[House Report 115-993]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-993
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NATIVE AMERICAN ENERGY ACT
_______
October 23, 2018.--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. 210]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 210) to facilitate the development of energy on
Indian lands by reducing Federal regulations that impede tribal
development of Indian lands, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Native American Energy Act''.
SEC. 2. APPRAISALS.
(a) Amendment.--Title XXVI of the Energy Policy Act of 1992 (25
U.S.C. 3501 et seq.) is amended by adding at the end the following:
``SEC. 2607. APPRAISAL REFORMS.
``(a) Options to Indian Tribes.--With respect to a transaction
involving Indian land or the trust assets of an Indian tribe that
requires the approval of the Secretary, any appraisal relating to fair
market value required to be conducted under applicable law, regulation,
or policy may be completed by--
``(1) the Secretary;
``(2) the affected Indian tribe; or
``(3) a certified, third-party appraiser pursuant to a
contract with the Indian tribe.
``(b) Time Limit on Secretarial Review and Action.--Not later than 30
days after the date on which the Secretary receives an appraisal
conducted by or for an Indian tribe pursuant to paragraphs (2) or (3)
of subsection (a), the Secretary shall--
``(1) review the appraisal; and
``(2) provide to the Indian tribe a written notice of
approval or disapproval of the appraisal.
``(c) Failure of Secretary To Approve or Disapprove.--If, after 60
days, the Secretary has failed to approve or disapprove any appraisal
received, the appraisal shall be deemed approved.
``(d) Option to Indian Tribes To Waive Appraisal.--
``(1) An Indian tribe wishing to waive the requirements of
subsection (a), may do so after it has satisfied the
requirements of 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.''.
(b) Conforming Amendment.--The table of contents of the Energy Policy
Act of 1992 (42 U.S.C. 13201 note) is amended by adding at the end of
the items relating to title XXVI the following:
``Sec. 2607. Appraisal reforms.''.
SEC. 3. STANDARDIZATION.
As soon as practicable after the date of the enactment of this Act,
the Secretary of the Interior shall implement procedures to ensure that
each agency within the Department of the Interior that is involved in
the review, approval, and oversight of oil and gas activities on Indian
lands shall use a uniform system of reference numbers and tracking
systems for oil and gas wells.
SEC. 4. ENVIRONMENTAL REVIEWS OF MAJOR FEDERAL ACTIONS ON INDIAN LANDS.
Section 102 of the National Environmental Policy Act of 1969 (42
U.S.C. 4332) is amended by inserting ``(a) In General.--'' before the
first sentence, and by adding at the end the following:
``(b) Review of Major Federal Actions on Indian Lands.--
``(1) Review and comment.--
``(A) In general.--Except as provided in subparagraph
(B), the statement required under subsection (a)(2)(C)
for a major Federal action regarding an activity on
Indian lands of an Indian tribe shall only be available
for review and comment by--
``(i) Indian tribes in the affected area and
individual members of those tribes wherever
they reside;
``(ii) Other individuals who reside in the
affected area; and
``(iii) State and local governments within
the affected area.
``(B) Exception.--Subparagraph (A) shall not apply to
a statement for a major Federal action regarding an
activity on Indian lands of an Indian tribe related to
gaming under the Indian Gaming Regulatory Act.
``(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.''.
SEC. 5. JUDICIAL REVIEW.
(a) Time for Filing Complaint.--Any energy related action must be
filed not later than the end of the 60-day period beginning on the date
of the final agency action. Any energy related action not filed within
this time period shall be barred.
(b) District Court Venue and Deadline.--All energy related actions--
(1) shall be brought in the United States District Court for
the District of Columbia; and
(2) shall be resolved as expeditiously as possible, and in
any event not more than 180 days after such cause of action is
filed.
(c) Appellate Review.--An interlocutory order or final judgment,
decree or order of the district court in an energy related action may
be reviewed by the United States Court of Appeals for the District of
Columbia Circuit. The District of Columbia Circuit Court of Appeals
shall resolve such appeal as expeditiously as possible, and in any
event not more than 180 days after such interlocutory order or final
judgment, decree or order of the district court was issued.
(d) Limitation on Certain Payments.--Notwithstanding section 1304 of
title 31, United States Code, no award may be made under section 504 of
title 5, United States Code, or under section 2412 of title 28, United
States Code, and no amounts may be obligated or expended from the
Claims and Judgment Fund of the United States Treasury to pay any fees
or other expenses under such sections, to any person or party in an
energy related action.
(e) Legal Fees.--In any energy related action in which the plaintiff
does not ultimately prevail, the court shall award to the defendant
(including any intervenor-defendants), other than the United States,
fees and other expenses incurred by that party in connection with the
energy related action, unless the court finds that the position of the
plaintiff was substantially justified or that special circumstances
make an award unjust. Whether or not the position of the plaintiff was
substantially justified shall be determined on the basis of the
administrative record, as a whole, which is made in the energy related
action for which fees and other expenses are sought.
(f) Definitions.--For the purposes of this section, the following
definitions apply:
(1) Agency action.--The term ``agency action'' has the same
meaning given such term in section 551 of title 5, United
States Code.
(2) Indian land.--The term ``Indian Land'' has the same
meaning given such term in section 203(c)(3) of the Energy
Policy Act of 2005 (Public Law 109-58; 25 U.S.C. 3501),
including lands owned by Native Corporations under the Alaska
Native Claims Settlement Act (Public Law 92-203; 43 U.S.C.
1601).
(3) Energy related action.--The term ``energy related
action'' means a cause of action that--
(A) is filed on or after the effective date of this
Act; and
(B) seeks judicial review of a final agency action to
issue a permit, license, or other form of agency
permission allowing:
(i) any person or entity to conduct
activities on Indian Land, which activities
involve the exploration, development,
production or transportation of oil, gas, coal,
shale gas, oil shale, geothermal resources,
wind or solar resources, underground coal
gasification, biomass, or the generation of
electricity; or
(ii) any Indian Tribe, or any organization of
two or more entities, at least one of which is
an Indian tribe, to conduct activities
involving the exploration, development,
production or transportation of oil, gas, coal,
shale gas, oil shale, geothermal resources,
wind or solar resources, underground coal
gasification, biomass, or the generation of
electricity, regardless of where such
activities are undertaken.
(4) Ultimately prevail.--The phrase ``ultimately prevail''
means, in a final enforceable judgment, the court rules in the
party's favor on at least one cause of action which is an
underlying rationale for the preliminary injunction,
administrative stay, or other relief requested by the party,
and does not include circumstances where the final agency
action is modified or amended by the issuing agency unless such
modification or amendment is required pursuant to a final
enforceable judgment of the court or a court-ordered consent
decree.
SEC. 6. TRIBAL BIOMASS DEMONSTRATION PROJECT.
The Tribal Forest Protection Act of 2004 is amended by inserting
after section 2 (25 U.S.C. 3115a) the following:
``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.
``SEC. 4. TRIBAL FOREST MANAGEMENT DEMONSTRATION PROJECT.
``The Secretary of the Interior and the Secretary of Agriculture may
carry out demonstration projects by which federally recognized Indian
tribes or tribal organizations may contract to perform administrative,
management, and other functions of programs of the Tribal Forest
Protection Act of 2004 (25 U.S.C. 3115a et seq.) through contracts
entered into under the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.).''.
SEC. 7. TRIBAL RESOURCE MANAGEMENT PLANS.
Unless otherwise explicitly exempted by Federal law enacted after the
date of the enactment of this Act, any activity conducted or resources
harvested or produced pursuant to a tribal resource management plan or
an integrated resource management plan approved by the Secretary of the
Interior under the National Indian Forest Resources Management Act (25
U.S.C. 3101 et seq.) or the American Indian Agricultural Resource
Management Act (25 U.S.C. 3701 et seq.) shall be considered a
sustainable management practice for purposes of any Federal standard,
benefit, or requirement that requires a demonstration of such
sustainability.
SEC. 8. LEASES OF RESTRICTED LANDS FOR THE NAVAJO NATION.
Subsection (e)(1) of the first section of the Act of August 9, 1955
(25 U.S.C. 415(e)(1); commonly referred to as the ``Long-Term Leasing
Act''), is amended--
(1) by striking ``, except a lease for'' and inserting ``,
including leases for'';
(2) in subparagraph (A), by striking ``25'' the first place
it appears and all that follows and inserting ``99 years;'';
(3) in subparagraph (B), by striking the period and inserting
``; and''; and
(4) by adding at the end the following:
``(C) in the case of a lease for the exploration,
development, or extraction of mineral resources, including
geothermal resources, 25 years, except that any such lease may
include an option to renew for one additional term not to
exceed 25 years.''.
SEC. 9. NONAPPLICABILITY OF CERTAIN RULES.
No rule promulgated by the Department of the Interior regarding
hydraulic fracturing used in the development or production of oil or
gas resources shall have any effect on any land held in trust or
restricted status for the benefit of Indians except with the express
consent of the beneficiary on whose behalf such land is held in trust
or restricted status.
Purpose of the Bill
The purpose of H.R. 210 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
In the energy world, Indian tribes and individual Indian
landowners regularly encounter obstacles not encountered on
leases of private and State lands. In general, federal law
requires the approval of the Department of the Interior (DOI)
before a tribal lease with an energy developer is valid. For
example, under the Indian Land Mineral Leasing Act of 1982,\1\
a tribe or individual Indian may only lease their trust lands
for mineral development subject to the approval of the
Secretary of the Interior. Pursuant to this authority, DOI has
developed sprawling rules for the approval of leases of Indian
lands. The rules often trigger the National Environmental
Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq.) 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
meddle, interfere, delay, appeal, or sue to slow or stop
permitting of energy development on Indian lands.
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\1\25 U.S.C. 2101 et seq.
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In a specific example, the Acting Chairman for the Southern
Ute Indian Tribe in 2014 reported that the Bureau of Indian
Affairs' (BIA) review of some of its energy-related documents
took as long as eight years. As of April 30, 2014, the Tribe
had been waiting for at least five years for 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 official, had these rights-of-way applications been
approved in a timely manner, the Tribe would have received
revenue through various sources, including 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
lost revenue will 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 Tribe (113th Congress).
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The current federal regulatory scheme obstructs
historically impoverished tribes from fully realizing the huge
economic potential of developing their natural resources.
Because tribes with large energy resources tend to be 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 June 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 this report, GAO documented and described serious
shortcomings in DOI'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, 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\
Moreover, GAO noted that while BIA created a Realty Tracking
System to monitor leases of Indian lands, this system does not
collect oil and gas activities nor use a standard approach to
collect information.
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\5\Id. at 24.
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Despite the 2015 report from GAO and its work with federal
agencies responsible for fulfilling the management of the
development of Indian energy resources, GAO listed Indian
Energy on its biennial ``high risk'' list for waste, fraud and
abuse in March 2017. GAO stated, ``BIA has in recent years
continued to mismanage Indian energy resources held in trust,
thereby limiting opportunities for tribes and their members to
use those resources to create economic benefits and improve
their communities.''\6\
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\6\http://www.gao.gov/highrisk/
improving_federal_management_serve_tribes/why_did_study
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RECENT CHANGES IN FEDERAL INDIAN LAW CONCERNING ENERGY
The Energy Policy Act of 2005\7\ 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 an approved
TERA, a tribe could execute energy leases on its lands without
review and approval by BIA and without day-to-day supervision
of the lease by the government except for monitoring the
tribe's compliance with the TERA.
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\7\25 U.S.C. 3501 et seq.
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Even after a decade, no tribe has successfully entered into
a TERA with the Secretary. The 2017 GAO report cited a few
reasons for this failure, including: uncertainty about TERA
regulations; limited tribal capacity and costs associated with
assuming activities currently conducted by federal agencies;
and a complex application process.\8\
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\8\See GAO-15-502 at 32.
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ENERGY RESOURCES ON INDIAN LANDS
DOI holds 56 million acres of land in trust or restricted
status for the benefit of Indian tribes and individual Indians.
In Alaska, Alaska Native Corporations (ANCs) own 44 million
acres of fee land (not under the jurisdiction of DOI). The ANCs
obtained these lands in settlement of their aboriginal land
claims under the Alaska Native Claims Settlement Act of 1971
(ANCSA).\9\
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\9\43 U.S.C. 1617 et seq.
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Several Indian reservations contain large accumulations of
known and prospective mineral resources. According to the BIA,
in 2015, over 418,881 ownership certification transactions
formed the basis for monetary distributions in the amount of
$1.1 billion in mineral royalty payments and $210 million in
surface lease and related payments.\10\
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\10\Fiscal Year 2018 Budget Justification. Bureau of Indian Affairs
at IA-RES-10.
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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 and
Arctic Slope Regional Corporation own significant land
interests in the 1002 Area (coastal plain) of the Arctic
National Wildlife Refuge (ANWR). They plan to develop the
area's prospective and large oil and gas resources to advance
the economic, social, and cultural well-being of the Inupiat
Eskimo people who make up the majority of residents on the
North Slope of Alaska.\11\
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\11\file:///C:/Users/lpittman/Downloads/ASRC%20ANWR%20Brochure.pdf;
http://www.newsminer.com/opinion/community_perspectives/alaskans-say-
yes-to-drilling-in-anwr/article_a8f798da-a751-11e7-b12f-
7b6aecd5b9f9.html
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There are high wind and solar prospects on a number of
Indian reservations.\12\ In 2013, DOI issued a final rule\13\
revising surface (non-mineral) leasing of Indian trust lands,
including streamlining for approval of wind and solar projects.
Despite wind and solar industries' heavy subsidies by the
federal government, only one significant wind project is
generating power on tribal lands.\14\
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\12\https://www.geni.org/globalenergy/research/renewable-energy-on-
tribal-lands/Renewable-Energy-on-Tribal-Lands.pdf, at 3.
\13\25 C.F.R. Part 162.
\14\https://www.hcn.org/articles/federal-agency-shortcomings-
stalling-solar-wind-tribal-winds
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HYDRAULIC FRACTURING
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.\15\
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\15\http://www.navajotimes.com/politics/2013/0513/052313fra.php
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However, one of the major threats to oil and gas
development on Indian lands in recent years was the Bureau of
Land Management (BLM) 2015 rule to regulate hydraulic
fracturing (HF) on public lands.\16\ This rule deemed public
lands to include land held in trust for Indians. While 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 rule turned this fundamental tenet of
federal Indian policy on its head.
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\16\80 Fed. Reg. 16128.
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At 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.''\17\
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\17\Oversight Hearing before the Subcommittee on Indian and Alaska
Native Affairs (2012). Bureau of Land Management's Hydraulic Fracturing
Rule's Impacts on Indian Tribal Energy Development. Statement of T.J.
Snow, Chairman of the Blackfeet Nation. 112th Congress.
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At a 2015 hearing conducted by the Subcommittee on Energy
and Mineral Resources to study the impacts of BLM's final HF
rule,\18\ a tribal leader testified that the final rule fails
to separate tribal lands from public lands.\19\
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\18\Oversight Hearing before the Subcommittee on Energy and Mineral
Resources (2015). The Future of Hydraulic Fracturing on Federally
Managed Lands. 114th Congress. Serial No. 114-15.
\19\Id. at 4.
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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.
A federal judge and the Trump Administration responded to
the harmful Obama Administration HF rule. On June 21, 2016, the
U.S. District Court for Wyoming struck down the rule, holding
that BLM lacked Congressional authority to promulgate the
regulation, thus blocking the implementation of the rule.\20\
While the regulation was on hold, in March 2017, Department of
the Interior Secretary Ryan Zinke directed BLM to review the HF
rule. BLM subsequently published a proposed rule to rescind the
2015 HF rule, and in December 2017, BLM published a final rule
rescinding the HF rule because ``it imposes administrative
burdens and compliance costs that are not justified.''\21\
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\20\https://www.aogr.com/magazine/sneak-peek-preview/u.s.-district-
court-in-wyoming-rejects-blms-fracturing-rule
\21\https://www.gpo.gov/fdsys/pkg/FR-2017-12-29/pdf/2017-28211.pdf
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For now, the threat of the rule has been averted through
the federal courts and the Trump Administration's plans to
rescind the Obama Administration rule that has been harmful to
the interests of tribes with oil and gas resources. Because of
the potential for the rule to be proposed by a future
Administration, Congressional action to address the needs and
interests of Indian tribes is necessary.
PREVIOUS CONGRESSIONAL ACTIONS ON INDIAN ENERGY
In the 112th Congress, the Subcommittee on Indian and
Alaska Native Affairs held five\22\ Indian energy-related
hearings. In the 113th Congress, the Natural Resources
Committee reported H.R. 1548, the Native American Energy Act,
which was included as part of larger energy packages which
passed the House of Representatives.\23\
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\22\Oversight Hearing before the Subcommittee on Indian and Native
Alaska Affairs (2011). Tribal development of energy resources and the
creation of energy jobs on Indian lands. 112th Congress; Legislative
Hearing on H.R. 3975 before Subcommittee on Indian and Native Alaska
Affairs (2012). 112th Congress; Oversight Field Hearing before the
Subcommittee on Indian and Alaska Native Affairs (2012). Federal Laws
and Policies Affecting Energy Prices in Rural Alaska and their Effects
on Native Villages. 112th Congress; Oversight Hearing before the
Subcommittee on Indian and Alaska Native Affairs (2012). Bureau of Land
Management's Hydraulic Fracturing Rule's Impacts on Indian Tribal
Energy Development. 112th Congress.
\23\See H.R. 2, the American Energy Solutions for Lower Costs and
More American Jobs Act, 113th Congress (2014), and H.R. 1965, Federal
Lands Jobs and Energy Security Act of 2013, 113th Congress.
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In the 114th Congress, the House passed H.R. 538, a bill
identical to H.R. 210, with bipartisan support. H.R. 538 was
also included in the House-passed amendment to S. 2012, the
North American Energy Security and Infrastructure Act of 2016.
H.R. 210 addresses concerns various Native American leaders
have brought to the attention of the Committee on Natural
Resources in earlier hearings and consultations. The bill helps
tribes and Alaska Natives expedite and streamline the leasing
and development of energy and other natural resources in cases
where federal laws or policies are a hindrance to them.
Section-by-Section Analysis
Section 1. Short title
Section 1 sets forth the short title of the Act, the
``Native American Energy Act''.
Section 2. Appraisals
Section 2 improves the process for appraising land and
other assets held in trust by the United States for the benefit
of Indian tribes. Under this provision, an appraisal of land or
resources held in trust for the benefit of a tribe may, at the
option of the tribe, be conducted by the Secretary of the
Interior, the tribe, or a certified third-party appraiser. The
Secretary is required to review and act on any appraisal
submitted by a tribe or third-party appraiser within 30 days,
and after 60 days of inaction by the Secretary, such appraisal
is deemed approved.
Section 2 further provides, in the advancement of tribal
self-determination and economic freedom, for an Indian tribe to
have an option to waive any appraisal of its trust lands. For
any such waiver to be effective, the tribe must clearly waive
the necessity for an appraisal to be conducted and waive any
claims for damages it may have against the United States
resulting from the lack of an appraisal. The intent of this
section is to allow a tribe the same freedom as a private (non-
tribal) entity to negotiate a business deal (e.g., leasing of
its trust land) without the imposition of a federal mandate
that may inhibit the completion of the deal.
Section 3. Standardization
Section 3 directs the Secretary of the Interior to
standardize how the seven bureaus within DOI 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\24\ 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, any
other individual residing within the affected area, and State
and local governments 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.
---------------------------------------------------------------------------
\24\42 U.S.C. 4332.
---------------------------------------------------------------------------
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 a
lawsuit filed by an entity that expects not to prevail on the
merits of its claims, but to prevail through the imposition of
delays and costs inherent in litigation that stymie the timely
issuance of federal permits or approvals for Indian tribes or
ANCs to develop energy resources.
Specifically, 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. Under this section, 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, 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\ 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.
---------------------------------------------------------------------------
\25\Public Law 108-278.
---------------------------------------------------------------------------
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 fees to claim a certification that the entity's
forest plan is ``sustainable.''
Section 8. Leases of restricted lands for the Navajo Nation
Section 8 substantially enhances Navajo Nation leasing
authority. Specifically, section 8 amends the Long-Term Leasing
Act\26\ to grant the Navajo Nation authority to lease its trust
lands for mineral development without approval of the Secretary
of the Interior if such mineral leasing is conducted pursuant
to tribal regulations that have been approved by the Secretary.
Under current law, the Navajo Nation may lease its trust lands
for non-mineral purposes under the same conditions. Section 8
merely brings the tribe's mineral leasing power into parity
with its non-mineral leasing power. This provision advances
Congress's policy of promoting tribal self-determination as was
done with the enactment of the HEARTH Act.\27\
---------------------------------------------------------------------------
\26\25 U.S.C. 415.
\27\Public Law 112-151, the Helping Expedite and Advance
Responsible Tribal Homeownership Act (2012).
---------------------------------------------------------------------------
Section 8 would additionally permit the Navajo to lease its
trust land for business or agricultural purposes for a term of
up to 99 years (current law allows a term of up to 25 years
with an option to renew for up to 25 years), and for mineral
development for a term of up to 25 years with an option to
renew for one additional term of up to 25 years.
Section 9. Nonapplicability of certain rules
Section 9 provides that no rule promulgated by DOI
concerning hydraulic fracturing for the production of oil and
gas resources shall have any effect on Indian trust land
without the express consent of the Indian beneficiary.
Committee Action
H.R. 210 was introduced on January 3, 2017, by Congressman
Don Young (R-AK). The bill was referred to the Committee on
Natural Resources, and within the Committee to the
Subcommittees on Indian, Insular and Alaska Native Affairs and
Energy and Mineral Resources. On October 3, 2017, the Natural
Resources Committee met to consider the bill. The Subcommittees
were discharged by unanimous consent. Congressman Don Young
offered an amendment designated #1; it was adopted by voice
vote. No further amendments were offered and the bill, as
amended, was ordered favorably reported to the House of
Representatives, by a bipartisan roll call vote of 25 yeas and
15 nays on October 4, 2017, as follows:
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 and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 13, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 210, the Native
American Energy Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert Reese.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 210--Native American Energy Act
H.R. 210 would make several changes related to
environmental laws, energy programs, and the management of
mineral resources on Native American reservations. The bill
would:
Require the Department of the Interior (DOI)
to approve or deny any appraisal of energy projects
submitted by an Indian tribe within 30 days and allow
tribes to waive the requirement for appraisals under
specified circumstances;
Require DOI to enter into contracts for
energy demonstration projects using timber from federal
forests that is not marketable;
Authorize DOI and the Forest Service to
enter into contracts with tribes for forest management
demonstration projects; and
Prohibit the payment of attorneys' fees
under the Equal Access to Justice Act (EAJA) for
lawsuits regarding energy projects on tribal lands.
CBO estimates that changing the appraisal process and
authorizing contracts for demonstration projects would not have
a significant effect on spending subject to appropriation.
Because H.R. 210 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; therefore, pay-as-you-go procedures apply. CBO
estimates that any reduction in those payments under H.R. 210
would be insignificant--historically such payments have been
small. Enacting H.R. 210 would not affect revenues. The
provision affecting energy demonstration projects would not
affect direct spending because the affected timber is
nonmarketable and do not generate receipts to the government.
CBO estimates that enacting H.R. 210 would not increase net
direct spending or on-budget deficits in one or more of the
four consecutive 10-year periods beginning in 2028.
H.R. 210 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Robert Reese.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
2. 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. Section 2 requires the Secretary of
the Interior to develop regulations for implementing the
appraisal reforms in section 2. Section 4 requires the Chairman
of the Council on Environmental Quality to develop regulations
to implement environmental reviews of major federal actions on
Indian lands.
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
* * * * * * *
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) Review and comment.--
(A) In general.--Except as provided in
subparagraph (B), the statement required under
subsection (a)(2)(C) for a major Federal action
regarding an activity on Indian lands of an
Indian tribe shall only be available for review
and comment by--
(i) Indian tribes in the affected
area and individual members of those
tribes wherever they reside;
(ii) Other individuals who reside in
the affected area; and
(iii) State and local governments
within the affected area.
(B) Exception.--Subparagraph (A) shall not
apply to a statement for a major Federal action
regarding an activity on Indian lands of an
Indian tribe related to gaming under the Indian
Gaming Regulatory Act.
(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.
SEC. 4. TRIBAL FOREST MANAGEMENT DEMONSTRATION PROJECT.
The Secretary of the Interior and the Secretary of
Agriculture may carry out demonstration projects by which
federally recognized Indian tribes or tribal organizations may
contract to perform administrative, management, and other
functions of programs of the Tribal Forest Protection Act of
2004 (25 U.S.C. 3115a et seq.) through contracts entered into
under the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.).
----------
ACT OF AUGUST 9, 1955
AN ACT To authorize the leasing of restricted Indian lands for public,
religious, educational, recreational, residential, business, and other
purposes requiring the grant of long-term leases.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That (a) 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.
(f) Any contract, including a lease or construction contract,
affecting land within the Gila River Indian Community
Reservation may contain a provision for the binding arbitration
of disputes arising out of such contract. Such contracts shall
be considered within the meaning of ``commerce'' as defined and
subject to the provisions of section 1 of title 9, United
States Code. Any refusal to submit to arbitration pursuant to a
binding agreement for arbitration or the exercise of any right
conferred by title 9 to abide by the outcome of arbitration
pursuant to the provisions of chapter 1 of title 9, sections 1
through 14, United States Code, shall be deemed to be a civil
action arising under the Constitution, laws or treaties of the
United States within the meaning of section 1331 of title 28,
United States Code.
(g) Lease of Tribally-Owned Land by Assiniboine and Sioux
Tribes of the Fort Peck Reservation.--
(1) In general.--Notwithstanding subsection (a) and
any regulations under part 162 of title 25, Code of
Federal Regulations (or any successor regulation),
subject to paragraph (2), the Assiniboine and Sioux
Tribes of the Fort Peck Reservation may lease to the
Northern Border Pipeline Company tribally-owned land on
the Fort Peck Indian Reservation for 1 or more
interstate gas pipelines.
(2) Conditions.--A lease entered into under paragraph
(1)--
(A) shall commence during fiscal year 2011
for an initial term of 25 years;
(B) may be renewed for an additional term of
25 years; and
(C) shall specify in the terms of the lease
an annual rental rate--
(i) which rate shall be increased by
3 percent per year on a cumulative
basis for each 5-year period; and
(ii) the adjustment of which in
accordance with clause (i) shall be
considered to satisfy any review
requirement under part 162 of title 25,
Code of Federal Regulations (or any
successor regulation).
(h) Tribal Approval of Leases.--
(1) In general.--At the discretion of any Indian
tribe, any lease by the Indian tribe for the purposes
authorized under subsection (a) (including any
amendments to subsection (a)), except a lease 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 2
additional terms, each of which may not exceed
25 years; and
(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 regulations issued by
the Indian tribe.
(2) Allotted land.--Paragraph (1) shall not apply to
any lease of individually owned Indian allotted land.
(3) Authority of secretary over tribal regulations.--
(A) In general.--The Secretary shall have the
authority to approve or disapprove any tribal
regulations issued in accordance with paragraph
(1).
(B) Considerations for approval.--The
Secretary shall approve any tribal regulation
issued in accordance with paragraph (1), if the
tribal regulations--
(i) are consistent with any
regulations issued by the Secretary
under subsection (a) (including any
amendments to the subsection or
regulations); and
(ii) provide for an environmental
review process that includes--
(I) the identification and
evaluation of any significant
effects of the proposed action
on the environment; and
(II) a process for ensuring
that--
(aa) the public is
informed of, and has a
reasonable opportunity
to comment on, any
significant
environmental impacts
of the proposed action
identified by the
Indian tribe; and
(bb) the Indian tribe
provides responses to
relevant and
substantive public
comments on any such
impacts before the
Indian tribe approves
the lease.
(C) Technical assistance.--The Secretary may
provide technical assistance, upon request of
the Indian tribe, for development of a
regulatory environmental review process under
subparagraph (B)(ii).
(D) Indian self-determination act.--The
technical assistance to be provided by the
Secretary pursuant to subparagraph (C) may be
made available through contracts, grants, or
agreements entered into in accordance with, and
made available to entities eligible for, such
contracts, grants, or agreements under the
Indian Self-Determination Act (25 U.S.C. 450 et
seq.).
(4) Review process.--
(A) In general.--Not later than 120 days
after the date on which the tribal regulations
described in paragraph (1) are submitted to the
Secretary, the Secretary shall review and
approve or disapprove the regulations.
(B) Written documentation.--If the Secretary
disapproves the tribal regulations described in
paragraph (1), the Secretary shall include
written documentation with the disapproval
notification that describes the basis for the
disapproval.
(C) Extension.--The deadline described in
subparagraph (A) may be extended by the
Secretary, after consultation with the Indian
tribe.
(5) Federal environmental review.--Notwithstanding
paragraphs (3) and (4), if an Indian tribe carries out
a project or activity funded by a Federal agency, the
Indian tribe shall have the authority to rely on the
environmental review process of the applicable Federal
agency rather than any tribal environmental review
process under this subsection.
(6) Documentation.--If an Indian tribe executes a
lease pursuant to tribal regulations under paragraph
(1), the Indian tribe shall provide the Secretary
with--
(A) a copy of the lease, including any
amendments or renewals to the lease; and
(B) in the case of tribal regulations or a
lease that allows for lease payments to be made
directly to the Indian tribe, documentation of
the lease payments that are sufficient to
enable the Secretary to discharge the trust
responsibility of the United States under
paragraph (7).
(7) Trust responsibility.--
(A) In general.--The United States shall not
be liable for losses sustained by any party to
a lease executed pursuant to tribal regulations
under paragraph (1).
(B) Authority of secretary.--Pursuant to the
authority of the Secretary to fulfill the trust
obligation of the United States to the
applicable Indian tribe under Federal law
(including regulations), the Secretary may,
upon reasonable notice from the applicable
Indian tribe and at the discretion of the
Secretary, enforce the provisions of, or
cancel, any lease executed by the Indian tribe
under paragraph (1).
(8) Compliance.--
(A) In general.--An interested party, after
exhausting of any applicable tribal remedies,
may submit a petition to the Secretary, at such
time and in such form as the Secretary
determines to be appropriate, to review the
compliance of the applicable Indian tribe with
any tribal regulations approved by the
Secretary under this subsection.
(B) Violations.--If, after carrying out a
review under subparagraph (A), the Secretary
determines that the tribal regulations were
violated, the Secretary may take any action the
Secretary determines to be necessary to remedy
the violation, including rescinding the
approval of the tribal regulations and
reassuming responsibility for the approval of
leases of tribal trust lands.
(C) Documentation.--If the Secretary
determines that a violation of the tribal
regulations has occurred and a remedy is
necessary, the Secretary shall--
(i) make a written determination with
respect to the regulations that have
been violated;
(ii) provide the applicable Indian
tribe with a written notice of the
alleged violation together with such
written determination; and
(iii) prior to the exercise of any
remedy, the rescission of the approval
of the regulation involved, or the
reassumption of lease approval
responsibilities, provide the
applicable Indian tribe with--
(I) a hearing that is on the
record; and
(II) a reasonable opportunity
to cure the alleged violation.
(9) Savings clause.--Nothing in this subsection shall
affect subsection (e) or any tribal regulations issued
under that subsection.
* * * * * * *
DISSENTING VIEWS
While we agree that development of tribal natural resources
provides an opportunity for significant economic benefits in
Indian country, H.R. 210 goes far beyond the reforms necessary
to achieve tribal self-determination in energy development.
H.R. 210 contravenes existing environmental protections and
eliminates the critical check of the judiciary on the exercise
of power by other branches of government.
H.R. 210 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 severely
restricts public involvement in proposed federal projects that
may affect the environment, 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 to 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
activities, proposed water development projects, construction
of solid waste facilities, and even construction of tribal
class III gaming facilities.
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.
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.
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.
For these reasons, we strongly oppose H.R. 210, 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,
Ranking Member, Committee on
Natural Resources.
Darren Soto.
Jared Huffman.
Alan S. Lowenthal.
Grace F. Napolitano.
Donald S. Beyer.
A. Donald McEachin.
Nanette Diaz Barragan.
[all]