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Rights of way report to head to Congress

WASHINGTON – In advance of an end-of-September scheduled submission to Congress of a report on tribal energy rights of way, tribes have done a good job of addressing their concerns with a draft report and of asserting their role in rights of way decisions.

The assessment comes from Paul Moorehead, a lobbyist on the issue with the firm of Gardner Carton & Douglas. As chief counsel to former Sen. Ben Nighthorse Campbell on the Senate Indian Affairs Committee, Moorehead had a role in crafting the Indian title of the Energy Policy Act.

Section 1813 of the Energy Policy Act of 2005 authorizes the departments of Energy and the Interior to undertake a study of tribal energy rights of way at the behest of energy companies that hoped to gain advantage from it in negotiations to renew such rights of way agreements on tribal lands. The section made it into the law after Campbell, Northern Cheyenne, retired from Congress.

Moorehead repeated the key findings of the report, echoing dozens of tribal comments registered with Energy and Interior representatives at August meetings: Tribal energy rights of way, and the negotiations around them, do not raise the cost of energy to consumers and do not inconvenience national energy security. He added that two messages must be impressed on Energy and the Interior before they turn the report in final: “Harden those two findings; tie them firmly to an unambiguous recommendation that Congress take no action at this time.”

Beyond that, Indian country has already delivered the message that if Congress were to base proposals on the Section 1813 report, it should do so not through amendments or last-minute riders but in “regular order” – that is, with hearings, witness testimony, the introduction of a bill and further debate.

Interior might be able to secure itself a helpful role in tribal energy rights of way negotiations, Moorehead said. A proper role for Interior would be to put tribes and their negotiating partners over the top in difficult, protracted negotiations – to, as it were, midwife through arbitration the most difficult births in a field where successful partnerships between tribes and privatesector businesses are characterized by creative solutions.