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Rights of way draft study is delayed

WASHINGTON – The draft of a study due to Congress on tribal rights of way has been delayed until mid-July. Meetings with tribes on the study, tentatively scheduled for July 10 and 13, will also be set back.

Paul Moorehead, representing the Council of Energy Resource Tribes for the firm of Gardner Carton & Douglas in Washington, said the Energy and Interior departments will still try to meet the study’s statutory completion date of Aug. 7.

The prospect of the study’s release in draft, originally scheduled for the first week in July, brought a roll call of tribal leaders to Washington for Capitol Hill sessions with congressional members and staff. Many tribes are due rights of way payments from utility companies for the electric power transmission wires, oil and gas pipelines, aqueducts, and fiber optic cables that traverse their trust lands.

Utility companies habitually exploited tribal rights of way before 1948, when Congress prohibited the Interior secretary from offering tribal land for use without tribal consent. Since then, tribes and utilities have negotiated rights of way payments, with fair market value as the minimum price permissible by law.

But with tribes gaining in negotiating skill and numerous agreements coming due for renewal, El Paso Natural Gas Co. and some industry allies approached Congress in hopes of empowering the Interior secretary to grant energy-related rights of way on tribal land without tribal consent. The industry prevailed only insofar as Sen. Pete Domenici, R-N.M., sponsor of the Energy Policy Act of 2005, agreed to authorize the Aug. 7 study in Section 1813 of the law. Numerous tribes fear the study could provide a pretext for legislation that undermines tribal consent in rights of way – a sovereignty issue for all tribes, according to the Morongo Band of Mission Indians, a leading rights of way tribe.

The National Congress of American Indians has adopted two resolutions on the Section 1813 study, one from November 2005 seeking limits on the scope of the study to energy corridors only and opposing “any erosion of tribal sovereignty or authority,” the other from June 2006 adopting 10 tribal principles on rights of way.

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Among the measures rejected by a broad coalition of tribes are perpetual rights of way for a one-time payment, rights of way agreements that automatically renew without benefit of negotiation and any form of “uniform standard or procedure” compensation that would impose land access payments without tribal consent.

Tribes have also argued hard against the industry’s contention that tribal rights of way payments raise the cost of power to consumers or threaten national energy security. Economists cited by the tribes estimate that tribal rights of way costs add 1.4 cents to every $100 in monthly consumer utility bills, a fraction of one percent compared with the 15 to 25 percent profit margin of utility companies. For that matter, the Morongo contend that EPNG has a track record that includes exploiting the California energy crisis of recent memory to such an extent that it is now repaying the state $1.62 billion as part of a consumer settlement.

As for national energy security, tribes have been aggressive in telling congressional members and the public that tribes are full and patriotic partners in supplying the nation’s energy needs. The message they’ve sent is to maintain the existing system because it works. The Morongo, along with the Ute of the Uintah and Ouray Reservation in Utah, have developed detailed case studies that demonstrate benefits to the tribes, the nation and utility providers under their specific rights of way agreements.

The Navajo Nation is not part of the formal tribal coalition on rights of way because its renewal negotiations with EPNG have proved so contentious. But in a show of support, the tribe sent a delegation to Washington from Dine Power Authority, a Navajo enterprise. As the tribal rights of way coalition spread out on Capitol Hill, the Navajo delegation made presentations designed to emphasize that energy projects and the tribal rights of way they depend on look pretty good when approached properly – that is, in partnership with tribes.

Desert Rock Energy Project and the Navajo Transmission Project are current DPA partnerships with Sithe Global Power LLC. The related initiatives expect to fill an electricity transmission gap between the generation-rich Four Corners region of New Mexico, and high-demand areas of the heavily populated southwest and southern California. A transmission line is expected to extend from New Mexico across northern Arizona to southern Nevada. According to DPA materials, the transmission project is the only one in the nation with environmental permits in place, and rights of way agreements are “substantially completed.”

Previous partners in transmission projects had wanted to do it their way, without proper trust for Navajo law, said Christoper Clark-Deschene, a consultant for the Navajo on Desert Rock and NTP. He and DPA General Manager Steven Begay described the projects at present as a case study of “best practices on how consent works.”

Moorehead said the heavy turnout of tribes on Capitol Hill made it possible to insist on “regular order” for any legislative initiative on tribal rights of way that might come of the study. Regular order – introduction of a measure in Congress, full hearings and witness testimony in the committees of jurisdiction, a committee vote, scheduled debate, scheduled votes – tends to rule out last-minute, undebated amendments, also known as riders or midnight riders.