Feds want input on right-of-way impact on tribe
Public given short amount of time to study, comment on proposals

By Kathy Helms
Diné Bureau

WINDOW ROCK — The Department of Interior and the Department of Energy are kicking into high gear on the Energy Policy Act's congressionally mandated study of Energy Rights-of-Way on Tribal Lands.

DOI's Office of Indian Energy and Economic Development published a notice in the Federal Register Dec. 29 seeking public comment, giving the public less than 30 days to look at potential impacts to tribal lands and raise issues. Comments are due on or before Jan. 20.

The study mandated by Section 1813 of the Energy Policy Act of 2005 is due to Congress by Aug. 7. DOI and DOE are looking for direction from the public as to how to proceed with implementing Section 1813.

The Navajo Nation Council's Resources Committee is expected to conduct a work session this week to address what is viewed as potential threats to tribal sovereignty through provisions in the Energy Policy Act.

Sen. Pete Domenici, R-N.M., is considered architect of the policy, which was co-sponsored by Sen. Jeff Bingaman, D-N.M.

The act requires the right-of-way study to address four areas:

• An analysis of historical rates of compensation;
  
  
• Recommendations for appropriate standards to determine fair and appropriate compensation;
  
  
• An assessment of tribal self-determination and sovereignty interests implicated by applications for rights-of-way on tribal land; and,
  
  
• An analysis of relevant national energy transportation policies.

DOI and DOE say they plan to conduct a series of prescoping phone calls and meetings with selected tribal leaders, members of the energy industry, appropriate government entities, as well as affected businesses and consumers to discuss various aspects of the report.

The departments say participants in the prescoping work group will be identified through suggestions by tribal leaders, other prominent Indian groups, business associations and government organizations.

DOI and DOE plan to contract with a U.S. Department of Energy National Laboratory to prepare an analysis of historical rates of compensation for pipelines crossing Indian land using a case-study approach.

Navajo tribal officials say using historic rates to set today's right-of-way compensation would work against the tribe since the Navajo Nation has been historically underpaid for its leases. Also, many leases for rights-of-way across Navajoland are actually federal leases held by oil and gas companies. The tribe receives no compensation for those.

In order to address a right-of-way issue of tribal proportions, DOI and DOE plan to jointly conduct a two-day nationwide scoping meeting in February 2006, with presentations from all affected groups.

Reviewing policies
The intent of the meetings is to get input on appropriate standards and procedures for determining fair and appropriate compensation; tribal self-determination and sovereignty interests; and relevant national energy transportation policies.

In the Eastern Agency of the Navajo Nation, Strathmore Minerals plans to reopen and expand existing uranium mines located on Bureau of Land Management land. However, the access road to bring the uranium to market would be across Navajo trust land within the boundaries of the reservation.

Strathmore announced in March 2004 that it had acquired a 100 percent interest in the Ram Claims located in the Church Rock Mining District near the western end of the Grants Uranium Belt, as well as a 100 percent interest in the Roco Honda deposit located between Ambrosia Lake and Mt. Taylor in the central district.

The Diné Natural Resources Protection Act of 2005 which banned uranium mining and processing in Navajo Indian Country makes it clear that transporting the uranium across Navajoland would raise an issue of getting permission from the tribe by filing a right-of-way application.

The feds, however, are seeking to override tribal authority by letting the Secretary of Interior decide when rights-of-way are a matter of national energy security and to award compensation the Secretary deems fair, despite tribal objections, if the negotiating parties cannot come to terms.

El Paso Corp. and New Mexico Oil and Gas are among supporters of a proposal to amend the Indian rights-of-way provisions of the Energy Policy Act. Currently, the Navajo Nation and El Paso are at a standstill over renewal of El Paso's lease for it's 900 miles of pipeline. The lease expired in October, leaving El Paso in trespass.

Resources Committee Chairman George Arthur said that if the tribe agrees to accept the company's proposed six-month extension, for which El Paso is offering $400 a rod, it could lock the tribe into that amount for the full 20-year lease.

What's it worth?El Paso and several other interest groups have appealed to the Secretary of Interior to amend the Indian rights-of-way provisions. El Paso has said that if the Navajo Nation does not accept its current offer of just over $3 million for six months, it could result in "undesired political fallout."

The National Congress of American Indians said in March that the energy companies made the argument to Congress that a tribal consent requirement is unfair because tribes are charging too much for rights-of-way and creating an impediment to energy transportation.

"Rights-of-way on Indian lands have been historically undervalued by the Department of Interior, which often sets rates at agricultural levels for high-value energy corridors and has deeply discounted the value of tribal lands as compared to private lands," NCAI said.

Tribal lands make up less than 2 percent of the United States. "If the energy company does not want to pay the tribe, it can go around the reservation. The tribal consent requirement is simply not a serious physical impediment to the energy industry," NCAI said.

"Tribal lands were reserved for the use of Indian tribes for their people and their culture not as cheap industrial corridors. Energy rights-of-way are often very destructive of surrounding land and limit its potential uses.

"Way too often tribes have been forced to sacrifice their lands, their cultural sites, and their safety and health. Tribes should retain their right to consent and never be forced to unfairly bear the costs of industrial corridor development," NCAI said.