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Energy rights of way report approaches 'final draft' status

Comments due on Feb. 5

WASHINGTON - A report on energy rights of way on tribal lands is approaching final draft status, with comments on the latest draft due on Feb. 5. If the latest draft of Dec. 21 holds up, the report will recommend that Congress preserve the doctrine of tribal consent in energy rights of way negotiations on tribal lands.

The departments of Energy and the Interior have authored the report, as mandated by Section 1813 of the Energy Policy Act of 2005. The overriding concern of tribes has been that a few giants of the energy industry would seize upon it as a pretext to lobby Congress for an end to the current requirement of tribal consent in energy rights of way authorizations on tribal lands. Energy rights of way are increasingly lucrative and tribes, by general consent, have developed an ability to negotiate their renewal to greater advantage than in the past, at greater cost to the energy industry.

Energy industry lobbyists have in fact courted congressional members on the subject of the Section 1813 study, as anticipated. But tribes and Indian organizations too mounted an informational campaign on Capitol Hill as an earlier draft report took shape throughout the summer and fall of 2005. At field hearings around the country, one speaker after another emphasized that the first draft's own findings demonstrated no reason to change the tribal consent provision on rights of way authorizations. Yet a recommendation to make no changes had not been forthcoming.

''There's no fix to be fixed,'' said Zia Pueblo Gov. Peter Pino at a field hearing in Albuquerque, N.M., last August. Pino added that the report is an instrument of division in a field where cooperation and partnership between tribes and the private sector should thrive.

On the same occasion, Pueblo of Isleta Gov. J. Robert Benavides said Isleta supports one conclusion of the report - ''that there is no national level problem concerning energy rights of way on tribal lands. The departments [of Energy and the Interior] found no evidence that negotiations with the tribes have ever disrupted energy supplies or significantly increased energy costs.''

After a full slate of meetings and consultations with tribes and the energy industry, the draft report's latest recommendations are in keeping with its original findings.

''After careful consideration of the information presented and the alternative approaches identified, the Departments offer the following recommendations for the grant, expansion or renewal of rights-of-way in tribal lands. The Departments recommend that:

''Valuation of energy ROWS on tribal lands should continue to be based upon terms negotiated between the parties [tribes and energy companies].

''In the event that a failure of negotiations regarding the grant, expansion, or renewal of an energy ROW has a significant regional or national effect on the supply, price, or reliability of energy resources, the Departments recommend that Congress consider resolving such a situation through specific legislation, rather than making broader changes that would affect tribal sovereignty or self-determination generally.''

The report contains language reaffirming tribal sovereignty and self-determination, which it terms ''important in advancing oversight of energy ROWs and expanding energy production.''

Among other findings, the report states that ''the negotiation process for establishing or renewing rights-of-way on tribal land could benefit from mutually agreed upon practices, procedures, and actions that would better the understanding and collaboration among the parties,'' including ''comprehensive ROW inventories for tribal lands,'' best practices standards for energy ROW transactions, and a broader scope for energy ROW negotiations.

The latest draft of the Section 1813 report is online at Comments must be submitted by Feb. 5, by e-mail at (with a subject line of ''Section 1813 comments'') or by regular mail to Office of Indian Energy and Economic Development, ATTN: Section 1813 ROW Study, Room 20 - South Interior Building, 1951 Constitution Ave. NW, Washington, D.C. 20245.