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TERA to provide a boost for energy development

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DENVER - Native nations' energy development may get a boost with the greater tribal control provided under final regulations for tribal energy resource agreements presented to the public April 29 by the BIA.

TERA will make it possible for tribal nations to submit voluntary umbrella resource development plans to the BIA, bypassing the former, lengthy case-by-case approvals required from the bureau in the past.

The regulations represent the final hurdle to implementation of the streamlined tribal energy development program.

Tribal representatives from across the U.S. will be asked to advise the BIA on implementing TERA and on other energy-related matters, according to Bob Middleton, director of the Office of Indian Energy and Economic Development.

Although the TERA concept was authorized in the 2005 Energy Policy Act, the final regulations were not approved until April 9 and were presented in a daylong public session in Denver for tribal and other attendees.

Although applications for the tribal energy agreements may now be submitted, none has been received, said Darryl Francois, chief of the BIA's Division of Indian Energy Policy Development.

''We're committed to implementing the spirit of the law to enhance tribal self-determination,'' he said, but the BIA will also be working its way step-by-step through the details of a new process.

Although the program may speed up energy-related leases and business and rights-of-way agreements by creating a comprehensive approval method, individual TERA approval by the BIA can take up to one year.

TERA evolved from a multi-tribal initiative to reduce the red tape around applications for energy development activities on tribal lands, where delay sometimes resulted in lost business opportunities or lower profits.

Now, by taking the reins of tribal energy development, tribal nations also assume some of the risk and responsibility formerly held by the BIA, in that the U.S. will not generally be responsible for losses to tribes under TERA, and tribes may have to bear the financial cost of TERA administration.

Shenan Atcitty, attorney for the Jicarilla Apache Tribe of Dulce, N.M., said the TERA program would cut through red tape and generally provide an advantage to tribal business, but some questions remain about the BIA's role if, for example, fraud occurred on the part of an entity doing business with the tribe under the new agreement.

Curtis Cesspooch, Uintah and Ouray Ute tribal chairman, Fort Duchesne, Utah, raised several concerns about tribal sovereignty; among them, a concern that federal laws, rather than voluntary TERA participation, could be imposed on the process.

He questioned whether there is a diminished role and reduced responsibility for the BIA in tribal trust and treaty obligations.

Cesspooch also said public involvement required under TERA constitutes an unwarranted intrusion into tribal affairs.

Stanlee Ann Mattingly, an Osage tribal member from Pawhuska, Okla., said Osage lands have dwindled to 10 percent of a former 1.4 million acres and, because tribal and private lands are interspersed, tribal access can be blocked by private landowners. Lack of access could not be prevented by TERA, she was told, but existing federal resources to gain passage could continue to be used.

In responding to a number of questions, Middleton, Francois and Catherine Freels, senior analyst in the BIA's Division of Indian Energy Policy Development, said decisions may have to be made on a case-by-case basis or in the TERA pre-approval consultation stage.

Other TERA features described in the public meeting include:

"TERA can be voluntarily rescinded or amended by tribes.

"A TERA tribe can partner with other tribal nations or private industry through a tribal energy resource development organization of which the TERA tribe is a member.

"Environmental compliance, including public review, is required.

"Under TERA, parties to existing contracts have to be notified and agreement secured if the existing contracts are to be amended or modified.

"Tribes applying for TERA agree to initial yearly review and evaluation, as well as to an assessment of the tribes' capability and experience in energy development and business management.

"Tribes can voluntarily rescind TERA, and the secretary of the Interior Department can retake physical Indian trust assets if the assets are in ''imminent jeopardy.''

"TERA may cover all or part of tribal lands and/or the energy activities on the lands, and other agreements can be undertaken on non-TERA lands or enterprises.

Although no specific funds are allocated for environmental compliance, some resources may exist and could be identified in pre-approval consultation.