Deadline delayed
Problems seen with energy corridor

By Kathy Helms
Diné Bureau

WINDOW ROCK — The deadline has been extended to Sept. 30 for a draft report to Congress on a study of energy rights-of-way across Indian lands and an analysis of historic rates of compensation. A public hearing is set Wednesday at the Carlisle Hotel in Albuquerque.

The report by the Secretary of Energy and the Secretary of the Interior also reviews the authority of Congress to condemn lands as an "exercise of eminent domain by the government."

Richard Wheatley, public information officer for El Paso Corp. in Houston, said the report mandated by Section 1813 of the Energy Policy Act of 2005 provides Congress with a list of legislative options to address the difficulties that arise in right-of-way negotiations.

"Congress has the authority to solve the problem," Wheatley said. "These options include eminent domain, based on fair market value. Although the study focused significantly on the past, it did identify trends that, if not addressed, could adversely affect our nation's energy infrastructure."

Wheatley said the draft report by DOI and DOE clearly notes that the costs of energy rights-of-way are increasing and the duration of rights-of-way agreements are decreasing.

"There is increasing uncertainty and delays in negotiating right-of-way agreements, with tribes demanding ever-greater 'consent' payments in some cases, demanding outright ownership of transmission infrastructure crossing tribal lands," he said.

"We hope that the final report will address the fact that serious difficulties arise when tribes charge outlandish rights-of-way fees hundreds of times higher than the fair market value of the land essentially creating a right-of-way tax on consumers," Wheatley said.

Against the grain
According to Navajo Nation Attorney General Louis Denetsosie, the Section 1813 study arose following a breakdown in negotiations with El Paso Natural Gas because the company was unwilling to pay the Navajo Nation what its competitors have paid for comparable rights-of-way over Navajo trust land.

"Thus, it seeks the Secretary of Interior to violate (his) own regulations, contravene federal policy promoting respect for tribal decision making, and breach (his) trust duties to the country's largest but most destitute Indian nation," he said.

"El Paso urges this radical action to avoid a cost that would amount to at most ... about $.17 per month on an average home gas bill," he said.

Navajo Nation consent to secretarial grants of rights-of-way across Navajo land is required by treaty, statute, regulation, and the Secretary's trust duty, according to Denetsosie.

"EPNG's arguments to the contrary have been rejected by the Secretary and the United States Department of Justice when another pipeline company made a similar run at the Navajo Nation's trustee," he said, citing "Transwestern Pipeline Co. v Acting Deputy Assistant Secretary-Indian Affairs Operations."

Denetsosie and Albuquerque Attorney Paul Frye said El Paso "seeks to create a false crisis by its own obstinance."

"The United States owes a duty as a trustee to the Navajo Nation regarding grants of easements for rights-of-way, and the breach of that duty would give rise to a right of compensation against the federal trustee," they said.

Resources Committee Chairman George Arthur said Friday that there was a similar discussion of rights-of-way and the threat of using eminent domain several years back. Based on the previous discussions, he said, "I don't think this is going to be feasible. If there's going to be a corridor, it's going to also have to be done respecting the local jurisdictions of Indian tribes throughout the corridor, from one end to the other."

Though he does not have the specifics on the width of the corridor which is to extend from Leupp, Ariz., to Farmington, N.M., Arthur said it is possible that the corridor could create another relocation issue for the Navajo people.

FORCED RELOCATION?
"Certainly if you look at a map and say, 'We're going to go from here to point B,' realizing there might be major cities in the corridor, what are they going to do there? It doesn't make a difference if there's one hogan that needs to be relocated or 100,000 hogans that need to be relocated, it's still an issue that cannot be arbitrarily done," he said.

According to Arthur, the Navajo Nation works on a different format when it comes to the use of eminent domain."It is spelled out. Eminent domain belongs to the Navajo Nation president to exercise. He's the only one that can do it."

Arthur said that eminent domain was used once by Navajo Nation President Peterson Zah in reference to constructing the Chinle airport, and that its implementation did not go smoothly."There were still major disputes with it throughout the development of the airport in Chinle,"he said.

"The United States has trust responsibility, in this case, to the Navajo Nation. It would be very difficult for El Paso to go to the feds and seek relief through the means of eminent domain. Eminent domain also is a factor in, say, metropolitan areas. They have their own process. Even though states are considered sovereign they have their own sovereign status they can't impose eminent domain on metropolitan cities or counties,"according to Arthur.

"So the feds cannot impose that against us. They're supposedly on the same team."

Arthur said there is an executive order in place issued by President Bill Clinton."As far as I know, it was never removed. He stated that all federal agencies have trust responsibilities, not just the Department of Interior. So whomever this relief would be sought with, would then be having a conflict within their role as having trust for Indian tribes.

"I just don't see how that would be a way for companies to find relief. You think this is a mess now? Wait till that kicks in,"he said.

"I think what the Nation's representatives are hoping is that these discussions will be maintained at tribal levels. Navajo should be left with the ultimate authority to address and negotiate out their interest in whatever rights-of-way or land assignments that they want to and in a manner that they feel is in the best interests of the Nation,"Arthur said.