[House Report 112-692]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-692

======================================================================



 
                       NATIVE AMERICAN ENERGY ACT

                                _______
                                

October 23, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Hastings of Washington, from the Committee on Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3973]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3973) to facilitate the development of energy on 
Indian lands by reducing Federal regulations that impede tribal 
development of Indian lands, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Native American Energy Act''.

SEC. 2. TABLE OF CONTENTS.

  The table of contents for this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of Contents.
Sec. 3. Appraisals.
Sec. 4. Standardization.
Sec. 5. Environmental reviews of major Federal actions on Indian lands.
Sec. 6. Indian Energy Development Offices.
Sec. 7. BLM Oil and Gas Fees.
Sec. 8. Bonding requirements and nonpayment of attorneys' fees to 
promote indian energy projects.
Sec. 9. Tribal biomass demonstration project.
Sec. 10. Tribal Resource Management Plans.
Sec. 11. Leases of Restricted Lands for the Navajo Nation.
Sec. 12. Nonapplicability of certain rules.

SEC. 3. APPRAISALS.

  (a) Amendment.--Title XXVI of the Energy Policy Act of 1992 (25 
U.S.C. 3501 et seq.) is amended by adding at the end the following:

``SEC. 2607. APPRAISAL REFORMS.

  ``(a) Options to Indian Tribes.--With respect to a transaction 
involving Indian land or the trust assets of an Indian tribe that 
requires the approval of the Secretary, any appraisal relating to fair 
market value required to be conducted under applicable law, regulation, 
or policy may be completed by--
          ``(1) the Secretary;
          ``(2) the affected Indian tribe; or
          ``(3) a certified, third-party appraiser pursuant to a 
        contract with the Indian tribe.
  ``(b) Time Limit on Secretarial Review and Action.--Not later than 30 
days after the date on which the Secretary receives an appraisal 
conducted by or for an Indian tribe pursuant to paragraphs (2) or (3) 
of subsection (a), the Secretary shall--
          ``(1) review the appraisal; and
          ``(2) provide to the Indian tribe a written notice of 
        approval or disapproval of the appraisal.
  ``(c) Failure of Secretary To Approve or Disapprove.--If, after 60 
days, the Secretary has failed to approve or disapprove any appraisal 
received, the appraisal shall be deemed approved.
  ``(d) Option to Indian Tribes To Waive Appraisal.--
          ``(1) An Indian tribe wishing to waive the requirements of 
        subsection (a), may do so after it has satisfied the 
        requirements of subsections (2) and (3) below.
          ``(2) An Indian tribe wishing to forego the necessity of a 
        waiver pursuant to this section must provide to the Secretary a 
        written resolution, statement, or other unambiguous indication 
        of tribal intent, duly approved by the governing body of the 
        Indian tribe.
          ``(3) The unambiguous indication of intent provided by the 
        Indian tribe to the Secretary under paragraph (2) must include 
        an express waiver by the Indian tribe of any claims for damages 
        it might have against the United States as a result of the lack 
        of an appraisal undertaken.
  ``(e) Definition.--For purposes of this subsection, the term 
`appraisal' includes appraisals and other estimates of value.
  ``(f) Regulations.--The Secretary shall develop regulations for 
implementing this section, including standards the Secretary shall use 
for approving or disapproving an appraisal.''.
  (b) Conforming Amendment.--The table of contents of the Energy Policy 
Act of 1992 (42 U.S.C. 13201 note) is amended by adding at the end of 
the items relating to title XXVI the following:

``Sec. 2607. Appraisal reforms.''.

SEC. 4. STANDARDIZATION.

  As soon as practicable after the date of the enactment of this Act, 
the Secretary of the Interior shall implement procedures to ensure that 
each agency within the Department of the Interior that is involved in 
the review, approval, and oversight of oil and gas activities on Indian 
lands shall use a uniform system of reference numbers and tracking 
systems for oil and gas wells.

SEC. 5. ENVIRONMENTAL REVIEWS OF MAJOR FEDERAL ACTIONS ON INDIAN LANDS.

  Section 102 of the National Environmental Policy Act of 1969 (42 
U.S.C. 4332) is amended by inserting ``(a) In General.--'' before the 
first sentence, and by adding at the end the following:
  ``(b) Review of Major Federal Actions on Indian Lands.--
          ``(1) In general.--For any major Federal action on Indian 
        lands of an Indian tribe requiring the preparation of a 
        statement under subsection (a)(2)(C), the statement shall only 
        be available for review and comment by the members of the 
        Indian tribe and by any other individual residing within the 
        affected area.
          ``(2) Regulations.--The Chairman of the Council on 
        Environmental Quality shall develop regulations to implement 
        this section, including descriptions of affected areas for 
        specific major Federal actions, in consultation with Indian 
        tribes.
          ``(3) Definitions.--In this subsection, each of the terms 
        `Indian land' and `Indian tribe' has the meaning given that 
        term in section 2601 of the Energy Policy Act of 1992 (25 
        U.S.C. 3501).
          ``(4) Clarification of authority.--Nothing in the Native 
        American Energy Act, except section 8 of that Act, shall give 
        the Secretary any additional authority over energy projects on 
        Alaska Native Claims Settlement Act lands.''.

SEC. 6. INDIAN ENERGY DEVELOPMENT OFFICES.

  Section 2602(a) of the Energy Policy Act of 1992 (25 U.S.C. 3502(a)) 
is amended--
          (1) by redesignating paragraph (3) as paragraph (4);
          (2) by inserting after paragraph (2) the following:
          ``(3) Indian energy development offices.--
                  ``(A) Establishment.--To assist the Secretary in 
                carrying out the Program, the Secretary shall establish 
                within the Department of the Interior not less than 5 
                offices.
                  ``(B) Naming.--Each office established under 
                subparagraph (A) shall be known as an `Indian Energy 
                Development Office'.
                  ``(C) Location.--The Secretary shall locate each 
                Indian Energy Development Office--
                          ``(i) within a regional or agency office of 
                        the Bureau of Indian Affairs; and
                          ``(ii) to the maximum extent practicable, in 
                        an area in which there exists a high quantity 
                        of tribal energy development opportunities, as 
                        determined by the Secretary in consultation 
                        with Indian tribes.
                  ``(D) Directors.--Each Indian Energy Development 
                Office established under this paragraph shall be headed 
                by a director.
                  ``(E) Duties.--The director of each Indian Energy 
                Development Office shall--
                          ``(i) provide energy-related information and 
                        resources to Indian tribes and tribal members;
                          ``(ii) coordinate meetings and outreach among 
                        Indian tribes, tribal members, energy 
                        companies, and relevant Federal, State, and 
                        tribal agencies;
                          ``(iii) oversee, and ensure the timely 
                        processing of, Indian energy applications, 
                        permits, licenses, and other documents that are 
                        subject to development, review, or processing 
                        by--
                                  ``(I) the Bureau of Indian Affairs;
                                  ``(II) the Bureau of Land Management;
                                  ``(III) the National Park Service;
                                  ``(IV) the United States Fish and 
                                Wildlife Service;
                                  ``(V) the Bureau of Reclamation;
                                  ``(VI) the Minerals Management 
                                Service; or
                                  ``(VII) the Office of Special Trustee 
                                for American Indians of the Department 
                                of the Interior; and
                          ``(iv) consult with Indian tribes that will 
                        be served by an Indian Energy Development 
                        Office to determine what services, information, 
                        facilities, or programs would best expedite the 
                        responsible development of energy resources.
                  ``(F) Staff.--Each Indian Energy Development Office 
                established under this paragraph shall be adequately 
                staffed to meet the demand for energy permitting in the 
                region or agency where the office is established.''.

SEC. 7. BLM OIL AND GAS FEES.

  The Secretary of the Interior, acting through the Bureau of Land 
Management, shall not collect any fee for any of the following:
          (1) For an application for a permit to drill on Indian land.
          (2) To conduct any oil or gas inspection activity on Indian 
        land.
          (3) On any oil or gas lease for nonproducing acreage on 
        Indian land.

SEC. 8. BONDING REQUIREMENTS AND NONPAYMENT OF ATTORNEYS' FEES TO 
                    PROMOTE INDIAN ENERGY PROJECTS.

  (a) In General.--A plaintiff who obtains a preliminary injunction or 
administrative stay in an energy related action, but does not 
ultimately prevail on the merits of the energy related action, shall be 
liable for damages sustained by a defendant who--
          (1) opposed the preliminary injunction or administrative 
        stay; and
          (2) was harmed by the preliminary injunction or 
        administrative stay.
  (b) Bond.--Unless otherwise specifically exempted by Federal law, a 
court may not issue a preliminary injunction and an agency may not 
grant an administrative stay in an energy related action until the 
plaintiff posts with the court or the agency a surety bond or cash 
equivalent--
          (1) in an amount the court or agency decides is 30 percent of 
        that amount that the court or agency considers is sufficient to 
        compensate each defendant opposing the preliminary injunction 
        or administrative stay for damages, including but not limited 
        to preliminary development costs, additional development costs, 
        and reasonable attorney fees, that each defendant may sustain 
        as a result of the preliminary injunction or administrative 
        stay;
          (2) written by a surety licensed to do business in the state 
        in which the Indian Land or other land where the activities are 
        undertaken is situated; and
          (3) payable to each defendant opposing the preliminary 
        injunction or administrative stay, in the event that the 
        plaintiff does not prevail on the merits of the energy related 
        action, Provided, that, if there is more than one plaintiff, 
        the court or agency shall establish the amount of the bond 
        required by this Subsection for each plaintiff in a fair and 
        equitable manner.
  (c) Limitation on Certain Payments.--Notwithstanding section 1304 of 
title 31, United States Code, no award may be made under section 504 of 
title 5, United States Code, or under section 2412 of title 28, United 
States Code, and no amounts may be obligated or expended from the 
Claims and Judgment Fund of the United States Treasury to pay any fees 
or other expenses under such sections to any plaintiff related to an 
energy related action.
  (d) Definitions.--For the purposes of this section, the following 
definitions apply:
          (1) Administrative stay.--The term ``Administrative Stay'' 
        means a stay or other temporary remedy issued by a Federal 
        agency, including the Department of the Interior, the 
        Department of Agriculture, the Department of Energy, the 
        Department of Commerce, and the Environmental Protection 
        Agency.
          (2) Indian land.--The term ``Indian Land'' has the same 
        meaning given such term in section 203(c)(3) of the Energy 
        Policy Act of 2005 (Public Law 109-58; 25 U.S.C. 3501), 
        including lands owned by Native Corporations under the Alaska 
        Native Claims Settlement Act (Public Law 92-203; 43 U.S.C. 
        1601).
          (3) Energy related action.--The term ``energy related 
        action'' means a cause of action that--
                  (A) is filed on or after the effective date of this 
                Act; and
                  (B) seeks judicial review of a final agency action 
                (as defined in section 702 of title 5, United States 
                Code), to issue a permit, license, or other form of 
                agency permission allowing:
                          (i) any person or entity to conduct 
                        activities on Indian Land, which activities 
                        involve the exploration, development, 
                        production or transportation of oil, gas, coal, 
                        shale gas, oil shale, geothermal resources, 
                        wind or solar resources, underground coal 
                        gasification, biomass, or the generation of 
                        electricity, or
                          (ii) any Indian Tribe, or any organization of 
                        two or more entities, at least one of which is 
                        an Indian tribe, to conduct activities 
                        involving the exploration, development, 
                        production or transportation of oil, gas, coal, 
                        shale gas, oil shale, geothermal resources, 
                        wind or solar resources, underground coal 
                        gasification, biomass, or the generation of 
                        electricity, regardless of where such 
                        activities are undertaken.
          (4) Ultimately prevail on the merits.--The phrase 
        ``Ultimately prevail on the merits'' means, in a final 
        enforceable judgment on the merits, the court rules in the 
        plaintiff's favor on at least one cause of action which is an 
        underlying rationale for the preliminary injunction, and does 
        not include circumstances where the final agency action is 
        modified or amended by the issuing agency unless such 
        modification or amendment is required pursuant to a final 
        enforceable judgment of the court or a court-ordered consent 
        decree.

SEC. 9. TRIBAL BIOMASS DEMONSTRATION PROJECT.

  The Tribal Forest Protection Act of 2004 (25 U.S.C. 3115a) is amended 
by inserting after section 2 the following:

``SEC. 3. TRIBAL BIOMASS DEMONSTRATION PROJECT.

  ``(a) In General.--For each of fiscal years 2013 through 2017, the 
Secretary shall enter into stewardship contracts or other agreements, 
other than agreements that are exclusively direct service contracts, 
with Indian tribes to carry out demonstration projects to promote 
biomass energy production (including biofuel, heat, and electricity 
generation) on Indian forest land and in nearby communities by 
providing reliable supplies of woody biomass from Federal land.
  ``(b) Definitions.--The definitions in section 2 shall apply to this 
section.
  ``(c) Demonstration Projects.--In each fiscal year for which projects 
are authorized, the Secretary shall enter into contracts or other 
agreements described in subsection (a) to carry out at least 4 new 
demonstration projects that meet the eligibility criteria described in 
subsection (d).
  ``(d) Eligibility Criteria.--To be eligible to enter into a contract 
or other agreement under this subsection, an Indian tribe shall submit 
to the Secretary an application--
          ``(1) containing such information as the Secretary may 
        require; and
          ``(2) that includes a description of--
                  ``(A) the Indian forest land or rangeland under the 
                jurisdiction of the Indian tribe; and
                  ``(B) the demonstration project proposed to be 
                carried out by the Indian tribe.
  ``(e) Selection.--In evaluating the applications submitted under 
subsection (c), the Secretary--
          ``(1) shall take into consideration the factors set forth in 
        paragraphs (1) and (2) of section 2(e) of Public Law 108-278; 
        and whether a proposed demonstration project would--
                  ``(A) increase the availability or reliability of 
                local or regional energy;
                  ``(B) enhance the economic development of the Indian 
                tribe;
                  ``(C) improve the connection of electric power 
                transmission facilities serving the Indian tribe with 
                other electric transmission facilities;
                  ``(D) improve the forest health or watersheds of 
                Federal land or Indian forest land or rangeland; or
                  ``(E) otherwise promote the use of woody biomass; and
          ``(2) shall exclude from consideration any merchantable logs 
        that have been identified by the Secretary for commercial sale.
  ``(f) Implementation.--The Secretary shall--
          ``(1) ensure that the criteria described in subsection (c) 
        are publicly available by not later than 120 days after the 
        date of enactment of this section; and
          ``(2) to the maximum extent practicable, consult with Indian 
        tribes and appropriate intertribal organizations likely to be 
        affected in developing the application and otherwise carrying 
        out this section.
  ``(g) Report.--Not later than September 20, 2015, the Secretary shall 
submit to Congress a report that describes, with respect to the 
reporting period--
          ``(1) each individual tribal application received under this 
        section; and
          ``(2) each contract and agreement entered into pursuant to 
        this section.
  ``(h) Incorporation of Management Plans.--In carrying out a contract 
or agreement under this section, on receipt of a request from an Indian 
tribe, the Secretary shall incorporate into the contract or agreement, 
to the extent practicable, management plans (including forest 
management and integrated resource management plans) in effect on the 
Indian forest land or rangeland of the respective Indian tribe.
  ``(i) Term.--A stewardship contract or other agreement entered into 
under this section--
          ``(1) shall be for a term of not more than 20 years; and
          ``(2) may be renewed in accordance with this section for not 
        more than an additional 10 years.''.

SEC. 10. TRIBAL RESOURCE MANAGEMENT PLANS.

  Unless otherwise explicitly exempted by Federal law enacted after the 
date of the enactment of this Act, any activity conducted or resources 
harvested or produced pursuant to a tribal resource management plan or 
an integrated resource management plan approved by the Secretary of the 
Interior under the National Indian Forest Resources Management Act (25 
U.S.C. 3101 et seq.) or the American Indian Agricultural Resource 
Management Act (25 U.S.C. 3701 et seq.), shall be considered a 
sustainable management practice for purposes of any Federal standard, 
benefit, or requirement that requires a demonstration of such 
sustainability.

SEC. 11. LEASES OF RESTRICTED LANDS FOR THE NAVAJO NATION.

  Subsection (e)(1) of the first section of the Act of August 9, 1955, 
(25 U.S.C. 415(e)(1); commonly referred to as the ``Long-Term Leasing 
Act'') is amended--
          (1) by striking ``, except a lease for'' and inserting ``, 
        including leases for'';
          (2) in subparagraph (A), by striking ``25'' the first place 
        it appears and all that follows and inserting ``99 years;'';
          (3) in subparagraph (B), by striking the period and inserting 
        ``; and''; and
          (4) by adding at the end the following:
                  ``(C) in the case of a lease for the exploration, 
                development, or extraction of mineral resources, 
                including geothermal resources, 25 years, except that 
                any such lease may include an option to renew for one 
                additional term not to exceed 25 years.''.

SEC. 12. NONAPPLICABILITY OF CERTAIN RULES.

   No rule promulgated by the Department of the Interior regarding 
hydraulic fracturing used in the development or production of oil or 
gas resources shall have any effect on any land held in trust or 
restricted status for the benefit of Indians except with the express 
consent of the beneficiary on whose behalf such land is held in trust 
or restricted status.

                          Purpose of the Bill

    The purpose of H.R. 3973, as ordered reported, is to 
facilitate the development of energy on Indian lands by 
reducing Federal regulations that impede tribal development of 
Indian lands.

                  Background and Need for Legislation

    The Department of the Interior holds 56 million acres of 
land in trust or restricted status for the benefit of American 
Indian tribes and individual Indians. A number of reservations 
contain large accumulations of known and prospective mineral 
resources. In Fiscal Year 2011, excluding bonus bids and rents, 
$433.3 million in royalties from oil and gas leasing of Indian 
lands were paid to Indian tribes and allottees from the sale of 
19.6 million barrels of oil, 143.4 million gallons of natural 
gas liquids, and 255.4 billion cubic feet of natural gas. Also, 
royalties of $74.45 million were paid to tribes from the sale 
of 21.5 million tons of coal produced from their lands.
    Additional, detailed public information regarding the 
subsurface mineral resources in Indian lands is sparse. 
According to Department of Energy data, tribal lands 
conservatively hold an estimated 890 million barrels of oil and 
5.4 trillion cubic feet of natural gas. These figures appear to 
be based on a 2004 report and thus may not reflect new 
discoveries and the recent breakthroughs in the use of 
hydraulic fracturing to produce oil and gas from large 
hydrocarbon-bearing shale formations.
    A number of Indian reservations are located in areas with 
highly favorable conditions for the production of electricity 
from wind, solar, geothermal resources. Other reservations 
(particularly in the Pacific Northwest and in the Southwest) 
have large timber bases with ample supplies of biomass that 
could be converted to fuels or electricity.
    Development of Indian energy presents obstacles not 
encountered on private and state lands. In general, federal law 
requires the approval of the Department before a lease a tribe 
enters into with an energy developer is valid. For example, 
under the Indian Land Mineral Leasing Act of 1982 (25 U.S.C. 
2101 et seq.), a tribe or individual Indian may only lease his 
lands for mineral development ``subject to the approval of the 
Secretary.'' Pursuant to this authority, the Department 
developed sprawling rules for the approval of leases of Indian 
lands. The rules often trigger National Environmental Policy 
Act (NEPA) reviews, lengthy appraisals, expensive applications 
for permits to drill (in the case of oil and gas), and numerous 
other layers of dilatory bureaucratic review often involving 
other agencies. Each layer of review gives a federal agency 
bureaucrat, a political appointee, or a special interest an 
opportunity to meddle, interfere, delay, appeal, or sue.
    The current regulatory scheme obstructs historically 
impoverished tribes from fully realizing the huge economic 
potential of developing their natural resources. Because tribes 
with large energy resources tend to be located in rural areas, 
development of these resources offers one of the few non-
governmental means available to create jobs, a revenue stream 
to meet member demands for tribal services, investment in the 
local community, and new energy supply to meet U.S. consumer 
demand.
    In the State of Alaska, a number of Alaska Native 
Corporations (ANCs) selected settlement lands containing large 
quantities of oil, gas, and coal resources. Congress required 
the ANCs to select their lands from available public domain 
land in Alaska. The result is that many ANC lands consist of 
non-contiguous parcels within larger federal land units, such 
as the Arctic National Wildlife Refuge (ANWR), where Native 
lands in the northern coastal plain hold some of the largest 
prospective oil resources in North America. By law, the Natives 
may not produce oil from these private lands within ANWR until 
Congress enacts a law opening the federal lands of ANWR. Other 
ANC parcels are situated within other federal areas. This means 
federal permits are frequently required to construct pipelines 
and other necessary infrastructure for the Alaska Natives to 
derive beneficial use of their settlement lands. Such federal 
permitting is anything but certain or easy.
    H.R. 3973, the Native American Energy Act, contains several 
provisions which address concerns that various Native American 
leaders brought to the attention of the Committee. The 
legislation helps tribes and Alaska Natives expedite and 
streamline the leasing and development of energy and other 
natural resources in cases where federal laws or policies are a 
hindrance. A section-by-section analysis of H.R. 3973 is 
provided below.
    During Full Committee consideration of the bill, the 
committee defeated an amendment in the nature of a substitute 
(ANS) offered by Congressman Ben Lujan (D-NM). The Chairman of 
the Subcommittee on Indian and Alaska Native Affairs, 
Congressman Don Young (R-AK), explained that the basis for 
majority opposition to the ANS was not with the substance of 
the language, it contained non-objectionable provisions 
championed by the Ranking Republican of the Senate Indian 
Affairs Committee, Senator Mike Barrasso (R-WY), but with the 
form in which the amendment was offered. The amendment would 
delete all the provisions in H.R. 3973 as introduced, 
provisions that were specifically requested by Indian tribes 
and Alaska Native leaders and are viewed as necessary to remove 
obstacles blocking them from developing tribal energy 
resources.
    During Full Committee consideration of the bill, the 
Committee adopted an amendment offered by Congressman Young to 
prohibit any rule promulgated by the Department of the Interior 
regulating hydraulic fracturing from applying to lands held in 
trust for Indians without the consent of the Indian owners. 
Hydraulic fracturing is a commonly used well stimulation 
technique in the oil and gas industry. Recent advances in the 
technique have made unconventional or ``tight'' oil and gas 
deposits--including enormous shale formations--commercially 
viable. While operators on private and state lands reap the 
rewards of such development, it is incumbent on Congress to 
ensure tribes, through tribal regulation of their lands, have 
every opportunity to reap such benefits as well. Unfortunately, 
by its actions the Department of the Interior must disagree.
    The Bureau of Land Management (BLM) proposed a rule to 
regulate hydraulic fracturing on ``public lands,'' a term which 
the Department of the Interior wrongly deems to include lands 
the United States holds in trust for the exclusive use and 
benefit of Indians. While federal law does impose certain 
duties on the Department to manage Indian lands, the hydraulic 
fracturing (HF) rule will be imposed without the consent of the 
tribes even though the rule may adversely affect their 
interests. This is opposed to Congress's long-running policy of 
promoting self-determination for Indians.
    Worse, tribes reported to the Committee that the Obama 
Administration failed to adhere to Executive Order 13175 of 
November 6, 2000. As explained by President Obama in a November 
5, 2009, memorandum to all federal agencies, ``[E]xecutive 
departments and agencies (agencies) are charged with engaging 
in regular and meaningful consultation and collaboration with 
tribal officials in the development of Federal policies that 
have tribal implications, and are responsible for strengthening 
the government-to-government relationship between the United 
States and Indian tribes.'' While Executive Order 13175 does 
not create any legally enforceable rights or claims, President 
Obama has held three highly publicized White House Tribal 
Nation Conferences where promises to carry out the government's 
consultation obligations were repeatedly stressed.
    Moreover, on December 1, 2011, the Department issued a 
press release stating: ``Secretary of the Interior Ken Salazar 
and Assistant Secretary-Indian Affairs Larry Echo Hawk today 
announced a Tribal Consultation Policy for the Department of 
the Interior, launching a new era of enhanced communication 
with American Indian and Alaska Native tribes.''
    While this announcement was welcome news to tribes, the 
Secretary forgot to tell the BLM. In an April 19, 2012, hearing 
the Subcommittee held on the proposed HF rule, tribes that want 
to allow HF denounced the agency for failing to consult with 
them while the new policy was under development. In the 
hearing, it was disclosed that a forum hosted by Secretary 
Salazar on November 30, 2010, to launch public discussion of an 
HF policy, did not include any tribes--but it did include then 
Assistant to the President for Energy and Climate Change, Carol 
Browner, the Natural Resources Defense Council and Trout 
Unlimited.
    The proposed HF rule could drive oil and gas operators from 
Indian lands and deprive historically impoverished tribes of a 
needed source of private investment, tribal royalty revenues, 
and high-wage jobs. Tribes opposed to the proposed rule lodged 
three basic objections: (1) the Department wrongly considers 
land it holds in trust for Indians to be ``public lands'' for 
the purpose of the draft rule; (2) the BLM did not adequately 
consult with tribes in violation of Administration policy and a 
Secretarial Order; and (3) the rule will result in new delays 
and paperwork burdens and will thus drive industry away from 
leasing Indian lands.
    On reservations where Indian trust lands and non-Indian fee 
lands form a ``checker board'' pattern, an oil and gas operator 
would have no incentive to produce oil on an Indian lease if he 
could simply move his operation a few feet away to the non-
Indian fee land, where more reasonable State HF rules apply. 
Thus, the BLM rule will deprive tribes of jobs for members, dry 
up royalties for tribal government coffers, and weaken already 
impoverished reservation economies, while industry will find 
other lands where more reasonable HF rules apply.
    In the hearing, a number of tribal leaders and an executive 
with a tribal oil and gas subsidiary testified on the HF rule. 
All the tribal leaders were dissatisfied with the level of 
consultation conducted by the Department of the Interior, and 
most were strongly opposed to the rule.
    T.J. Show, Chairman of the Blackfeet Tribal Business 
Council, began his testimony by noting that ``Blackfeet Tribe, 
like numerous other large land-based Tribes, suffers from an 
unemployment rate that reaches 70 to 80 percent'' and that the 
Tribe has ``determined that development of the large pools of 
oil and natural gas . . . is the most viable option to improve 
the Reservation economy, to provide jobs to Tribal members, to 
provide necessary services on the Reservation, and to bring 
some measure of improvement to the standard of living of 
Blackfeet tribal members.'' Mr. Show also said that the rule 
that BLM developed, ``will create additional burdens to an 
already burdensome process that will likely delay and possibly 
prevent beneficial development of Blackfeet oil resources.'' 
Most importantly, Show said that, ``BLM developed a rule that 
seriously impacts Indian Country energy development without 
regard to the consultation process.''
    Irene Cuch, Chairwoman of the Ute Tribal Business 
Committee, testified that in writing the HF rule BLM's 
``actions do not uphold its obligations under the federal trust 
responsibility and do not fulfill the Department's long-
standing and ongoing commitment to consult with Indian 
tribes.''
    Tex G. Hall, Chairman of the Mandan, Hidatsa and Arikara 
Nation of the Fort Berthold Reservation, which is located 
squarely on top of the Bakken formation in North Dakota, one of 
the largest onshore oil fields on the continent, reminded the 
Subcommittee that, ``Since energy development began on the 
Reservation we have struggled with the federal bureaucracy for 
every single oil and gas permit,'' and that ``BLM's proposed 
regulations may add so much delay, uncertainty and cost to the 
oil and gas permitting process that they may be forced to pull 
their drilling rigs off the Reservation.'' Mr. Hall credits 
tribal energy development for creating, ``in excess of 10,000 
jobs.'' Finally, like many of the witnesses, Hall noted the 
lack of BLM consultation and that, ``BLM's actions to date have 
given me and other tribes the impression that tribal input is 
not desired or only minimally needed even though there is 
strong evidence that the proposed regulations will cost the MHA 
Nation and the surrounding community a sizable number of jobs 
and money.''
    James M. ``Mike'' Olguin, Vice Chairman, Southern Ute 
Indian Tribal Council, explained that, ``Added regulatory 
burdens to the development of tribal minerals discourage 
development on Indian lands and provide a direct incentive to 
operators to lease and drill on offsetting non-Indian lands 
because of the associated cost savings.'' Olguin was surprised 
that the ``concept of meaningful consultation has been 
shortchanged by the BLM,'' and that, ``notwithstanding our 
requests and suggestions, BLM proceeded to develop draft 
proposed regulations in isolation.''
    Wilson Groen, President and Chief Executive Officer of the 
Navajo Nation Oil and Gas Company, told the Subcommittee that, 
``A Federal rule relating to hydraulic fracturing will result 
in additional and extraordinary delays that could take the 
Interior Board of Land Appeals a year or more to decide.''
    Two other tribal witnesses did not necessarily oppose the 
proposed HF rule. However, one of the tribal leaders with the 
Shoshone Business Council of the Wind River Reservation 
criticized the BLM for a lack of meaningful consultation on it, 
and the other tribal leader with the Turtle Mountain Band of 
Chippewa noted that his tribe banned HF.
    It should be clear that it is the view of the Committee 
that a tribe is within its rights to ban HF on its own lands. 
The question is whether an HF rule opposed by a tribe should be 
imposed on any tribe's lands without its consent. The Young 
amendment to ban the HF rule from applying to Indian lands 
without the consent of the Indian owner upholds the long-
standing federal policy of promoting tribal self-determination.
    There may be a concern as to who regulates HF on tribal 
lands. In practice, an oil and gas operator generally follows 
state rules regarding HF while on tribal lands. While such 
rules cannot be imposed on the tribe itself and while tribes do 
not support the imposition of state law on their lands, the 
current framework nonetheless ensures appropriate regulation of 
industry practices until a tribe applies its own rules 
regarding HF on their lands.

                            Committee Action

    H.R. 3973 was introduced on February 7, 2012, by 
Congressman Don Young (R-AK). The bill was referred to the 
Committee on Natural Resources, and within the Committee to the 
Subcommittee on Energy and Mineral Resources and the 
Subcommittee on Indian and Alaska Native Affairs. On February 
15, 2012, the Subcommittee on Energy and Mineral Resources held 
a hearing on the bill. On May 16, 2012, the Full Natural 
Resources Committee met to consider the bill. The Subcommittees 
were discharged by unanimous consent. Congressman Young offered 
an amendment to the bill; the amendment was adopted by voice 
vote. Congressman Ben Lujan (D-NM) offered an amendment in the 
nature of a substitute to the bill; the amendment was not 
adopted by a bipartisan rollcall vote of 13 to 23, as follows:



Congressman Young offered a second amendment to the bill; the 
amendment was adopted by voice vote. The bill, as amended, was 
then adopted and ordered favorably reported to the House of 
Representatives by voice vote.

                      Section-by-Section Analysis


Section 1. Short title

    This Act may be cited as the Native American Energy Act.

Section 2. Table of Contents

    This section contains the table of contents for the bill.

Section 3. Appraisals

    Section 3 allows an appraisal of Indian land, at the option 
of a tribe, to be conducted by the Secretary of the Interior, 
the tribe, or a certified third-party appraiser. Under this 
section, an appraisal conducted by an Indian tribe or certified 
third-party appraiser is deemed approved if the Secretary fails 
to approve or disapprove it within 60 days. This section also 
permits a tribe to waive an appraisal by the Secretary of the 
Interior.

Section 4. Standardization

    This section directs the Secretary of the Interior to 
standardize the way the seven bureaus of the Department of the 
Interior track oil and gas activities on Indian lands.

Section 5. Environmental reviews of major federal actions on Indian 
        lands

    Section 5 provides that for any environmental impact 
statement required under the National Environmental Policy Act 
of 1969 for a major federal action on a tribe's lands, such 
statement shall be available for public review and comment only 
by members of the Indian tribe and by any other individual 
residing within the affected area.

Section 6. Indian energy development offices

    This section directs the Secretary of the Interior to 
establish no less than five Indian energy development offices 
across Indian Country. These offices would have a director and 
staff that would coordinate transactions among Indian tribes, 
tribal members, energy companies, and relevant federal, State, 
and tribal agencies.

Section 7. BLM oil and gas fees

    Section 7 prohibits BLM from collecting any fees for an 
application for a permit to drill on Indian land, to conduct 
any oil or gas inspection activity on Indian land and on any 
oil or gas lease for nonproducing acreage on Indian land. 
Currently, the Department of the Interior deems Indian land it 
holds ``in trust'' to be federal land public land for the 
purpose of assessing various oil and gas fees. This is 
inconsistent with the principle of federal ``trust'' land 
because the beneficial owner of such land is a tribe or Indian, 
not the public. Such fees can discourage private investment on 
Indian lands.

Section 8. Bonding requirements and nonpayment of attorneys' fees to 
        promote Indian energy projects

    Section 8 is intended to reduce the incidence of frivolous 
legal actions filed by those seeking to block energy 
development on Indian or Alaska Native Corporation (ANC) land, 
or energy development by an Indian tribe or ANC on any land. 
This provision does not affect anyone's ability to file a legal 
action (such as a lawsuit in federal court or administrative 
appeal in an agency). Rather, it makes a plaintiff liable for 
damages sustained by a defendant when the plaintiff obtains a 
preliminary injunction or administrative stay but does not 
ultimately prevail on the merits of his legal action.
    The measure also prohibits a federal court or agency from 
issuing a preliminary injunction or administrative stay unless 
the plaintiff posts a bond representing 30% of the amount 
sufficient to compensate the defendant for damages.
    Finally, Section 8 prohibits taxpayer dollars from being 
used to pay court costs and attorneys fees of those who file 
legal actions against energy development benefiting Native 
Americans.

Section 9. Tribal biomass demonstration project

    This section amends the Tribal Forest Protection Act of 
2004 to create a demonstration project for Indian tribes to 
promote biomass energy production on Indian forest land and in 
nearby communities by providing reliable supplies of woody 
biomass from federal land.

Section 10. Tribal resource management plans

    Section 10 treats a tribe's forest practices to be 
``sustainable'' for all federal purposes if the tribe's land is 
managed under a tribal resource management plan or an 
integrated resource management plan. This addresses a problem 
in which third-party groups charge an entity substantial, 
recurring fees to claim a certification that the entity's 
forest plan is ``sustainable.''

Section 11. Leases of restricted lands for the Navajo Nation

    This section enhances Navajo Nation leasing authority.
    The Indian Long-Term Leasing Act (25 U.S.C. 415) requires 
separate review and approval for each lease of a tribe's land, 
triggering a lengthy, detailed review by the federal 
bureaucracy, and the potential preparation of an environmental 
review under the National Environmental Policy Act. Since 2000, 
Congress has amended 25 U.S.C. 415 to permit several tribes to 
conduct non-mineral leasing without Secretarial review when 
certain conditions are met.
    One of these amendments added subsection (e) to the Indian 
Long-Term Leasing Act (25 U.S.C. 415(e)). This authorizes the 
Navajo Nation to execute each of its non-mineral leases without 
review of the Secretary if the leasing is conducted under 
tribal regulations that have been approved by the Secretary. 
Business or agricultural leases may be for 25 years with an 
option to renew for up to two additional 25-year terms. All 
other non-mineral leases may be for 75 years.
    Section 11 of H.R. 3973 amends 25 U.S.C. 415(e) to include 
mineral and geothermal leases in the types of leases the Navajo 
Nation may execute under Navajo regulations approved by the 
Secretary. The terms of such leases may be for 25 years with an 
option to renew for one term of up to 25 years.
    The section also amends 25 U.S.C. 415(e) to permit the 
Navajo to execute 99-year leases for business or agricultural 
purposes.

Section 12. Nonapplicability of certain rules

    This section provides that no rule promulgated by the 
Department of the Interior regarding hydraulic fracturing used 
in the development or production of oil or gas resources shall 
have any effect on any Indian trust land except with the 
express consent of the Indian owner.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(2)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
403 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for this bill from the 
Director of the Congressional Budget Office:

H.R. 3973--Native American Energy Act

    Summary: H.R. 3973 would make several changes related to 
environmental laws, energy programs, and the management of 
mineral resources on Native American reservations. CBO 
estimates that implementing the bill would cost $58 million 
over the 2013-2017 period, assuming appropriation of the 
necessary amounts.
    Pay-as-you-go procedures apply because enacting the 
legislation would affect direct spending. However, CBO 
estimates that the net effects would be insignificant over the 
2013-2022 period. Enacting H.R. 3973 would not affect revenues.
    H.R. 3973 would impose an intergovernmental and private-
sector mandate, as defined in the Unfunded Mandates Reform Act 
(UMRA), by requiring plaintiffs, including public and private 
entities, to post a bond when seeking a preliminary injunction 
to stop energy-related activities on Native American energy 
projects. CBO estimates that the costs for public and private 
entities would probably fall below the annual thresholds 
established in UMRA ($73 million and $146 million, 
respectively, in 2012, adjusted annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 3973 is shown in the following table. 
The costs of this legislation fall within budget function 450 
(community and regional development).

----------------------------------------------------------------------------------------------------------------
                                                               By fiscal year, in millions of dollars--
                                                    ------------------------------------------------------------
                                                       2013      2014      2015      2016      2017    2013-2017
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level......................        11        11        12        12        12         58
Estimated Outlays..................................         9        13        12        12        12         58
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
legislation will be enacted near the end of 2012 and that the 
necessary amounts will be appropriated for each fiscal year. 
Estimated outlays are based on historical spending patterns for 
similar programs.
    H.R. 3973 would direct the Department of the Interior (DOI) 
to establish at least five Indian Energy Development Offices to 
provide energy-related resources and information to tribes and 
to oversee the processing of applications and permits for 
energy projects on tribal lands. Based on information provided 
by DOI, CBO estimates that each office would cost about $2 
million annually to operate when fully staffed. CBO estimates 
that this provision would cost $43 million over the 2013-2017 
period.
    The bill would prohibit the Bureau of Land Management (BLM) 
from collecting fees for: applications for a permit to drill 
(APD) for oil or gas on tribal lands, oil or gas inspections on 
tribal lands, or nonproducing oil or gas leases on tribal 
lands. Under current law, BLM charges $6,500 to process each 
APD. In 2011, BLM collected about $3 million in APD fees for 
projects on Indian lands. BLM does not currently collect fees 
for oil or gas inspections or for nonproducing leases on tribal 
lands.
    Those fees are authorized to be collected in annual 
appropriation acts, and therefore, the fee amounts are an 
offset to discretionary spending. CBO estimates that this 
provision of H.R. 3973 would reduce collections by $15 million 
over the 2013-2017 period. That reduction in future collections 
for drilling permits would have the effect of increasing future 
net discretionary spending, assuming that future appropriation 
acts are consistent with the provisions of H.R. 3973.
    CBO estimates that implementing other provisions of H.R. 
3973 would have an insignificant impact on federal spending. 
Those provisions would:
           Require DOI to act on any appraisal of 
        energy projects required under current law within 30 
        days and allow tribes to waive the requirement for 
        appraisals under specified circumstances;
           Require DOI to use a uniform reference 
        system for tracking oil and gas wells;
           Restrict the review of and the comments on 
        environmental impact statements of projects on tribal 
        lands to members of the tribe and residents of the 
        area;
           Make plaintiffs who obtain injunctions 
        against energy projects on tribal lands but do not 
        prevail on the merits of the case liable to the 
        defendant for damages. Under the bill, plaintiffs would 
        be required to post a bond with the court for 30 
        percent of the amount required to compensate defendants 
        before the court could issue an injunction;
           Require DOI to contract for four biomass-
        demonstration projects annually through 2017 using 
        timber from federal forests that is not marketable;
           Designate any practice done in accordance to 
        a tribe's resource management plan as a sustainable 
        practice with respect to federal benefits and 
        standards; and
           Authorize the Navajo Nation to enter into 
        commercial and agricultural leases for up to 99 years. 
        Under the bill, the Navajo Nation also would be 
        authorized to enter into mineral resource leases 
        without DOT approval for 25 years. Any income resulting 
        from those leases would be paid directly to the tribal 
        owners or to the appropriate tribal government and 
        would have no significant impact on the federal budget.
    Pay-As-You-Go Considerations: Enacting H.R. 3973 would 
affect direct spending; therefore, pay-as-you-go procedures 
apply. The legislation would prohibit payments of attorneys' 
fees under the Equal Access to Justice Act for lawsuits 
regarding energy projects on tribal lands. A portion of those 
payments comes from the Treasury Department's Judgment Fund and 
is recorded in the budget as direct spending. Based on 
information provided by the Government Accountability Office, 
CBO estimates that any reduction in direct spending as a result 
of the bill would be insignificant. Enacting H.R. 3973 would 
not affect revenues.
    Intergovernmental and private-sector impact: H.R. 3973 
would impose an intergovernmental and private-sector mandate by 
requiring plaintiffs, including public and private entities, to 
post a bond when seeking a preliminary injunction to stop 
energy-related activities on Native American energy projects. 
Preliminary injunctions are issued rarely and only in cases 
where compensation awarded by the court could not equal the 
potential personal damage or damage to property. The amount of 
the bond would be determined by the court and would be equal to 
30 percent of the potential losses incurred by the defendant as 
a result of the injunction. The cost of the mandate would be 
the purchase price of required bonds, typically 10 percent of 
the bond amount. Based on the number of injunctions that would 
require such bonds and the aggregate value of the bonds that 
would have to be purchased to reach the annual thresholds, CBO 
estimates that the costs for public and private entities would 
probably fall below the annual thresholds established in UMRA 
($73 million and $146 million, respectively, in 2012, adjusted 
annually for inflation).
    Estimate prepared by: Federal Costs: Martin von Gnechten; 
Impact on State, Local, and Tribal Governments: Melissa 
Merrell; Impact on the Private Sector: Mann Randall.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.
    2. Section 308(a) of Congressional Budget Act. As required 
by clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives and section 308(a) of the Congressional Budget 
Act of 1974, this bill does not contain any new budget 
authority, spending authority, credit authority, or an increase 
or decrease in revenues or tax expenditures. CBO estimates that 
implementing the bill would cost $58 million over the 2013-2017 
period, assuming appropriation of the necessary amounts.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill, as ordered reported, is to facilitate 
the development of energy on Indian lands by reducing Federal 
regulations that impede tribal development of Indian lands.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                       ENERGY POLICY ACT OF 1992


SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) Short Title.--This Act may be cited as the ``Energy 
Policy Act of 1992''.
  (b) Table of Contents.--

                       TITLE I--ENERGY EFFICIENCY

                          Subtitle A--Buildings

Sec. 101. Building energy efficiency standards.
     * * * * * * *

                   TITLE XXVI--INDIAN ENERGY RESOURCES

     * * * * * * *
Sec. 2607. Appraisal reforms.

           *       *       *       *       *       *       *


TITLE XXVI--INDIAN ENERGY

           *       *       *       *       *       *       *


SEC. 2602. INDIAN TRIBAL ENERGY RESOURCE DEVELOPMENT.

  (a) Department of the Interior Program.--
          (1) * * *

           *       *       *       *       *       *       *

          (3) Indian energy development offices.--
                  (A) Establishment.--To assist the Secretary 
                in carrying out the Program, the Secretary 
                shall establish within the Department of the 
                Interior not less than 5 offices.
                  (B) Naming.--Each office established under 
                subparagraph (A) shall be known as an ``Indian 
                Energy Development Office''.
                  (C) Location.--The Secretary shall locate 
                each Indian Energy Development Office--
                          (i) within a regional or agency 
                        office of the Bureau of Indian Affairs; 
                        and
                          (ii) to the maximum extent 
                        practicable, in an area in which there 
                        exists a high quantity of tribal energy 
                        development opportunities, as 
                        determined by the Secretary in 
                        consultation with Indian tribes.
                  (D) Directors.--Each Indian Energy 
                Development Office established under this 
                paragraph shall be headed by a director.
                  (E) Duties.--The director of each Indian 
                Energy Development Office shall--
                          (i) provide energy-related 
                        information and resources to Indian 
                        tribes and tribal members;
                          (ii) coordinate meetings and outreach 
                        among Indian tribes, tribal members, 
                        energy companies, and relevant Federal, 
                        State, and tribal agencies;
                          (iii) oversee, and ensure the timely 
                        processing of, Indian energy 
                        applications, permits, licenses, and 
                        other documents that are subject to 
                        development, review, or processing by--
                                  (I) the Bureau of Indian 
                                Affairs;
                                  (II) the Bureau of Land 
                                Management;
                                  (III) the National Park 
                                Service;
                                  (IV) the United States Fish 
                                and Wildlife Service;
                                  (V) the Bureau of 
                                Reclamation;
                                  (VI) the Minerals Management 
                                Service; or
                                  (VII) the Office of Special 
                                Trustee for American Indians of 
                                the Department of the Interior; 
                                and
                          (iv) consult with Indian tribes that 
                        will be served by an Indian Energy 
                        Development Office to determine what 
                        services, information, facilities, or 
                        programs would best expedite the 
                        responsible development of energy 
                        resources.
                  (F) Staff.--Each Indian Energy Development 
                Office established under this paragraph shall 
                be adequately staffed to meet the demand for 
                energy permitting in the region or agency where 
                the office is established.
          [(3)] (4) There are authorized to be appropriated to 
        carry out this subsection such sums as are necessary 
        for each of fiscal years 2006 through 2016.

           *       *       *       *       *       *       *


SEC. 2607. APPRAISAL REFORMS.

  (a) Options to Indian Tribes.--With respect to a transaction 
involving Indian land or the trust assets of an Indian tribe 
that requires the approval of the Secretary, any appraisal 
relating to fair market value required to be conducted under 
applicable law, regulation, or policy may be completed by--
          (1) the Secretary;
          (2) the affected Indian tribe; or
          (3) a certified, third-party appraiser pursuant to a 
        contract with the Indian tribe.
  (b) Time Limit on Secretarial Review and Action.--Not later 
than 30 days after the date on which the Secretary receives an 
appraisal conducted by or for an Indian tribe pursuant to 
paragraphs (2) or (3) of subsection (a), the Secretary shall--
          (1) review the appraisal; and
          (2) provide to the Indian tribe a written notice of 
        approval or disapproval of the appraisal.
  (c) Failure of Secretary To Approve or Disapprove.--If, after 
60 days, the Secretary has failed to approve or disapprove any 
appraisal received, the appraisal shall be deemed approved.
  (d) Option to Indian Tribes To Waive Appraisal.--
          (1) An Indian tribe wishing to waive the requirements 
        of subsection (a), may do so after it has satisfied the 
        requirements of subsections (2) and (3) below.
          (2) An Indian tribe wishing to forego the necessity 
        of a waiver pursuant to this section must provide to 
        the Secretary a written resolution, statement, or other 
        unambiguous indication of tribal intent, duly approved 
        by the governing body of the Indian tribe.
          (3) The unambiguous indication of intent provided by 
        the Indian tribe to the Secretary under paragraph (2) 
        must include an express waiver by the Indian tribe of 
        any claims for damages it might have against the United 
        States as a result of the lack of an appraisal 
        undertaken.
  (e) Definition.--For purposes of this subsection, the term 
``appraisal'' includes appraisals and other estimates of value.
  (f) Regulations.--The Secretary shall develop regulations for 
implementing this section, including standards the Secretary 
shall use for approving or disapproving an appraisal.

           *       *       *       *       *       *       *

                              ----------                              


NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

           *       *       *       *       *       *       *


TITLE I--DECLARATION OF NATIONAL ENVIRONMENTAL POLICY

           *       *       *       *       *       *       *


  Sec. 102. (a) In General._The Congress authorizes and directs 
that, to the fullest extent possible: (1) the policies, 
regulations, and public laws of the United States shall be 
interpreted and administered in accordance with the policies 
set forth in this Act, and (2) all agencies of the Federal 
Government shall--
          (A) * * *

           *       *       *       *       *       *       *

  (b) Review of Major Federal Actions on Indian Lands.--
          (1) In general.--For any major Federal action on 
        Indian lands of an Indian tribe requiring the 
        preparation of a statement under subsection (a)(2)(C), 
        the statement shall only be available for review and 
        comment by the members of the Indian tribe and by any 
        other individual residing within the affected area.
          (2) Regulations.--The Chairman of the Council on 
        Environmental Quality shall develop regulations to 
        implement this section, including descriptions of 
        affected areas for specific major Federal actions, in 
        consultation with Indian tribes.
          (3) Definitions.--In this subsection, each of the 
        terms ``Indian land'' and ``Indian tribe'' has the 
        meaning given that term in section 2601 of the Energy 
        Policy Act of 1992 (25 U.S.C. 3501).
          (4) Clarification of authority.--Nothing in the 
        Native American Energy Act, except section 8 of that 
        Act, shall give the Secretary any additional authority 
        over energy projects on Alaska Native Claims Settlement 
        Act lands.

           *       *       *       *       *       *       *

                              ----------                              


TRIBAL FOREST PROTECTION ACT OF 2004

           *       *       *       *       *       *       *


SEC. 3. TRIBAL BIOMASS DEMONSTRATION PROJECT.

  (a) In General.--For each of fiscal years 2013 through 2017, 
the Secretary shall enter into stewardship contracts or other 
agreements, other than agreements that are exclusively direct 
service contracts, with Indian tribes to carry out 
demonstration projects to promote biomass energy production 
(including biofuel, heat, and electricity generation) on Indian 
forest land and in nearby communities by providing reliable 
supplies of woody biomass from Federal land.
  (b) Definitions.--The definitions in section 2 shall apply to 
this section.
  (c) Demonstration Projects.--In each fiscal year for which 
projects are authorized, the Secretary shall enter into 
contracts or other agreements described in subsection (a) to 
carry out at least 4 new demonstration projects that meet the 
eligibility criteria described in subsection (d).
  (d) Eligibility Criteria.--To be eligible to enter into a 
contract or other agreement under this subsection, an Indian 
tribe shall submit to the Secretary an application--
          (1) containing such information as the Secretary may 
        require; and
          (2) that includes a description of--
                  (A) the Indian forest land or rangeland under 
                the jurisdiction of the Indian tribe; and
                  (B) the demonstration project proposed to be 
                carried out by the Indian tribe.
  (e) Selection.--In evaluating the applications submitted 
under subsection (c), the Secretary--
          (1) shall take into consideration the factors set 
        forth in paragraphs (1) and (2) of section 2(e) of 
        Public Law 108-278; and whether a proposed 
        demonstration project would--
                  (A) increase the availability or reliability 
                of local or regional energy;
                  (B) enhance the economic development of the 
                Indian tribe;
                  (C) improve the connection of electric power 
                transmission facilities serving the Indian 
                tribe with other electric transmission 
                facilities;
                  (D) improve the forest health or watersheds 
                of Federal land or Indian forest land or 
                rangeland; or
                  (E) otherwise promote the use of woody 
                biomass; and
          (2) shall exclude from consideration any merchantable 
        logs that have been identified by the Secretary for 
        commercial sale.
  (f) Implementation.--The Secretary shall--
          (1) ensure that the criteria described in subsection 
        (c) are publicly available by not later than 120 days 
        after the date of enactment of this section; and
          (2) to the maximum extent practicable, consult with 
        Indian tribes and appropriate intertribal organizations 
        likely to be affected in developing the application and 
        otherwise carrying out this section.
  (g) Report.--Not later than September 20, 2015, the Secretary 
shall submit to Congress a report that describes, with respect 
to the reporting period--
          (1) each individual tribal application received under 
        this section; and
          (2) each contract and agreement entered into pursuant 
        to this section.
  (h) Incorporation of Management Plans.--In carrying out a 
contract or agreement under this section, on receipt of a 
request from an Indian tribe, the Secretary shall incorporate 
into the contract or agreement, to the extent practicable, 
management plans (including forest management and integrated 
resource management plans) in effect on the Indian forest land 
or rangeland of the respective Indian tribe.
  (i) Term.--A stewardship contract or other agreement entered 
into under this section--
          (1) shall be for a term of not more than 20 years; 
        and
          (2) may be renewed in accordance with this section 
        for not more than an additional 10 years.
                              ----------                              


                         ACT OF AUGUST 9, 1955

AN ACT To authorize the leasing of restricted Indian lands for public, 
religious, educational, recreational, residential, business, and other 
           purposes requiring the grant of long-term leases.

  Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That (a) * 
* *

           *       *       *       *       *       *       *

  (e)(1) Any leases by the Navajo Nation for purposes 
authorized under subsection (a), and any amendments thereto[, 
except a lease for], including leases for the exploration, 
development, or extraction of any mineral resources, shall not 
require the approval of the Secretary if the lease is executed 
under the tribal regulations approved by the Secretary under 
this subsection and the term of the lease does not exceed--
          (A) in the case of a business or agricultural lease, 
        [25 years, except that any such lease may include an 
        option to renew for up to two additional terms, each of 
        which may not exceed 25 years; and] 99 years;
          (B) in the case of a lease for public, religious, 
        educational, recreational, or residential purposes, 75 
        years if such a term is provided for by the Navajo 
        Nation through the promulgation of regulations[.]; and
          (C) in the case of a lease for the exploration, 
        development, or extraction of mineral resources, 
        including geothermal resources, 25 years, except that 
        any such lease may include an option to renew for one 
        additional term not to exceed 25 years.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    H.R. 3973 imposes a number of changes on existing law or 
agency practice, all allegedly aimed at streamlining energy 
development on Indian lands. While we agree that development of 
tribal natural resources provide an opportunity for significant 
economic benefits in Indian country, H.R. 3973 overreaches in 
pursuit of its purported goal by eliminating much-needed 
federal protections under the National Environmental Policy Act 
(NEPA) and by weakening important legal devices for those 
seeking environmental justice. In a blatant attempt to chill 
litigation, H.R. 3973 requires a claimant to post a significant 
bond in order to bring claims that a court initially determines 
would succeed on the merits, and prevents recovery of 
attorneys' fees in cases challenging energy projects. Even 
absent these offending provisions, H.R. 3973 is still 
inadequate to address comprehensive reforms identified by a 
broad coalition of tribes, including the National Congress of 
American Indians (NCAI). The bill instead focuses on a few 
priorities that even fewer tribes have supported on the record. 
For these reasons, H.R. 3973 should be rejected by the House.
    Section 5 of this legislation would amend NEPA by mandating 
that Environmental Impact Statements ``for any major federal 
action'' on Indian lands by an Indian tribe ``shall only be 
available for review and comment by the members of the Indian 
tribe and by any other individual residing within the affected 
area.'' This limitation severely curtails public involvement in 
proposed federal projects that may affect the environment--a 
central tenet of NEPA--thus contributing to uninformed decision 
making at the federal level. And because ``affected area'' is 
undefined in the bill, uniform application of the provision is 
doubtful and invites legal scrutiny by those individuals who 
may be negatively impacted by a proposed project but who were 
artificially excluded from review and comment. Section 5 could 
therefore lead to lawsuits that further delay development of 
tribal energy projects--an outcome that is contrary to the 
stated goal of this legislation. Finally, by its own terms, 
Section 5 is applicable to more than energy projects; it 
applies to any major federal project on Indian land by Indian 
tribes. Such actions include, but are not limited to, proposed 
mining contracts, proposed water development projects, 
construction of solid waste facilities, and even construction 
of tribal class III gaming facilities. The negative impact of 
this provision's waiver of NEPA protections for not just 
energy-related but any type of federal action on Indian lands 
cannot be overstated.
    Section 8 of this legislation prevents rightful judicial 
review of energy projects on Indian lands in three significant 
ways. First, it makes members of the public who bring claims 
that a court initially determines to be successful on the 
merits potentially liable for massive damages. This ``loser 
pay'' provision slams the courthouse door shut by making it 
difficult, if not impossible, for members of the public--even 
tribal members whose homelands may be impacted by a major 
federal action of any kind--from bringing suits to prevent 
environmental harm. Members of the Navajo Nation, for example, 
experienced firsthand the destruction caused by environmental 
disaster near Gallup, New Mexico, when United Nuclear 
Corporation's Church Rock uranium mill tailings disposal pond 
breached its dam and over 1000 tons of radioactive mill waste 
and approximately 93 million gallons of mine effluent flowed 
into a nearby river. Widespread radioactive contamination from 
this disaster near Navajo lands persist to this day; if H.R. 
3973 were law at the time of this disaster, tribal victims 
without the financial capacity to file suit would have been 
barred from the courthouse. To be sure, we cannot support a 
bill that prevents legitimate claims from being brought by 
victims of environmental disasters caused by energy development 
projects simply because they cannot afford their day in court.
    Second, Section 8 requires claimants to post a 30 percent 
bond in an amount a court determines is ``sufficient to 
compensate each defendant opposing the preliminary injunction 
or administrative stay for damages'' for costs associated with 
the lawsuit. The cost of obtaining a bond that equals 30 
percent of a lawsuit's proposed damages could be staggering, 
especially for large-scale commercial energy projects, and 
would likely bar legitimate claims from being filed in the 
first instance.
    Third, Section 8 prevents recovery of attorneys' fees in 
cases challenging federal action on Indian lands, making it 
difficult for potential claimants to secure legal 
representation. And because this section defines ``energy 
related action'' broadly, its restrictive judicial review 
provisions would apply equally to energy projects done in 
partnership with an Indian tribe even on non-tribal lands 
anywhere in the country. This provision invites the partnering 
of energy corporations with Indian tribes for the purpose of 
limiting judicial review, creating a significant loophole for 
these companies for virtually consequence-free development.
    H.R. 3973's judicial review limitations are clearly 
intended to chill litigation to the detriment of bona fide 
claimants, and they undermine the real teeth of NEPA by making 
the availability of injunctive relief when an agency fails to 
fulfill the statute's procedural requirements all but 
disappear. Any legislation that would keep legitimate claims 
from being brought by victims of environmental disasters simply 
because they lack financial resources and furthermore prevents 
application of NEPA as H.R. 3973 would, should not be allowed 
to advance in the House.
    There is a better legislative solution to breaking down 
tribal energy development barriers, one that is supported by 
NCAI and subject to extensive review by tribes from across the 
country. Title I of S. 1684, the Indian Tribal Energy 
Development and Self-Determination Act Amendments, would begin 
to address the energy development lag in Indian country by 
enhancing tribal control over the management and development of 
tribes' own trust resources based on existing law. The Energy 
Policy Act of 2005 authorizes tribes to enter into leases and 
other business agreements for energy resource development and 
grant rights of way without prior federal approval under Tribal 
Energy Resource Agreements (TERAs). But due to a burdensome and 
complex application process, no tribe has successfully applied 
for a TERA in the seven years that tribes have had this 
authority.
    Title I of S. 1684 amends the TERA process by streamlining 
the criteria for approval, setting time limits for the approval 
process and shifting the burden from the tribe to the federal 
agency to disapprove a TERA application. It also provides for a 
new approach to tribal energy development with the introduction 
of Tribal Energy Development Organizations (TEDOs), which a 
tribe could form in lieu of entering into a TERA with DOI in 
order to develop tribal energy resources with more tribal 
autonomy.
    During Committee markup of H.R. 3973, Representative Lujan 
(D-NM) offered an amendment in the nature of a substitute (ANS) 
that would have replaced H.R. 3973 with Title I of S. 1684. 
Despite being based on a Senate Republican bill introduced by 
Senator Barrasso (R-WY) and cosponsored by four other 
Republicans, House Committee Republicans voted the ANS down 
unanimously.
    We oppose H.R. 3973 because it contravenes existing 
environmental protections and eliminates the critical check 
provided by the judiciary on the exercise of power by other 
branches of government. It is also insufficient legislation to 
address the breadth of reforms needed to reduce government 
barriers to energy development for Indian tribes.

                                   Edward J. Markey.
                                   Rush D. Holt.
                                   Paul Tonko.
                                   Grace F. Napolitano.
                                   Raul M. Grijalva.
                                   Ben Ray Lujan.

                                  
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