The Right of Passage
Navajo AG: Tribes must have final say in right-of-way issues

By Kathy Helms
Diné Bureau

WINDOW ROCK — The Energy Policy Act of 2005, Section 368, requires the U.S. Department of Energy and other federal agencies designate new right-of-way corridors for energy development on federal lands.

Section 1813 of the act requires a federal study of energy rights-of-way across Indian lands. That study also includes an accompanying report on 1948-2006 historic rates of compensation for rights-of-way crossing Indian lands.

In comments submitted to the feds earlier this year on behalf of the Navajo Nation, Attorney General Louis Denetsosie said it is well known that the right-of-way compensation dispute between El Paso Natural Gas and the Navajo Nation prompted the Section 1813 study.

Initially, New Mexico Oil and Gas Association and El Paso proposed that Congress amend the 1948 Indian right-of-way statute to permit the Secretary of the Interior to grant rights-of-way for tribal lands over the objections of the tribe. Congress refused to do this, and instead directed the Section 1813 study be conducted.

Denetsosie said Congress first studied the tribal consent requirement from 1967 to 1969 when the Department of Interior proposed rules to eliminate the requirement from some tribes.

"The resulting report concluded that diluting the tribal consent requirement would be contrary to law, good government, democratic principles, property rights, and the pattern of modern Indian legislation, and that eliminating that requirement could lead to costly litigation in the Court of Claims."

He said that conclusion is contained in a House report known as "Disposal of Rights in Indian Tribal Lands Without Tribal Consent."

Present federal energy policy strongly favors tribal self-determination, "and that is the only federal policy that has worked," according to Denetsosie. "Dilution of the consent principle would, in the words of the House report, constitute 'an enormous shift of control away from the Indians' own local units of government to the Department of the Interior."

Navajo Nation Vice President Frank Dayish Jr. said Friday that the proposed West-Wide Energy Corridor, which will span 11 Western states, will cut through the reservation at a diagonal from Leupp, Ariz., to Farmington, N.M.

The Bureau of Land Management and the U.S. Forest Service, along with the Departments of Commerce and Defense were instructed in Section 368 of the Energy Policy Act to designate the corridors for electricity transmission and distribution facilities, and for oil, gas and hydrogen pipelines.

A Programmatic Environmental Impact Statement (PEIS) was due to Congress by Aug. 8. and was to evaluate issues surrounding designation of the energy corridors. Each of the federal agencies then will amend its respective land-use plan by designating appropriate corridors.

No problem
A public hearing on the Section 1813 Indian land rights-of-way portion of the energy bill will be Aug. 30 at the Carlisle Hotel in Albuquerque.

Denetsosie and Albuquerque Attorney Paul Frye made known the Nation's position on the rights-of-way study in comments submitted May 15 to the Office of Indian Energy and Economic Development. Denetsosie said the Navajo Nation report shows there is "simply not a problem" with respect to consent for rights-of-ways on tribal lands.

"The Navajo Nation has reached mutually acceptable terms with all of the energy transporters doing business on or over Navajo Nation lands since the regulations of the Interior Department made that requirement explicit for all tribes in 1951," he said.

"That record of accommodation extends to the present, with all energy companies except the El Paso Natural Gas Company able to negotiate right-of-way agreements with the Navajo Nation. "El Paso currently is operating under an interim arrangement while a longer-term agreement is being negotiated."

Even if the dispute with El Paso is not resolved by the end of 2006 when the interim agreement expires, the Navajo Nation Council has vowed that it would take no action that could result in the disruption of interstate transportation of natural gas, according to the attorney general.

"The Navajo Nation Council has made it quite clear that the 'Navajo Nation will not use its right to control Navajo land to harm other Americans,' " he said, referring to an Intergovernmental Relations Committee resolution.

Second time around
The Navajo Nation is urging the Departments of Interior and Energy to recommend that no legislation that might dilute the principle of tribal consent be considered.

As a result of the 1967-69 study, the Department of Interior retained its rule requiring the consent of all Indian nations for rights-of-way crossing their lands, according to Denetsosie. He argued that the House report addressed the "issues of principle" that the Section 1813 study is to address.

"The report found, and the Department of Interior apparently agreed, that the appropriate procedure for determining compensation for rights-of-way on Indian lands is by negotiation with the tribal land owner," he said, "and that the appropriate standard for fair compensation is the result of negotiation between the Indian nation and the applicant."

Denetsosie said verifiable data show that there is no problem regarding the tribal consent requirement for energy rights-of-way meriting the attention of Congress.

The tribal consent requirement has not and will not result in any jeopardy or harm to consumers, he said, and national energy security is enhanced, not diminished, by adherence to the consent principle.

Denetsosie said historic rates of compensation for tribal rights-of-way were often inadequate, especially when the federal government was granting rights to itself.

"The proper procedure for determining right-of-way consideration for tribes wishing to permit or allow continued entry by non-members is by arms-length negotiations and the proper standard for compensation is the business arrangement that results from those negotiations," he said.

"The tribal consent principle is consistent with important federal and tribal policies promoting tribal sovereignty and self-sufficiency; and continued respect for tribal decision-making is consistent with modern federal energy policy."