[House Report 114-276]
[From the U.S. Government Publishing Office]


114th Congress    }                                     {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                     {      114-276

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



 
                       NATIVE AMERICAN ENERGY ACT

                                _______
                                

October 1, 2015.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 538]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 538) 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 without amendment 
and recommend that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 538 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


Obstacles to Indian Energy Development

    Tribes and individual Indian landowners regularly encounter 
obstacles not encountered by private and state landowners in 
the development of their lands. In general, federal law 
requires the approval of the Secretary of the Interior 
(generally through the Bureau of Indian Affairs (BIA)) for a 
tribe or individual Indian to execute a lease agreement on land 
the United States holds in trust for the respective tribe or 
individual. Such is the case with respect to energy development 
on Indian trust lands. Under the Indian Land Mineral Leasing 
Act of 1982 (25 U.S.C. 2101 et seq.), a tribe or individual 
Indian may lease their trust lands for mineral development 
``subject to the approval of the Secretary.'' Pursuant to this 
authority, the Department of the Interior 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, and numerous other layers of dilatory bureaucratic 
review often involving multiple agencies. Each layer of review 
gives federal or private special interests an opportunity to 
interfere, delay, appeal, or sue to slow or stop permitting of 
natural resource development on Indian lands.
    The current federal regulatory scheme obstructs 
historically impoverished tribes from fully realizing the huge 
economic potential of developing their assets. Because tribes 
with large energy resources tend to be located in rural areas, 
development of these resources offers one of the few non-
government means available for them to create jobs and a 
revenue stream to meet member demands for tribal services or 
activities, investment in the local community, and new energy 
supply to meet consumer demand.
    In one example, the Chairman of the Crow tribe in 2013 
stated the following:

          BIA records for surface and mineral ownership are 
        often erroneous, missing, and out of date. These 
        problems cause significant delay in preparation of 
        environmental documents and land records necessary for 
        project evaluation and development. The BIA lacks the 
        staffing necessary to provide accurate information on 
        Reservation surface and mineral ownership, and to 
        resolve additional questions that arise. This makes our 
        projects less competitive with off-reservation 
        development. Many companies view this, in addition to 
        other problems, as another prohibitive cost of doing 
        business on the Crow Reservation. . . . However, 
        despite our best efforts, BIA staff shortages and 
        [Office of Special Trustee] appraisal requirements have 
        resulted in a much more difficult and time-consuming 
        process in developing a large energy project on the 
        Crow Reservation than would be the case off-
        reservation. The delays and added costs have hindered 
        the development of energy projects of all scales in the 
        past, and have been a major source of frustration for 
        project developers as well as for the Crow Nation and 
        its citizens.\1\
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    \1\H.R. 1548, Native American Energy Act. Statement for the Record 
of Chairman Darren Old Coyote, Crow Nation. Hearing before Subcommittee 
on Indian and Alaska Native Affairs, 113th Congress (2013).

    A representative of the Southern Ute Indian Tribe in 2014 
described the delays inherent in the BIA's review of some of 
its energy-related documents. As of April 30, 2014, the tribe 
had been waiting at least five years for the BIA to review 81 
pipeline rights-of-way agreements; 11 of the 81 rights-of-way 
applications had been under review for eight years. According 
to the Southern Ute witness, had these rights-of-way 
applications been approved in a timely manner, the tribe would 
have received revenue through various sources, including tribal 
permitting fees, oil and gas severance taxes, and royalties. 
The official noted that, during the period of delay, prices for 
natural gas rose to an historic high but had since declined. 
Therefore, the official reported that much of the estimated $95 
million in foregone revenue would never be recovered by the 
tribe.\2\
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    \2\S. 2132, the Indian Tribal Energy and Self-Determination Act 
Amendments. Statement of the Honorable James Mike Olguin, Acting 
Chairman, Southern Ute Indian Tribal Council on behalf of the Southern 
Ute Indian Tribe, 113th Congress.
---------------------------------------------------------------------------
    On June 8, 2015, the Government Accountability Office (GAO) 
released a report titled Indian Energy Development: Poor 
Management by BIA Has Hindered Energy Development on Indian 
Lands.\3\ In its report, the GAO documented serious 
shortcomings in the Interior Department's administration of 
energy development on Indian lands, shortcomings that ``can 
increase costs and project development times, resulting in 
missed development opportunities, lost revenue, and jeopardized 
viability of projects.''\4\
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    \3\GAO-15-502.
    \4\Id. at 1.
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    For example, the GAO described how one tribe estimated it 
had lost out on more than $95 million in revenues it could have 
earned due to delays. Further, as the report states, 
``According to Interior officials, while the potential for oil 
and gas development can be identical regardless of the type of 
land ownership--such as state, private or Indian--the added 
complexity of the federal process stops many developers from 
pursuing Indian oil and gas resources for development.''\5\
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    \5\Id. at 24.
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    The GAO had found that ``. . . in 2014, the agency 
developed the Realty Tracking System. According to BIA 
officials, this system provides the data needed to track 
reviews of surface leases. However the system does not track 
information for oil or gas leases or other key review 
activities associated with energy development, such as ROW 
[right-of-way] agreements, and does not include comprehensive 
data on existing surface leases under review.''\6\
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    \6\Id. at 23.
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Recent changes in federal Indian law concerning energy

    The Energy Policy Act of 2005 (25 U.S.C. 3501 et seq.) 
authorized tribes to enter into Tribal Energy Resource 
Agreements (TERA) with the Secretary of the Interior. Under a 
TERA, a tribe would develop energy leasing rules that, after 
review and approval by the Secretary of the Interior, would 
govern the tribe's leasing of its lands for energy development 
purposes. Under a TERA approved by the Secretary, a tribe could 
execute energy leases on its lands without review and approval 
by the BIA and without day-to-day supervision of the lease by 
the government except the Secretary's duty to monitor the 
tribe's compliance with the TERA.
    After a decade since passage, no tribe has successfully 
entered into a TERA with the Secretary. The GAO report cited a 
few reasons, which include: (1) uncertainty about TERA 
regulations; (2) limited tribal capacity and costs associated 
with assuming activities currently conducted by federal 
agencies; and (3) a complex application process.\7\
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    \7\See GAO-15-502 at 32.
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Energy resources on Indian lands

    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. In Alaska, Alaska Native 
Corporations (ANCs) own 44 million acres of fee land (not under 
the jurisdiction of the Department of the Interior). The ANCs 
obtained these lands in settlement of their aboriginal land 
claims under the Alaska Native Claims Settlement Act of 1971 
(ANCSA, 43 U.S.C. 1617 et seq.).
    A number of Indian reservations contain large accumulations 
of known and prospective mineral resources. In 2013 alone, 
royalty revenues paid to Indian tribes and individual Indian 
allottees from mineral development was in excess of $970 
million.\8\ The two largest components of this amount came from 
the sale of nearly 30 million barrels of oil and more than 200 
billion cubic feet of gas.
---------------------------------------------------------------------------
    \8\Fiscal Year 2016 Budget Justification, Bureau of Indian Affairs, 
IA-CED-8.
---------------------------------------------------------------------------
    In Alaska, several ANCs are actively engaged in leasing 
their fee lands for mineral development, and in operating or 
servicing oil and gas facilities on State lands and in the 
National Petroleum Reserve-Alaska. Kaktovik Inupiat 
Corporation, which owns fee lands in the 1002 Area (coastal 
plain) of the Arctic National Wildlife Refuge (ANWR), seeks to 
develop its prospective oil and gas resources; however, it is 
prohibited from doing so until Congress lifts the current 
federal restriction on leasing in the coastal plain of ANWR.
    Breakthroughs in the use of hydraulic fracturing to produce 
oil and gas from large hydrocarbon-bearing shale formations 
have given several historically impoverished tribes a major 
economic opportunity.
    Additionally, there are high wind and solar prospects in a 
number of Indian reservations. In 2013, the Department issued a 
final rule\9\ revising surface (non-mineral) leasing of Indian 
trust lands, including streamlining for approval of wind and 
solar projects. Also, wind and solar industries have been 
heavily subsidized by the government. In spite of these 
efforts, only one significant wind project is generating power 
on tribal lands.\10\ The GAO report cited, as previously 
observed, that in 2011, the Rosebud Sioux Tribe in South Dakota 
reported that it took 18 months for the BIA to review a wind 
lease.
---------------------------------------------------------------------------
    \9\25 C.F.R. Part 162.
    \10\https://www.hcn.org/articles/federal-agency-shortcomings-
stalling-solar-wind-tribal-winds
---------------------------------------------------------------------------

Hydraulic fracturing

    One of the major threats to oil and gas development on 
Indian lands is the Obama Administration's rule to regulate 
hydraulic fracturing (HF) on public lands, a rule promulgated 
by the Bureau of Land Management (BLM) of the Department of the 
Interior. For the purposes of this rule, the BLM has deemed 
public lands to include land held in trust for Indians. Though 
title to Indian trust lands is owned by the federal government 
in a technical legal sense, the beneficial interest in such 
lands is vested exclusively in the Indian beneficiaries. In 
other words, the public does not have a legal right to the use 
of Indian trust lands. The BLM's HF rule turns this fundamental 
tenet of federal Indian policy on its head.
    What is remarkable is the Obama Administration's 
inconsistency in its treatment of Indian trust lands. For 
purposes of mineral development, the Administration treats 
Indian trust lands as public land. But for purposes of the 
cultivation and commercial sale of marijuana--activities 
prohibited by federal criminal law--the Obama Administration 
has determined to use its discretion not to enforce such laws 
on Indian lands on the grounds that such lands are uniquely 
under the sovereign control of their tribal owners.\11\ On the 
surface, it would appear the Administration believes the 
production and sale of illegal drugs presents a better long-
term economic model for Indian tribes to follow than mineral 
extraction. Aside from the question whether this is sound 
federal Indian policy, the Administration's view regarding the 
status of Indian lands--not ``sovereign'' for energy 
development but ``sovereign'' for marijuana production--is 
inconsistent.
---------------------------------------------------------------------------
    \11\See Memo from U.S. Department of Justice Executive Office for 
United States Attorneys to All U.S. Attorneys, dated October 28, 2014; 
See Also, ``U.S. won't stop Native Americans from growing, selling pot 
on their lands,'' by Timothy M. Phelps, Los Angeles Times, December 11, 
2014.
---------------------------------------------------------------------------
    In an April 19, 2012, Subcommittee on Indian and Alaska 
Native Affairs oversight hearing, tribal leaders testified that 
the proposed HF rule could further 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. As one tribal witness 
explained, ``BLM's proposed rule to address public outcry for 
activities on public lands overreaches its goal and infringes 
on tribal sovereign authority to make decisions concerning 
development on reservation lands.''\12\
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    \12\http://naturalresources.house.gov/uploadedfiles/
showtestimony04.19.12.pdf
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    Moreover, the BLM HF rule would reduce the competitiveness 
of Indian tribes in energy markets. On reservations where 
Indian trust lands and non-Indian fee lands are intermixed in a 
checkerboard 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 rules govern.
    More recently, on July 15, 2015, the Subcommittee on Energy 
and Mineral Resources held an oversight hearing to contemplate 
the impacts of BLM's final rule\13\ regulating hydraulic 
fracturing on Federal lands.\14\ In the hearing, a tribal 
leader testified that the final rule wrongly fails to separate 
tribal lands from public lands.\15\
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    \13\80 Fed. Reg. 16128.
    \14\The Future of Hydraulic Fracturing on Federally Managed Lands. 
Hearing before the Subcommittee on Energy and Mineral Resources, 114th 
Congress (2015).
    \15\Id., 4.
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Need for H.R. 538

    The Native American Energy Act addresses concerns various 
Indian tribal and Alaska Native leaders brought to the 
attention of the Committee in previous hearings and 
consultations. H.R. 538 helps tribes and Alaska Natives 
expedite and streamline the leasing and development of energy 
and other natural resources (such as timber) in cases where 
federal laws or policies are a hindrance to them. A section-by-
section analysis follows to explain the specific provisions to 
improve tribal self-governance over natural resources held in 
trust for the benefit of their communities and for future 
generations of American Indians and Alaska Natives.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 sets forth the short title, the ``Native American 
Energy Act.''

Section 2. Appraisals

    Section 2 sets forth that an appraisal of Indian land, at 
the option of a tribe, is permitted to be conducted by the 
Secretary of the Interior, the tribe, or a certified third-
party appraiser. The Secretary must act within 30 days by both 
reviewing the appraisal and providing the Indian tribe a 
written notice of approval or disapproval. Should the Secretary 
fail to approve or disapprove an appraisal within 60 days, the 
appraisal of the Indian land shall be deemed approved.
    Section 2 further provides that an Indian tribe may waive 
any appraisal as long as the tribe provides the Secretary: a 
written resolution, statement, or unambiguous indication of 
intent which is approved by the governing body of the tribe, 
and an unambiguous indication of intent must include an express 
waiver by the tribe of claims it may have against the United 
States.
    Subsection (e) of section 2 sets forth that the definition 
of appraisal includes estimates of value. Subsection (f) sets 
forth that the Secretary shall develop regulations for 
implementing the appraisal process of Indian land for energy 
development. These regulations must include standards by which 
appraisals are approved or disapproved.

Section 3. Standardization

    Section 3 directs the Secretary of the Interior to 
standardize how the seven bureaus within Department of Interior 
track oil and gas activities on Indian lands.

Section 4. Environmental reviews of major federal actions on Indian 
        lands

    Section 4 amends Section 102 of the National Environmental 
Policy Act of 1969\16\ to provide that for any environmental 
impact statement required 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 individuals residing within the affected area. 
Section 4 additionally sets forth that the Chairman of the 
Council on Environmental Quality shall develop regulations to 
implement this section. This amendment addresses complaints 
from several tribes that certain federal laws--including NEPA--
treat Indian-owned lands as public lands.
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    \16\42 U.S.C. 4332
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Section 5. Judicial review

    Section 5 would deter the filing of a frivolous lawsuit 
intended to slow or stop federal permitting, licensing, or 
other federal permission relating to Indian or Alaska Native 
energy development. In this context, a frivolous lawsuit is one 
whose purpose is not to prevail on the merits but to use the 
time delays and high costs inherent in a federal lawsuit 
process to stymie federal agency permission or approvals for an 
Indian tribe or ANC to develop energy resources.
    Further, section 5 expedites the time of filing and 
resolving lawsuits against Indian or ANC related energy 
development activities, and provides that such lawsuits must be 
brought in the U.S. District Court for the District of Columbia 
Circuit. No taxpayer funds may be used to reimburse fees or 
expenses for plaintiffs filing these frivolous lawsuits, and 
the plaintiffs must pay fees and expenses to a defendant (other 
than the United States) unless they ultimately prevail, or 
unless the court finds the position of the plaintiff was 
substantially justified or special circumstances make an award 
unjust.

Section 6. Tribal biomass demonstration project

    Section 6 amends the Tribal Forest Protection Act of 2004 
(25 U.S.C. 3115a.) 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. This would provide new 
tools to tribes to ensure neighboring federal forestlands or 
rangelands are healthy and do not threaten reservation lands 
with wildfire or disease.

Section 7. Tribal resource management plans

    Section 7 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 fee to claim a certification that the entity's forest 
plan is ``sustainable.''

Section 8. Leases of restricted lands for the Navajo Nation

    Section 8 enhances Navajo Nation leasing authority by 
amending subsection (e)(1) of the first section of the Long-
Term Leasing Act (25 U.S.C. 415.) requires a separate review 
and approval by the Secretary of the Interior for each non-
mineral lease of a tribe's land, triggering a lengthy, detailed 
review by the federal bureaucracy, and the potential 
preparation of an environmental review under NEPA. In the 112th 
Congress, the HEARTH Act\17\ was enacted to allow any tribe to 
develop non-mineral leasing rules, and when such rules are 
approved by the Secretary, the tribe may then execute leases 
without further Departmental involvement. This section would 
also extend the maximum term for a business or agricultural 
lease under this subsection of the Long-Term Leasing Act to 99 
years. For leases for exploration, development, or extraction 
of mineral resources, other than oil and gas resources, the 
maximum lease term is 25 years, with an option to renew for 1 
additional term up to 25 years. For leases for the exploration, 
development, or extraction of an oil or gas resource, the 
maximum term is 10 years, plus any such additional period as 
the Navajo Nation determines to be appropriate in any case in 
which an oil or gas resource is produced in a paying quantity.
---------------------------------------------------------------------------
    \17\See Public Law 112-151, the Helping Expedite and Advance 
Responsible Tribal Homeownership Act, 112th Congress.
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Section 9. Nonapplicability of certain rules

    Section 9 set forth that no rule promulgated by the 
Department of the Interior regarding hydraulic fracturing for 
the production of oil and gas resources shall have any effect 
on Indian owned land unless there is an expressed consent of 
the Indian beneficiary.

                            Committee Action

    H.R. 538 was introduced on January 26, 2015, 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, 
Insular and Alaska Native Affairs. On September 9, 2015, the 
Natural Resources Committee met to consider the bill. The 
Subcommittees were discharged by unanimous consent. Congressman 
Raul M. Grijalva (D-AZ) offered Amendment designated 042 was 
not adopted by a bipartisan roll call vote of 10 yeas and 22 
nays, as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    No additional amendments were offered and the bill was 
ordered favorably reported to the House of Representatives by a 
bipartisan roll call vote of 23 yeas and 12 nays on September 
10, 2015, as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            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. 538--Native American Energy Act

    H.R. 538 would make several changes related to 
environmental laws, energy programs, and the management of 
mineral resources on Native American reservations. CBO 
estimates that implementing H.R. 538 would have no significant 
effect on federal spending. The bill would:
           Require the Department of the Interior (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. Based on information from DOI, CBO 
        estimates that implementing that section would not 
        significantly affect the federal cost of the appraisal 
        process.
           Require DOI to use a uniform reference 
        system for tracking oil and gas wells. DOI already uses 
        the American Petroleum Institute's well-numbering 
        system to identify and track oil and gas wells; 
        therefore, CBO estimates that implementing that 
        provision would have no cost to DOI.
           Restrict the review of and comments on 
        environmental impact statements of projects on tribal 
        lands to members of the tribe and residents of the 
        area. Based on information from DOI, CBO estimates this 
        provision would not significantly change the agency's 
        workload and that implementing it would not have a 
        significant affect on DOI's budget.
           Require DOI to enter into contracts for 
        energy demonstration projects using timber from federal 
        forests that is not marketable. Because the timber 
        affected under the bill would not be marketable, 
        enacting the legislation would not affect timber 
        receipts to the federal government. Additionally, CBO 
        estimates that implementing the projects would not have 
        a significant effect on DOI's operations.
           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 DOI's 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 not be recorded on the federal 
        budget. Approving longer leases would not add to DOI' s 
        workload or operating costs.
           Prohibit the payment of attorneys' fees 
        under the Equal Access to Justice Act (EAJA) for 
        lawsuits regarding energy projects on tribal lands. 
        Based on information about the history of such payments 
        provided by the Government Accountability Office, CBO 
        estimates that any savings from prohibiting such 
        payments would be insignificant.
    Because H.R. 538 would prohibit the federal government from 
paying attorneys' fees under the EAJA for lawsuits regarding 
energy projects on tribal lands, enacting the bill would affect 
direct spending and pay-as-you-go procedures apply. A portion 
of those payments comes from the Claims and Judgment Fund and 
is recorded in the budget as direct spending. CBO estimates 
that any reduction in those payments under H.R. 538 would be 
insignificant because historically such payments have been 
small. Enacting H.R. 538 would not affect revenues.
    H.R. 538 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by H. Samuel Papenfuss, 
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. The Congressional 
Budget Office estimates ``[e]nacting H.R. 538 would not affect 
revenues.''
    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 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.

                       Compliance With H. Res. 5

    Directed Rule Making. The Chairman believes that this bill 
directs an executive branch official to conduct two specific 
rule-making proceedings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                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, and existing law in which no 
change is proposed is shown in roman):

                       ENERGY POLICY ACT OF 1992

SEC. 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) * * *
  (b) Table of Contents.--

           *       *       *       *       *       *       *


                   TITLE XXVI--INDIAN ENERGY RESOURCES

Sec. 2601. Definitions.
     * * * * * * *
Sec. 2607. Appraisal reforms.

           *       *       *       *       *       *       *


TITLE XXVI--INDIAN ENERGY RESOURCES

           *       *       *       *       *       *       *


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 paragraphs (2) and (3).
          (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) utilize a systematic, interdisciplinary approach 
        which will insure the integrated use of the natural and 
        social sciences and the environmental design arts in 
        planning and in decisionmaking which may have an impact 
        on man's environment;
          (B) identify and develop methods and procedures, in 
        consultation with the Council on Environmental Quality 
        established by title II of this Act, which will insure 
        that presently unquantified environmental amenities and 
        values may be given appropriate consideration in 
        decisionmaking along with economic and technical 
        considerations;
          (C) include in every recommendation or report on 
        proposals for legislation and other major Federal 
        actions significantly affecting the quality of the 
        human environment, a detailed statement by the 
        responsible official on--
                  (i) the environmental impact of the proposed 
                action,
                  (ii) any adverse environmental effects which 
                cannot be avoided should the proposal be 
                implemented,
                  (iii) alternatives to the proposed action,
                  (iv) the relationship between local short-
                term uses of man's environment and the 
                maintenance and enhancement of long-term 
                productivity, and
                  (v) any irreversible and irretrievable 
                commitments of resources which would be 
                involved in the proposed action should it be 
                implemented.
        Prior to making any detailed statement, the responsible 
        Federal official shall consult with and obtain the 
        comments of any Federal agency which has jurisdiction 
        by law or special expertise with respect to any 
        environmental impact involved. Copies of such statement 
        and the comments and views of the appropriate Federal, 
        State, and local agencies, which are authorized to 
        develop and enforce environmental standards, shall be 
        made available to the President, the Council on 
        Environmental Quality and to the public as provided by 
        section 552 of title 5, United States Code, and shall 
        accompany the proposal through the existing agency 
        review processes;
          (D) Any detailed statement required under 
        subparagraph (C) after January 1, 1970, for any major 
        Federal action funded under a program of grants to 
        States shall not be deemed to be legally insufficient 
        solely by reason of having been prepared by a State 
        agency or official, if:
                  (i) the State agency or official has 
                statewide jurisdiction and has the 
                responsibility for such action,
                  (ii) the responsible Federal official 
                furnishes guidance and participates in such 
                preparation,
                  (iii) the responsible Federal official 
                independently evaluates such statement prior to 
                its approval and adoption, and
                  (iv) after January 1, 1976, the responsible 
                Federal official provides early notification 
                to, and solicits the views of, any other State 
                or any Federal land management entity of any 
                action or any alternative thereto which may 
                have significant impacts upon such State or 
                affected Federal land management entity and, if 
                there is any disagreement on such impacts, 
                prepares a written assessment of such impacts 
                and views for incorporation into such detailed 
                statement.
        The procedures in this subparagraph shall not relieve 
        the Federal official of his responsibilities for the 
        scope, objectivity, and content of the entire statement 
        or of any other responsibility under this Act; and 
        further, this subparagraph does not affect the legal 
        sufficiency of statements prepared by State agencies 
        with less than statewide jurisdiction.
          (E) study, develop, and describe appropriate 
        alternatives to recommended courses of action in any 
        proposal which involves unresolved conflicts concerning 
        alternative uses of available resources;
          (F) recognize the worldwide and long-range character 
        of environmental problems and, where consistent with 
        the foreign policy of the United States, lend 
        appropriate support to initiatives, resolutions, and 
        programs designed to maximize international cooperation 
        in anticipating and preventing a decline in the quality 
        of mankind's world environment;
          (G) make available to States, counties, 
        municipalities, institutions, and individuals, advice 
        and information useful in restoring, maintaining, and 
        enhancing the quality of the environment;
          (H) initiate and utilize ecological information in 
        the planning and development of resource-oriented 
        projects; and
          (I) assist the Council on Environmental Quality 
        established by title II of this Act.
  (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 6 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 2016 through 2020, 
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 one year subsequent to the date 
of enactment of this section, 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 (COMMONLY REFERRED TO AS THE LONG-TERM LEASING 
                                  ACT)

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) 
any restricted Indian lands, whether tribally or individually 
owned, may be leased by the Indian owners, with the approval of 
the Secretary of the Interior, for public, religious, 
educational, recreational, residential, or business purposes, 
including the development or utilization of natural resources 
in connection with operations under such leases, for grazing 
purposes, and for those farming purposes which require the 
making of a substantial investment in the improvement of the 
land for the production of specialized crops as determined by 
said Secretary. All leases so granted shall be for a term of 
not to exceed twenty-five years, except leases of land located 
outside the boundaries of Indian reservations in the State of 
New Mexico, leases of land on the Agua Caliente (Palm Springs) 
Reservation, the Dania Reservation, the Pueblo of Santa Ana 
(with the exception of the lands known as the ``Santa Ana 
Pueblo Spanish Grant''), the reservation of the Confederated 
Tribes of the Warm Springs Reservation of Oregon, the Moapa 
Indian Reservation, the Swinomish Indian Reservation, the 
Southern Ute Reservation, the Fort Mojave Reservation, the 
Confederated Tribes of the Umatilla Indian Reservation, the 
Burns Paiute Reservation, the Kalispel Indian Reservation and 
land held in trust for the Kalispel Tribe of Indians, the 
Puyallup Tribe of Indians,, the pueblo of Cochiti, the pueblo 
of Pojoaque, the pueblo of Tesuque, the pueblo of Zuni, the 
Hualapai Reservation, the Spokane Reservation, the San Carlos 
Apache Reservation, the Yavapai-Prescott Community 
Reservations, the Pyramid Lake Reservation, the Gila River 
Reservation, the Soboba Indian Reservation, the Viejas Indian 
Reservation, the Tulalip Indian Reservation, the Navajo 
Reservation, the Cabazon Indian Reservation, the Muckleshoot 
Indian Reservation and land held in trust for the Muckleshoot 
Indian Tribe, the Mille Lacs Reservation with respect to a 
lease between an entity established by the Mille Lacs Band of 
Chippewa Indians and the Minnesota Historical Society, leases 
of the the lands comprising the Moses Allotment Numbered 8 and 
the Moses Allotment Numbered 10, Chelan County, Washington, and 
lands held in trust for the Las Vegas Paiute Tribe of Indians, 
and lands held in trust for the Twenty-nine Palms Band of 
Luiseno Mission Indians, and lands held in trust for the Reno 
Sparks Indian Colony, lands held in trust for the Torres 
Martinez Desert Cahuilla Indians, lands held in trust for the 
Guidiville Band of Pomo Indians of the Guidiville Indian 
Rancheria, lands held in trust for the Confederated Tribes of 
the Umatilla Indian Reservation, lands held in trust for the 
Confederated Tribes of the Warm Springs Reservation of Oregon, 
land held in trust for the Coquille Indian Tribe, land held in 
trust for the Confederated Tribes of Siletz Indians, land held 
in trust for the Confederated Tribes of the Coos, Lower Umpqua, 
and Siuslaw Indians, land held in trust for the Klamath Tribes, 
and land held in trust for the Burns Paiute Tribe, and lands 
held in trust for the Cow Creek Band of Umpqua Tribe of 
Indians, land held in trust for the Prairie Band Potawatomi 
Nation, lands held in trust for the Cherokee Nation of 
Oklahoma, land held in trust for the Fallon Paiute Shoshone 
Tribes, lands held in trust for the Pueblo of Santa Clara, land 
held in trust for the Yurok Tribe, land held in trust for the 
Hopland Band of Pomo Indians of the Hopland Rancheria, lands 
held in trust for the Yurok Tribe, lands held in trust for the 
Hopland Band of Pomo Indians of the Hopland Rancheria, lands 
held in trust for the Confederated Tribes of the Colville 
Reservation, lands held in trust for the Cahuilla Band of 
Indians of California, lands held in trust for the confederated 
Tribes of the Grand Ronde Community of Oregon, and the lands 
held in trust for the Confederated Salish and Kootenai Tribes 
of the Flathead Reservation, Montana, and leases to the Devils 
Lake Sioux Tribe, or any organization of such tribe, of land on 
the Devils Lake Sioux Reservation, and lands held in trust for 
Ohkay Owingeh Pueblo which may be for a term of not to exceed 
ninety-nine years, and except leases of land held in trust for 
the Morongo Band of Mission Indians which may be for a term of 
not to exceed 50 years, and except leases of land for grazing 
purposes which may be for a term of not to exceed ten years. 
Leases for public, religious, educational, recreational, 
residential, or business purposes with the consent of both 
parties may include provisions authorizing their renewal for 
one additional term of not to exceed twenty-five years, and all 
leases and renewals shall be made under such terms and 
regulations as may be prescribed by the Secretary of the 
Interior. Prior to approval of any lease or extension of an 
existing lease pursuant to this section, the Secretary of the 
Interior shall first satisfy himself that adequate 
consideration has been given to the relationship between the 
use of the leased lands and the use of neighboring lands; the 
height, quality, and safety of any structures or other 
facilities to be constructed on such lands; the availability of 
police and fire protection and other services; the availability 
of judicial forums for all criminal and civil causes arising on 
the leased lands; and the effect on the environment of the uses 
to which the leased lands will be subject.
  (b) Any lease by the Tulalip Tribes, the Puyallup Tribe of 
Indians, the Swinomish Indian Tribal Community, or the Kalispel 
Tribe of Indians under subsection (a) of this section, except a 
lease for the exploitation of any natural resource, shall not 
require the approval of the Secretary of the Interior (1) if 
the term of the lease does not exceed fifteen years, with no 
option to renew, (2) if the term of the lease does not exceed 
thirty years, with no option to renew, and the lease is 
executed pursuant to tribal regulations previously approved by 
the Secretary of the Interior, or (3) if the term does not 
exceed seventy-five years (including options to renew), and the 
lease is executed under tribal regulations approved by the 
Secretary under this clause (3).
  (c) Leases Involving the Hopi Tribe and the Hopi Partitioned 
Lands Accommodation Agreement.--Notwithstanding subsection (a), 
a lease of land by the Hopi Tribe to Navajo Indians on the Hopi 
Partitioned Lands may be for a term of 75 years, and may be 
extended at the conclusion of the term of the lease.
  (d) Definitions.--For purposes of this section--
          (1) the term ``Hopi Partitioned Lands'' means lands 
        located in the Hopi Partitioned Area, as defined in 
        section 168.1(g) of title 25, Code of Federal 
        Regulations (as in effect on the date of enactment of 
        this subsection);
          (2) the term ``Navajo Indians'' means members of the 
        Navajo Tribe;
          (3) the term ``individually owned Navajo Indian 
        allotted land'' means a single parcel of land that--
                  (A) is located within the jurisdiction of the 
                Navajo Nation;
                  (B) is held in trust or restricted status by 
                the United States for the benefit of Navajo 
                Indians or members of another Indian tribe; and
                  (C) was--
                          (i) allotted to a Navajo Indian; or
                          (ii) taken into trust or restricted 
                        status by the United States for an 
                        individual Indian;
          (4) the term ``interested party'' means an Indian or 
        non-Indian individual or corporation, or tribal or non-
        tribal government whose interests could be adversely 
        affected by a tribal trust land leasing decision made 
        by an applicable Indian tribe;
          (5) the term ``Navajo Nation'' means the Navajo 
        Nation government that is in existence on the date of 
        enactment of this Act or its successor;
          (6) the term ``petition'' means a written request 
        submitted to the Secretary for the review of an action 
        (or inaction) of an Indian tribe that is claimed to be 
        in violation of the approved tribal leasing 
        regulations;
          (7) the term ``Secretary'' means the Secretary of the 
        Interior;
          (8) the term ``tribal regulations'' means regulations 
        enacted in accordance with applicable tribal law and 
        approved by the Secretary;
          (9) the term ``Indian tribe'' has the meaning given 
        such term in section 102 of the Federally Recognized 
        Indian Tribe List Act of 1994 (25 U.S.C. 479a); and
          (10) the term ``individually owned allotted land'' 
        means a parcel of land that--
                  (A)(i) is located within the jurisdiction of 
                an Indian tribe; or
                  (ii) is held in trust or restricted status by 
                the United States for the benefit of an Indian 
                tribe or a member of an Indian tribe; and
                  (B) is allotted to a member of an Indian 
                tribe.
  (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.
  (2) Paragraph (1) shall not apply to individually owned 
Navajo Indian allotted land.
  (3) The Secretary shall have the authority to approve or 
disapprove tribal regulations referred to under paragraph (1). 
The Secretary shall approve such tribal regulations if such 
regulations are consistent with the regulations of the 
Secretary under subsection (a), and any amendments thereto, and 
provide for an environmental review process. The Secretary 
shall review and approve or disapprove the regulations of the 
Navajo Nation within 120 days of the submission of such 
regulations to the Secretary. Any disapproval of such 
regulations by the Secretary shall be accompanied by written 
documentation that sets forth the basis for the disapproval. 
Such 120-day period may be extended by the Secretary after 
consultation with the Navajo Nation.
  (4) If the Navajo Nation has executed a lease pursuant to 
tribal regulations under paragraph (1), the Navajo Nation shall 
provide the Secretary with--
          (A) a copy of the lease and all amendments and 
        renewals thereto; and
          (B) in the case of regulations or a lease that 
        permits payment to be made directly to the Navajo 
        Nation, documentation of the lease payments sufficient 
        to enable the Secretary to discharge the trust 
        responsibility of the United States under paragraph 
        (5).
  (5) The United States shall not be liable for losses 
sustained by any party to a lease executed pursuant to tribal 
regulations under paragraph (1), including the Navajo Nation. 
Nothing in this paragraph shall be construed to diminish the 
authority of the Secretary to take appropriate actions, 
including the cancellation of a lease, in furtherance of the 
trust obligation of the United States to the Navajo Nation.
  (6)(A) An interested party may, after exhaustion of tribal 
remedies, submit, in a timely manner, a petition to the 
Secretary to review the compliance of the Navajo Nation with 
any regulations approved under this subsection. If upon such 
review the Secretary determines that the regulations were 
violated, the Secretary may take such action as may be 
necessary to remedy the violation, including rescinding the 
approval of the tribal regulations and reassuming 
responsibility for the approval of leases for Navajo Nation 
tribal trust lands.
  (B) If the Secretary seeks to remedy a violation described in 
subparagraph (A), the Secretary shall--
          (i) make a written determination with respect to the 
        regulations that have been violated;
          (ii) provide the Navajo Nation with a written notice 
        of the alleged violation together with such written 
        determination; and
          (iii) prior to the exercise of any remedy or the 
        rescission of the approval of the regulation involved 
        and the reassumption of the lease approval 
        responsibility, provide the Navajo Nation with a 
        hearing on the record and a reasonable opportunity to 
        cure the alleged violation.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    Tribal lands hold great potential for domestic energy 
production. Yet tribes often cannot harness the full economic 
development potential of their natural resources because of 
longstanding bureaucratic hurdles. H.R. 538 aims to address 
some of these hurdles by proposing a number of changes to 
existing law or agency practice, all purportedly aimed at 
fostering energy development on Indian lands. While we agree 
that development of tribal natural resources provides an 
opportunity for significant economic benefits in Indian 
country, H.R. 538 goes far beyond the reforms necessary to 
achieve tribal self-determination in energy development. H.R. 
538 contravenes existing environmental protections and 
eliminates the critical check of the judiciary on the exercise 
of power by other branches of government.
    H.R. 538 is flawed in three significant ways. First, H.R. 
538 overreaches by limiting informed decision-making at the 
federal level through misguided curtailment of the National 
Environmental Policy Act (NEPA). Section 4 of the bill would 
amend one of the Nation's bedrock environmental laws to limit 
review of and comment on proposed projects to members of the 
affected Indian tribe and other individuals residing within an 
undefined `affected area.' This limitation sevekely restricts 
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. Arbitrarily 
limiting such review and comment would prevent even other 
Indian tribes with cultural ties in these so-called affected 
areas from commenting on a proposed project.
    Furthermore, because ``affected area'' is undefined in the 
bill, uniform application of the term is doubtful and invites 
legal scrutiny by those individuals who may be negatively 
impacted by a proposed project but excluded from review and 
comment. Application 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. 
Notably, Section 4 is applicable to more than energy projects; 
it applies to any major project on Indian lands by an Indian 
tribe, including but not limited to, proposed mining contracts, 
proposed water development projects, construction of solid 
waste facilities, and even construction of tribal class III 
gaming facilities.
    Second, Section 5 of the bill weakens important legal 
devices for those seeking environmental justice. It prevents 
recovery of attorneys' fees in cases challenging energy 
projects, and makes a claimant who fails to succeed on the 
merits of a suit potentially liable to the defendant for 
attorneys' fees and costs. These requirements make it extremely 
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--to prevent or seek judicial redress 
for environmental harm caused by an energy project on Indian 
land. 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.
    Moreover, Section 5 applies to non-Indian land when a tribe 
partners with an energy company to develop natural resources 
anywhere in the United States. This troubling provision 
incentivizes energy companies to partner with tribes simply for 
the benefit of skirting NEPA and profiting from restricted 
judicial review, thus creating a significant loophole for 
virtually unregulated development.
    Lastly, Section 9 of the bill specifically prevents any 
fracking rule promulgated by the Department of the Interior 
from applying to Indian lands without the express consent of 
the owner. In practice, this provision would create an 
immediate regulatory void--a concern even the Majority has 
acknowledged because State laws that regulate hydraulic 
fracturing cannot be imposed on the tribe unless the tribe 
expressly waives sovereignty. Adequate protection of human 
health and the environment in hydraulic fracturing activities 
on tribal lands is therefore a serious concern when tribal 
owners do not consent.
    During Full Committee markup, Ranking Member Grijalva (D-
AZ) offered an amendment that would have provided a targeted 
fix to the unfortunate Carcieri v. Salazar decision. The 
amendment would clarify the Secretary of the Interior's 
authority to take land into trust for all federally recognized 
Indian tribes when the acquisitions are made for energy 
development purposes. Unfortunately, the amendment failed by a 
vote of 10-22. It has been six long years since the Carcieri v. 
Salazar decision cast a shadow over Indian Country, and--
despite much rhetoric from the majority--we have still neither 
heard nor voted on any legislation in this Congress that would 
remedy the situation. As the top priority for Indian Country, 
the Carcieri v. Salazar decision must be addressed.
    In sum, the judicial review limitations contained in H.R. 
538 are clearly intended to chill litigation to the detriment 
of bona fide claimants and undermine the real ``teeth'' of NEPA 
by making the availability of injunctive relief all but 
disappear. For these reasons, we strongly oppose H.R. 538, a 
bill that would prevent full application of NEPA, as well as 
keep legitimate claims from being brought by victims of 
environmental disasters simply because they lack financial 
resources.

                                   Raul M. Grijalva,
                                   Alan S. Lowenthal,
                                   Grace F. Napolitano,

                                  [all]