ALBUQUERQUE, N.M. – Federal law requires that tribes must consent to a grant of rights of way across their lands, whether the rights of way are for roads, aqueducts, pipelines, power wires or flight paths.
Energy rights of way are increasingly lucrative. The ability of tribes to negotiate them fairly has increased in recent years, and many tribal energy rights of way agreements are coming up for renewal over the next decade.
Against this background, the energy industry has brought tribal energy rights of way before Congress in the form of a report that will be finalized and submitted by the end of September. The report, prepared by the departments of Energy and the Interior, may be seized upon in Congress as an occasion to modify or even cancel the tribal consent requirement, according to numerous tribal leaders and their representatives.
At a meeting in Albuquerque Aug. 30, tribes had a last chance to provide public feedback on the report directly to the departments before the Sept. 4 official deadline for comments.
Approximately 20 speakers told the departments their draft report is misguided, incomplete and misleading – misguided in that it offers Congress a list of “options” on tribal rights when the report’s own data supports only one option, namely to take no action; misleading for what it does not include about existing willful trespass by power companies on tribal lands, as well as for including unsubstantiated arguments under cover of language about what “could” be the case on various assertions by energy companies, about what they “indicate” and “contend” without evidential justification; and incomplete because it does not dwell on “historical malfeasance” at the expense of tribes in rights of way negotiations, or on the religious and cultural considerations around tribal rights of way.
Brian Collins, a senior tribal attorney representing the Skokomish in Washington, detailed some of the damage done to the tribe by power companies that have trespassed on its lands by seizing rights of way. “Without inclusion of such worst-case examples of energy development on right-of-way disputes involving treaty rights, tribal resources and tribal lands, the report to Congress lacks the necessary balance to accurately describe the effects of proposed energy right-of-way legislation.” Other speakers noted that tribes have been swindled in energy rights of way negotiations, by both energy companies and Interior or by BIA officials who collaborate with them in drafting meager agreements without tribal participation, then impose the agreements over tribal doubts and objections.
One speaker after another emphasized that the report’s own findings demonstrate no reason at all to change the status quo. “There’s no fix to be fixed,” said Zia Pueblo Gov. Peter M. Pino, adding that the report is an instrument of division in a field where cooperation and partnership between tribes and the private sector should thrive.
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.”
Richard Hughes, a Santa Fe attorney representing two other pueblos, said the findings expose the report for what it is – a way to give the wealthy energy sector a negotiating advantage over less-affluent and poor tribes. The energy industry may not have gotten the results it wanted from the draft report, he added. “They did get Congress to commandeer the efforts of two Cabinet departments on this study.”
Hughes remarked that Energy and Interior are aggressively meeting statutory deadlines that are routinely ignored in agency and departmental reports to Congress. “Here they are doing it; they are rushing things along, right on the deadline.” His clear implication was that the report may have a higher priority on Capitol Hill than is publicly known.
Other speakers touched on the various issues raised by the draft report, as follows:
* The free-market economy – competition keeping prices reasonable – should preclude price-fixing for tribal energy rights of way. The prices should be negotiated case by case.
* Fair-market valuation for tribal energy rights of way, a key concept pushed by energy companies in negotiating rights of way, relies on comparing the value of one property to another. But the value of tribal properties can’t be compared in a blanket way with private properties, as the energy industry has urged, due to Indian religious beliefs.
As a matter of economic efficiencies, private-sector companies hope for rights of way running in the straightest line possible, from A to B. If a graveyard or other important site lies in the path of that straight line, they move it. “We don’t do that in Indian country,” said Ben Nighthorse Campbell, the former U.S. senator. “Our ancestors, our people that have been returned to mother earth, that’s where they’re supposed to stay. And I think that the report did not reflect – you can’t put a dollar value on that, and should not put a value, a dollar value on that. It has nothing to do with market value. It has to do with inherent and historic religious beliefs of our people.”
* The small sampling on which the report relies – case studies of four tribes and one energy company – is “inherently unreliable,” said Carol Harvey, a Navajo attorney with Nordhaus Law Firm in Albuquerque, because a sampling that small can’t yield findings that are valid for tribes or energy companies overall.