INGAA Comments on BIA’s Proposed Rule on Rights-of-Way on Indian Land

INGAA appreciates BIA’s efforts to streamline the application, approval, renewal, and regulatory process for rights-of-way over Indian lands. As it currently exists, pipeline permitting is a protracted and decentralized process, and this is particularly true with respect to negotiating and re-negotiating rights-of-way over Indian lands. Even so, while the current structure lacks efficiency, INGAA finds BIA’s Proposed Regulations even more problematic than the existing process. In fact, where uncertainty currently exists, the Proposed Regulations only further muddy the waters. This is especially true in the following instances:

(1) The Proposed Regulations would apply retroactively to thousands of miles of pipeline in existing rights-of-way;
(2) The Proposed Regulations expressly seek to apply tribal law and jurisdiction over existing, pending, and future rights-of-way, in direct contravention of federal case law and previous BIA policy;
(3) The Proposed Regulations would remove the “fair market value” standard for compensation and valuation but fail to offer a workable alternative;
(4) The Proposed Regulations would require the posting of surety bonds but fail to identify any limits for such bonds or allow for nationwide bonding;
(5) The Proposed Regulations would require unachievable and unrealistic consent requirements for the assignment of and mortgaging of rights-of-way;
(6) The Proposed Regulations should limit expressly consent requirements for tribal ownership of fractional interests in allotted lands;
(7) The Proposed Regulations fail to provide reasonable time periods for approval or cancelation; and
(8) The trespass provisions of the Proposed Regulations are unworkable.
INGAA addresses each of these issues in the attached document, and respectfully requests that BIA withdraw the Proposed Regulations and start anew. When starting anew, INGAA requests that BIA work with all interested parties to develop a workable, fair, and appropriate regulatory scheme. INGAA is of the view that if BIA withdraws the Proposed Regulations – and subsequently engages all interested parties in the formulation of a new version of Regulations – such an approach would better serve all parties’ interests, including those of BIA.