[House Report 114-276]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-276
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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.
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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.
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\8\Fiscal Year 2016 Budget Justification, Bureau of Indian Affairs,
IA-CED-8.
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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.
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\9\25 C.F.R. Part 162.
\10\https://www.hcn.org/articles/federal-agency-shortcomings-
stalling-solar-wind-tribal-winds
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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.
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\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.
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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.
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\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.
* * * * * * *
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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]