 
applicant must execute instruments to extinguish, or amend, as 
appropriate, the right-of-way at the original location identified in 
the application.
    (d) We will transmit the instruments to extinguish or amend the 
right-of-way to the LTRO for recording.


Sec.  169.130  Must a right-of-way grant address ownership of permanent 
improvements?

    (a) A right-of-way grant must specify who will own any permanent 
improvements the grantee constructs during the grant term and may 
specify under what conditions, if any, permanent improvements the 
grantee constructs may be conveyed to the Indian landowners during the 
grant term. In addition, the grant may indicate whether each specific 
permanent improvement the grantee constructs will:
    (1) Remain on the premises, upon the expiration, cancellation, or 
termination of the grant, in a condition satisfactory to the Indian 
landowners, and become the property of the Indian landowners;
    (2) Be removed within a time period specified in the grant, at the 
grantee's expense, with the premises to be restored as closely as 
possible to their condition before construction of the permanent 
improvements; or

[[Page 72545]]

    (3) Be disposed of by other specified means.
    (b) A grant that requires the grantee to remove the permanent 
improvements must also provide the Indian landowners with an option to 
take possession of and title to the permanent improvements if the 
improvements are not removed within the specified time period.

Subpart D--Duration, Renewals, Amendments, Assignments, Mortgages

Duration & Renewals


Sec.  169.201  How long may the duration of a right-of-way grant be?

    (a) All rights-of-way granted under this part are limited to the 
time periods stated in the grant.
    (b) For tribal land, we will defer to the tribe's determination 
that the right-of-way term is reasonable.
    (c) For individually owned Indian land, we will review the right-
of-way duration to ensure that it is reasonable, given the purpose of 
the right-of-way. We will generally consider a maximum duration of 20 
years to be reasonable for the initial term for rights-of-way for oil 
and gas purposes and a maximum of 50 years, inclusive of the initial 
term and any renewals, to be reasonable for rights-of-way for all other 
purposes. We will consider a duration consistent with use to be 
reasonable for rights-of-way for conservation easements. We will 
consider durations different from these guidelines if a different 
duration would benefit the Indian landowners, is required by another 
Federal agency, or the tribe has negotiated for a different duration 
and the right-of-way crosses tribal land.


Sec.  169.202  Under what circumstances will a grant of right-of-way be 
renewed?

    A renewal is an extension of term of an existing right-of-way 
without any other change.
    (a) The grantee may request a renewal of an existing right-of-way 
grant and we will renew the grant as long as:
    (1) The initial term and renewal terms, together, do not exceed the 
maximum term determined to be reasonable under Sec.  169.201;
    (2) The existing right-of-way grant explicitly allows for automatic 
renewal or an option to renew and specifies compensation owed to the 
landowners upon renewal or how compensation will be determined;
    (3) The grantee provides us with a signed affidavit that there is 
no change in size, type, or location, of the right-of-way;
    (4) The initial term has not yet ended;
    (5) No uncured violation exists regarding the regulations in this 
part or the grant's conditions or restrictions; and
    (6) The grantee provides confirmation that landowner consent has 
been obtained, or if consent is not required because the original 
right-of-way grant explicitly allows for renewal without the owners' 
consent, the grantee provides notice to the landowners of the renewal.
    (b) We will record any renewal of a right-of-way grant in the LTRO.
    (c) If the proposed renewal involves any change to the original 
grant or the original grant was silent as to renewals, the grantee must 
reapply for a new right-of-way, in accordance with Sec.  169.101, and 
we will handle the application for renewal as an original application 
for a right-of-way.


Sec.  169.203  May a right-of-way be renewed multiple times?

    There is no prohibition on renewing a right-of-way multiple times, 
unless the grant expressly prohibits multiple renewals, and subject to 
the duration limitations for individually owned land in Sec.  169.201. 
The provisions of Sec.  169.202 apply to each renewal.

Amendments


Sec.  169.204  May a grantee amend a right-of-way?

    (a) An amendment is required to change any provisions of a right-
of-way grant. If the change is a material change to the grant, we may 
require application for a new right-of-way instead.
    (b) A grantee may request that we amend a right-of-way to make an 
administrative modification (i.e., a modification that is clerical in 
nature, for example to correct the legal description) without meeting 
consent requirements, as long as the grantee provides landowners with 
written notice. For all other amendments, the grantee must meet the 
consent requirements in Sec.  169.107 and obtain our approval.


Sec.  169.205  What is the approval process for an amendment of a 
right-of-way?

    (a) When we receive an amendment for our approval, we will notify 
the grantee of the date we receive it. We have 30 days from receipt of 
the executed amendment, proof of required consents, and required 
documentation (including but not limited to a corrected legal 
description, if any, and NEPA compliance) to approve or disapprove the 
amendment. Our determination whether to approve the amendment will be 
in writing and will state the basis for our approval or disapproval.
    (b) If we need additional time to review, our letter informing the 
parties that we need additional time for review must identify our 
initial concerns and invite the parties to respond within 15 days of 
the date of the letter. We have 30 days from sending the letter 
informing the parties that we need additional time to approve or 
disapprove the amendment.
    (c) If we do not meet the deadline in paragraph (a) of this 
section, or paragraph (b) of this section if applicable, the grantee or 
Indian landowners may take appropriate action under Sec.  169.304.


Sec.  169.206  How will BIA decide whether to approve an amendment of a 
right-of-way?

    (a) We may disapprove a request for an amendment of a right-of-way 
only if at least one of the following is true:
    (1) The Indian landowners have not consented to the amendment under 
Sec.  169.107 and we have not consented on their behalf under Sec.  
169.108;
    (2) The grantee's sureties for the bonds or alternative securities 
have not consented;
    (3) The grantee is in violation of the right-of-way grant;
    (4) The requirements of this subpart have not been met; or
    (5) We find a compelling reason to withhold approval in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the amendment is in their best interest.
    (c) We may not unreasonably withhold approval of an amendment.

Assignments


Sec.  169.207  May a grantee assign a right-of-way?

    (a) A grantee may assign a right-of-way by:
    (1) Meeting the consent requirements in Sec.  169.107, unless the 
grant expressly allows for assignments without further consent; and
    (2) Either obtaining our approval, or meeting the conditions in 
paragraph (b) of this section.
    (b) A grantee may assign a right-of-way without BIA approval only 
if:
    (1) The original right-of-way grant expressly allows for assignment 
without BIA approval; and
    (2) The assignee and grantee provide a copy of the assignment and 
supporting documentation to BIA for recording in the LTRO within 30 
days of the assignment.
    (c) Assignments that are the result of a corporate merger, 
acquisition, or transfer by operation of law are

[[Page 72546]]

excluded from these requirements, except for the requirement to provide 
a copy of the assignment and supporting documentation to BIA for 
recording in the LTRO within 30 days and to the tribe for tribal land.


Sec.  169.208  What is the approval process for an assignment of a 
right-of-way?

    (a) When we receive an assignment for our approval, we will notify 
the grantee of the date we receive it. If our approval is required, we 
have 30 days from receipt of the executed assignment, proof of any 
required consents, and any required documentation to approve or 
disapprove the assignment. Our determination whether to approve the 
assignment will be in writing and will state the basis for our approval 
or disapproval.
    (b) If we do not meet the deadline in this section, the grantee or 
Indian landowners may take appropriate action under Sec.  169.304.


Sec.  169.209  How will BIA decide whether to approve an assignment of 
a right-of-way?

    (a) We may disapprove an assignment of a right-of-way only if at 
least one of the following is true:
    (1) The Indian landowners have not consented to the assignment 
under Sec.  169.107 and their consent is required;
    (2) Sufficient bonding and/or insurance are not in place;
    (3) The grantee is in violation of the right-of-way grant;
    (4) The assignee does not agree to be bound by the terms of the 
right-of-way grant;
    (5) The requirements of this subpart have not been met; or
    (6) We find a compelling reason to withhold approval in order to 
protect the best interests of the Indian landowners.
    (b) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the assignment is in their best 
interest.
    (c) We may not unreasonably withhold approval of an assignment.

Mortgages


Sec.  169.210  May a grantee mortgage a right-of-way?

    A grantee may mortgage a right-of-way, if the grant expressly 
allows mortgaging. The grantee must meet the consent requirements in 
Sec.  169.107, unless the grant expressly allows for mortgaging without 
consent, and must obtain our approval for the mortgage.


Sec.  169.211  What is the approval process for a mortgage of a right-
of-way?

    (a) When we receive a right-of-way mortgage for our approval, we 
will notify the grantee of the date we receive it. We have 30 days from 
receipt of the executed mortgage, proof of required consents, and 
required documentation to approve or disapprove the mortgage. Our 
determination whether to approve the mortgage will be in writing and 
will state the basis for our approval or disapproval.
    (b) If we do not meet the deadline in this section, the grantee or 
Indian landowners may take appropriate action under Sec.  169.304.


Sec.  169.212  How will BIA decide whether to approve a mortgage of a 
right-of-way?

    (a) We may disapprove a right-of-way mortgage only if at least one 
of the following is true:
    (1) The Indian landowners have not consented;
    (2) The grantee's sureties for the bonds have not consented;
    (3) The requirements of this subpart have not been met; or
    (4) We find a compelling reason to withhold approval in order to 
protect the best interests of the Indian landowners.
    (b) In making the finding required by paragraph (a)(4) of this 
section, we may consider whether:
    (1) The mortgage proceeds would be used for purposes unrelated to 
the right-of-way purpose; and
    (2) The mortgage is limited to the right-of-way.
    (c) We will defer, to the maximum extent possible, to the Indian 
landowners' determination that the mortgage is in their best interest.
    (d) We may not unreasonably withhold approval of a right-of-way 
mortgage.

Subpart E--Effectiveness


Sec.  169.301  When will a right-of-way document be effective?

    (a) A right-of-way document will be effective on the date we 
approve the right-of-way document, even if an appeal is filed under 
part 2 of this chapter.
    (b) The right-of-way document may specify a date on which the 
grantee's obligations are triggered. Such date may be before or after 
the approval date under paragraph (a) of this section.


Sec.  169.302  Must a right-of-way be recorded?

    (a) Any right-of-way document must be recorded in our LTRO with 
jurisdiction over the affected Indian land.
    (1) We will record the right-of-way document immediately following 
our approval or granting.
    (2) In the case of assignments that do not require our approval 
under Sec.  169.207(b), the parties must provide us with a copy of the 
assignment and we will record the assignment in the LTRO with 
jurisdiction over the affected Indian land.
    (b) The tribe must record right-of-way documents for the following 
types of rights-of-way in the LTRO with jurisdiction over the affected 
Indian lands, even though BIA approval is not required:
    (1) Grants on tribal land for a tribal utility under Sec.  169.4;
    (2) Grants on tribal land under a special act of Congress 
authorizing grants without our approval under certain conditions.


Sec.  169.303  What happens if BIA denies a right-of-way document?

    If we deny the right-of-way grant, renewal, amendment, assignment, 
or mortgage, we will notify the parties immediately and advise the 
landowners and the applicant of their right to appeal the decision 
under part 2 of this chapter.


Sec.  169.304  What happens if BIA does not meet a deadline for issuing 
a decision on a right-of-way document?

    (a) If a Superintendent does not meet a deadline for granting or 
denying a right-of-way, renewal, amendment, assignment, or mortgage, 
the parties may file a written notice to compel action with the 
appropriate Regional Director.
    (b) The Regional Director has 15 days from receiving the notice to:
    (1) Grant or deny the right-of-way; or
    (2) Order the Superintendent to grant or deny the right-of-way 
within the time set out in the order.
    (c) Either party may file a written notice to compel action with 
the BIA Director if:
    (1) The Regional Director does not meet the deadline in paragraph 
(b) of this section;
    (2) The Superintendent does not grant or deny the right-of-way 
within the time set by the Regional Director under paragraph (b)(2) of 
this section; or
    (3) The initial decision on the right-of-way, renewal, amendment, 
assignment, or mortgage is with the Regional Director, and he or she 
does not meet the deadline for such decision.
    (d) The BIA Director has 15 days from receiving the notice to:
    (1) Grant or deny the right-of-way; or
    (2) Order the Regional Director or Superintendent to grant or deny 
the right-of-way within the time set out in the order.
    (e) If the Regional Director or Superintendent does not grant or 
deny the right-of-way within the time set out

[[Page 72547]]

in the order under paragraph (d)(2) of this section, then the BIA 
Director must issue a decision within 15 days from the expiration of 
the time set out in the order.
    (f) The parties may file an appeal from our inaction to the 
Interior Board of Indian Appeals if the BIA Director does not meet the 
deadline in paragraph (d) or (e) of this section.
    (g) The provisions of 25 CFR 2.8 do not apply to the inaction of 
BIA officials with respect to a granting or denying a right-of-way, 
renewal, amendment, assignment, or mortgage under this subpart.


Sec.  169.305  Will BIA require an appeal bond for an appeal of a 
decision on a right-of-way document?

    (a) If a party appeals our decision on a right-of-way document, 
then the official to whom the appeal is made may require the appellant 
to post an appeal bond in accordance with part 2 of this chapter. We 
will not require an appeal bond if the tribe is a party to the appeal 
and requests a waiver of the appeal bond.
    (b) The appellant may not appeal the appeal bond decision. The 
appellant may, however, request that the official to whom the appeal is 
made reconsider the bond decision, based on extraordinary 
circumstances. Any reconsideration decision is final for the 
Department.

Subpart F--Compliance and Enforcement


Sec.  169.401  What is the purpose and scope of this subpart?

    This subpart describes the procedures we use to address compliance 
and enforcement related to rights-of-way on Indian land. Any 
abandonment, non-use, or violation of the right-of-way grant or right-
of-way document, including but not limited to encroachments beyond the 
defined boundaries, accidental, willful, and/or incidental trespass, 
unauthorized new construction, changes in use not permitted in the 
grant, and late or insufficient payment may result in enforcement 
actions including, but not limited to, cancellation of the grant.


Sec.  169.402  Who may investigate compliance with a right-of-way?

    (a) BIA may investigate compliance with a right-of-way.
    (1) If an Indian landowner notifies us that a specific abandonment, 
non-use, or violation has occurred, we will promptly initiate an 
appropriate investigation.
    (2) We may enter the Indian land subject to a right-of-way at any 
reasonable time, upon reasonable notice, and consistent with any notice 
requirements under applicable tribal law and applicable grant 
documents, to protect the interests of the Indian landowners and to 
determine if the grantee is in compliance with the requirements of the 
right-of-way.
    (b) The tribe with jurisdiction may investigate compliance 
consistent with tribal law.


Sec.  169.403  May a right-of-way provide for negotiated remedies?

    (a) The tribe and the grantee on tribal land may negotiate remedies 
for a violation, abandonment, or non-use. The negotiated remedies must 
be stated in the tribe's consent to the right-of-way grant, which BIA 
will then incorporate into the grant itself. The negotiated remedies 
may include, but are not limited to, the power to terminate the right-
of-way grant. If the negotiated remedies provide one or both parties 
with the power to terminate the grant:
    (1) BIA approval of the termination is not required;
    (2) The termination is effective without BIA cancellation; and
    (3) The tribe must provide us with written notice of the 
termination so that we may record it in the LTRO.
    (b) The Indian landowners and the grantee to a right-of-way grant 
on individually owned Indian land may negotiate remedies, so long as 
the consent also specifies the manner in which those remedies may be 
exercised by or on behalf of the Indian landowners of the majority 
interest under Sec.  169.107. If the negotiated remedies provide one or 
both parties with the power to terminate the grant:
    (1) BIA concurrence with the termination is required to ensure that 
the Indian landowners of the applicable percentage of interests have 
consented; and
    (2) BIA will record the termination in the LTRO.
    (c) The parties must notify any surety of any violation that may 
result in termination and the termination of a right-of-way.
    (d) Negotiated remedies may apply in addition to, or instead of, 
the cancellation remedy available to us, as specified in the right-of-
way grant. The landowners may request our assistance in enforcing 
negotiated remedies.
    (e) A right-of-way grant may provide that violations will be 
addressed by a tribe, and that disputes will be resolved by a tribal 
court, any other court of competent jurisdiction, or by a tribal 
governing body in the absence of a tribal court, or through an 
alternative dispute resolution method. We may not be bound by decisions 
made in such forums, but we will defer to ongoing actions or 
proceedings, as appropriate, in deciding whether to exercise any of the 
remedies available to us.


Sec.  169.404  What will BIA do about a violation of a right-of-way 
grant?

    (a) In the absence of actions or proceedings described in Sec.  
169.403 (negotiated remedies), or if it is not appropriate for us to 
defer to the actions or proceedings, we will follow the procedures in 
paragraphs (b) and (c) of this section. We will consult with the tribe 
for tribal land or, where feasible, communicate with Indian landowners 
for individually owned Indian land, and determine whether a violation 
has occurred.
    (b) If we determine there has been a violation of the conditions of 
a grant, other than a violation of payment provisions covered by 
paragraph (c) of this section, we will promptly send the grantee a 
written notice of violation.
    (1) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to Indian landowners for 
individually owned Indian land.
    (2) The notice of violation will advise the grantee that, within 10 
business days of the receipt of a notice of violation, the grantee 
must:
    (i) Cure the violation and notify us, and the tribe for tribal 
land, in writing that the violation has been cured;
    (ii) Dispute our determination that a violation has occurred; or
    (iii) Request additional time to cure the violation.
    (3) The notice of violation may order the grantee to cease 
operations under the right-of-way grant.
    (c) A grantee's failure to pay compensation in the time and manner 
required by a right-of-way grant is a violation, and we will issue a 
notice of violation in accordance with this paragraph.
    (1) We will send the grantees a written notice of violation 
promptly following the date on which the payment was due.
    (2) We will send a copy of the notice of violation to the tribe for 
tribal land, or provide constructive notice to the Indian landowners 
for individually owned Indian land.
    (3) The notice of violation will require the grantee to provide 
adequate proof of payment.
    (d) The grantee will continue to be responsible for the obligations 
in the grant until the grant expires, or is terminated or cancelled, as 
well as any reclamation or other obligations that survive the end of 
the grant.

[[Page 72548]]

Sec.  169.405  What will BIA do if the grantee does not cure a 
violation of a right-of-way grant on time?

    (a) If the grantee does not cure a violation of a right-of-way 
grant within the required time period, or provide adequate proof of 
payment as required in the notice of violation, we will consult with 
the tribe for tribal land or, where feasible, communicate with Indian 
landowners for individually owned Indian land, and determine whether:
    (1) We should cancel the grant;
    (2) The Indian landowners wish to invoke any remedies available to 
them under the grant;
    (3) We should invoke other remedies available under the grant or 
applicable law, including collection on any available bond or, for 
failure to pay compensation, referral of the debt to the Department of 
the Treasury for collection; or
    (4) The grantee should be granted additional time in which to cure 
the violation.
    (b) Following consultation with the tribe for tribal land or, where 
feasible, communication with Indian landowners for individually owned 
Indian land, we may take action to recover unpaid compensation and any 
associated late payment charges.
    (1) We need not cancel the grant or give any further notice to the 
grantee before taking action to recover unpaid compensation.
    (2) We may take action to recover any unpaid compensation even 
though we cancel the grant.
    (c) If we decide to cancel the grant, we will send the grantee a 
cancellation letter by certified mail, return receipt requested, within 
5 business days of our decision. We will send a copy of the 
cancellation letter to the tribe for tribal land, and will provide 
Indian landowners for individually owned Indian land with actual notice 
of the cancellation. The cancellation letter will:
    (1) Explain the grounds for cancellation;
    (2) If applicable, notify the grantee of the amount of any unpaid 
compensation or late payment charges due under the grant;
    (3) Notify the grantee of the grantee's right to appeal under part 
2 of this chapter, including the possibility that the official to whom 
the appeal is made may require the grantee to post an appeal bond;
    (4) Order the grantee to vacate the property within the timeframe 
reflected in the termination terms of the grant, or within 31 days of 
the date of receipt of the cancellation letter, or within such longer 
period of time in extraordinary circumstances considering the 
protection of trust resources and the best interest of the Indian 
landowners, if an appeal is not filed by that time; and
    (5) Order the grantee to take any other action BIA deems necessary 
to protect the Indian land.
    (d) We may invoke any other remedies available to us under the 
grant, including collecting on any available bond, and the Indian 
landowners may pursue any available remedies under tribal law.
    (e) We will issue an appropriate instrument cancelling the right-
of-way and transmit it to the LTRO pursuant to 25 CFR part 150 for 
recording and filing.


Sec.  169.406  Will late payment charges, penalties, or special fees 
apply to delinquent payments due under a right-of-way grant?

    (a) Late payment charges and penalties will apply as specified in 
the grant. The failure to pay these amounts will be treated as a 
violation.
    (b) We may assess the following special fees to cover 
administrative costs incurred by the United States in the collection of 
the debt, if compensation is not paid in the time and manner required, 
in addition to the late payment charges that must be paid to the Indian 
landowners under the grant:

------------------------------------------------------------------------
        The grantee will pay . . .                    For . . .
------------------------------------------------------------------------
(1) $50.00................................  Any dishonored check.
(2) $15.00................................  Processing of each notice or
                                             demand letter.
(3) 18 percent of balance due.............  Treasury processing
                                             following referral for
                                             collection of delinquent
                                             debt.
------------------------------------------------------------------------

Sec.  169.407  How will payment rights relating to a right-of-way grant 
be allocated?

    The right-of-way grant may allocate rights to payment for any 
proceeds, trespass damages, condemnation awards, settlement funds, and 
other payments between the Indian landowners and the grantee. If not 
specified in the grant, applicable policy, order, award, judgment, or 
other document, the Indian landowners will be entitled to receive these 
payments.


Sec.  169.408  What is the process for cancelling a right-of-way for 
non-use or abandonment?

    (a) We may cancel, in whole or in part, any rights-of-way granted 
under this part 30 days after mailing written notice to the grantee at 
its latest address, for a nonuse of the right-of-way for a consecutive 
2-year period for the purpose for which it was granted. If the grantee 
fails to correct the basis for cancellation by the 30th day after we 
mailed the notice, we will issue an appropriate instrument cancelling 
the right-of-way and transmit it to the LTRO pursuant to part 150 of 
this chapter for recording and filing.
    (b) We may cancel, in whole or in part, any rights-of-way granted 
under this part immediately upon abandonment of the right-of-way by the 
grantee. We will issue an appropriate instrument cancelling the right-
of-way and transmit it to the LTRO pursuant to part 150 of this chapter 
for recording and filing.
    (c) The cancellation notice will notify the grantee of the 
grantee's right to appeal under part 2 of this chapter, including the 
possibility of that the official to whom the appeal is made will 
require the grantee to post an appeal bond.


Sec.  169.409  When will a cancellation of a right-of-way grant be 
effective?

    (a) A cancellation involving a right-of-way grant will not be 
effective until 31 days after the grantee receives a cancellation 
letter from us, or 41 days from the date we mailed the letter, 
whichever is earlier.
    (b) The cancellation decision will not be effective if an appeal is 
filed unless the cancellation is made immediately effective under part 
2 of this chapter. When a cancellation decision is not immediately 
effective, the grantee must continue to pay compensation and comply 
with the other terms of the grant.


Sec.  169.410  What will BIA do if a grantee remains in possession 
after a right-of-way expires or is terminated or cancelled?

    If a grantee remains in possession after the expiration, 
termination, or cancellation of a right-of-way, and is not accessing 
the land to perform reclamation or other remaining grant obligations, 
we may treat the unauthorized possession as a trespass under applicable 
law and will communicate with the Indian landowners in making the 
determination whether to treat the unauthorized possession as a 
trespass. Unless the parties have notified us in writing that they are 
engaged in good faith negotiations to renew or obtain a new right-of-
way, we may take action to recover possession on behalf of the Indian 
landowners, and pursue any additional remedies available under 
applicable law, such as a forcible entry and detainer action. The 
holdover time will be charged against the new term.

[[Page 72549]]

Sec.  169.411  Will BIA appeal bond regulations apply to cancellation 
decisions involving right-of-way grants?

    (a) Except as provided in paragraph (b) of this section, the appeal 
bond provisions in part 2 of this chapter will govern appeals from 
right-of-way cancellation decisions.
    (b) The grantee may not appeal the appeal bond decision. The 
grantee may, however, request that the official to whom the appeal is 
made reconsider the appeal bond decision, based on extraordinary 
circumstances. Any reconsideration decision is final for the 
Department.


Sec.  169.412  When will BIA issue a decision on an appeal from a 
right-of-way decision?

    BIA will issue a decision on an appeal from a right-of-way decision 
within 60 days of receipt of all pleadings.


Sec.  169.413  What if an individual or entity takes possession of or 
uses Indian land or BIA land without a right-of-way or other proper 
authorization?

    If an individual or entity takes possession of, or uses, Indian 
land or BIA land without a right-of-way and a right-of-way is required, 
the unauthorized possession or use is a trespass. An unauthorized use 
within an existing right-of-way is also a trespass. We may take action 
to recover possession, including eviction, on behalf of the Indian 
landowners and pursue any additional remedies available under 
applicable law. The Indian landowners may pursue any available remedies 
under applicable law, including applicable tribal law.


Sec.  169.414  May BIA take emergency action if Indian land is 
threatened?

    (a) We may take appropriate emergency action if there is a natural 
disaster or if an individual or entity causes or threatens to cause 
immediate and significant harm to Indian land or BIA land. Emergency 
action may include judicial action seeking immediate cessation of the 
activity resulting in or threatening the harm.
    (b) We will make reasonable efforts to notify the individual Indian 
landowners before and after taking emergency action on Indian land. In 
all cases, we will notify the Indian landowners after taking emergency 
action on Indian land. We will provide written notification of our 
action to the Indian tribe exercising jurisdiction over the Indian land 
before and after taking emergency action on Indian land.


Sec.  169.415  How will BIA conduct compliance and enforcement when 
there is a life estate on the tract?

    (a) We may monitor the use of the land, as appropriate, and will 
enforce the terms of the right-of-way on behalf of the owners of the 
remainder interests, but will not be responsible for enforcing the 
right-of-way on behalf of the life tenant.
    (b) The life tenant may not cause or allow permanent injury to the 
land.

    Dated: November 3, 2015.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2015-28548 Filed 11-18-15; 8:45 am]
 BILLING CODE 4337-15-P