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Energy bills could affect rights of way

WASHINGTON – The week of June 27 has been designated “Energy Week” in Congress, meaning energy bills could be primed to move in advance of the July 4 congressional recess. And in advance of its Aug. 7 issue date, a study on energy-related rights of way is scheduled for circulation in draft at the start of July. Putting two and two together, tribes are making their presence known on Capitol Hill.

“What we’re scared of is one of the power companies putting something undefined on these bills to do an end-run around us,” said Maurice Lyons, chairman of the Morongo Band of Mission Indians in California. The band has a strong stake in rights of way law because many of the utility wires, pipelines and aqueducts that feed the Los Angeles basin traverse its land or airspace.

“The real concern here,” added Bill Kahrl, a consultant to the Morongo council, “is that this study could be used as a springboard to do away with consent.”

The study, mandated by the Energy Policy Act of 2005, was a bone thrown to El Paso Natural Gas when it failed to get its way in the legislation. The Enron-tarnished energy giant was in contentious negotiations with the Navajo Nation over rights of way renewals. With serious money at stake over the amount it paid per rod of pipeline in return for rights of way, the utility provider asked the New Mexico Oil and Gas Association to advocate for a law authorizing the Secretary of the Interior Department to grant rights of way on reservations without tribal consent.

The proposal worked against the self-determining thrust of the bill’s Indian title, tribal leaders made their opposition known and Congress responded with wariness. The Energy Policy Act’s sponsor, Sen. Pete Domenici, R-N.M., eventually turned to the conventional device for continuing an engagement without going so far as agreement – a study, inserted into the act as Section 1813.

Monitors in Washington note that not every study is a bad one; and that this one, conducted by the departments of Energy and Interior, actually shows signs of emphasizing tribal contributions to national energy preparedness and supply, while minimizing the issues that come into play in most rights-of-way negotiations. But the study’s proponents have been willing once to imply that a tribe might stand in the way of the national energy interest in order to negotiate a higher price for its rights of way on an oil or gas pipeline, and Energy Week shapes up as the time to move energy legislation in Congress. So the word among tribes is that they’ve got to be vigilant against riders and midnight riders – undebated or last-minute amendments – that could be attached to larger energy legislation. A draft of the study due to Congress Aug. 7 could feed the notion that national energy security demands a power of eminent domain at Interior over tribal rights of way.

The Council of Energy Resource Tribes and the National Congress of American Indians are organizing gatherings and Capitol Hill visitations for tribal leaders June 19 – 21, and again June 27 – 29. A handful of tribal leaders and lobbyists, representing several dozen tribes or more, gathered in Washington for briefings on June 20.

The departments of Energy and Interior have identified July 10 in Phoenix, Ariz., and July 13 at the Mission Band of Morongo Indians in California, as the likely dates of consultation meetings with tribes to seek comments on the draft report. By statute, the study must analyze historical compensation rates for rights of way, recommend standards of fair and appropriate compensation, assess the sovereignty implications of energy rights of way “applications” on tribal lands and analyze “relevant national energy transportation policies.”

Tribes have been participating in the study – mostly tribes with rights of way issues to consider. But several observers consider the study a potential “thin end of the wedge” against sovereignty and self-determination. Waltona Manion, a consultant to the Morongo, said the change in law sought by the NMOGA could touch every tribe by granting Interior the authority to override tribal council decisions. “There are a lot of tribes that do not have rights of way that have not dialed into the fact that if the utilities get their way, the change in the law could have a fundamental impact on their sovereignty. ... Utilities have been very active on the Hill on this.”

Lyons has visited many congressional offices, asking congressional members to be on guard against any amendment offered on tribal rights of way. “A lot of them had no idea this was going on,” he said.