[Senate Report 115-84]
[From the U.S. Government Publishing Office]
Calendar No. 104
115th Congress } { Report
SENATE
1st Session } { 115-84
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AMENDING THE INDIAN TRIBAL ENERGY DEVELOPMENT AND SELF DETERMINATION
ACT OF 2005, AND FOR OTHER PURPOSES
_______
May 24, 2017.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 245]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 245) to amend the Indian Tribal Energy Development and
Self-Determination Act of 2005, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
PURPOSE
The purpose of S. 245 is to amend certain provisions of the
Energy Policy Act of 2005\1\ to further enhance the ability of
Indian tribes to exercise self-determination over the
development of energy resources located on tribal lands; to
establish tribal biomass demonstration projects; to improve,
facilitate, and make more effective the implementation of the
program in Indian Country under section 413(d) of the Energy
Conservation and Production Act\2\; and to otherwise facilitate
Indian tribal governments in their goals to develop both
renewable and non-renewable energy resources for the benefit of
current and future generations of Indian people.
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\1\Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594
(2005) (codified in scattered sections of Title 25 U.S.C., 26 U.S.C.,
and 42 U.S.C.).
\2\Pub. L. No. 94-385, Sec. 413(d) (codified at 42 U.S.C.
Sec. 6863(d)).
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NEED FOR LEGISLATION
For several years the Committee has received concerns from
Indian tribes that the many Federal laws governing the
development of tribal energy resources are complex and often
lead to significant cost, delay and uncertainty for all parties
of tribal energy transactions. These costs, delays, and
uncertainties tend to discourage development of tribal trust
energy resources and drive development investments to private
or non-tribal lands that are not subject to these same Federal
laws.
Title V of the Energy Policy Act of 2005\3\ was intended to
address these concerns by removing much of the bureaucracy and
shifting the approval requirements for these transactions from
the Secretary of the Interior to Indian tribes. However, the
implementation of Title V was more burdensome than Congress
intended.
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\3\Indian Tribal Energy Development and Self-Determination Act,
Title V of the Energy Policy Act of 2005, Pub. L. No. 109-58,
Sec. Sec. 501-506, 119 Stat. 763 (codified at 25 U.S.C. Sec. Sec. 3501-
3506).
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Generally, this bill is intended to provide direction and
clarity in implementing Title V as well as other purposes. The
bill would remove some of the disincentives to developing
tribal trust energy resources and assist Indian tribes
interested in pursuing the development of these resources
consistent with the policy of Indian self-determination.
BACKGROUND
Global energy demand is expected to increase by 37% by
2040, with demand increasing for several energy resources such
as oil, coal, natural gas, and renewables.\4\ In recent years,
energy supply increased to correspond with increases in demand.
Most notably, there had been a spectacular growth in ``light
tight oil'' production from low permeable shale formations.\5\
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\4\International Energy Agency, World Energy Outlook 2014,
Executive Summary, November 2014 at 1-2.
\5\International Energy Agency, World Energy Outlook 2013, November
2013 at 424.
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The primary location for light tight oil production in the
United States has been the Bakken Formation in North Dakota,
which is the largest known continuous oil accumulation in the
United States.\6\ In the heart of the Bakken formation lies the
Fort Berthold Indian Reservation, home to the Mandan, Hidatsa,
and Arikara tribes.
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\6\International Energy Agency, World Energy Outlook 2013, November
2013 at 475.
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Many other Indian reservations hold an untapped potential
wealth of energy resources.\7\ In a 2015 report, the Government
Accountability Office (GAO) indicated that, despite this
potential, energy development on Indian lands has not been as
robust as it has been on non-Indian lands.\8\
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\7\U.S. Gov't Accountability Office, GAO-15-502, Indian Energy
Development: Poor Management by BIA Has Hindered Energy Development on
Indian Lands 1 (2015).
\8\Id. at 2.
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When tasked with examining the barriers to energy
development on Indian lands, the GAO confirmed tribal concerns
in finding that such development is subject to a complex
regulatory framework and poor management by the governing
Federal agencies.\9\ These barriers have led to significant
delays in review and approvals of required agreements such as
leases, business agreements, or rights-of-ways.
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\9\Id.
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In turn, the delays in leasing and permitting for new
energy production sites were especially costly to Indian
tribes. Indian tribes lost the opportunity to participate in
energy development and revenues from the potential project.
According to the GAO, one tribe estimated that more than $95
million in possible fees, severance taxes, and royalties were
lost during one eight-year delay.\10\
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\10\Id.
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These impediments increase the need for improvements to the
tribal energy leasing process so that Indian tribes can compete
in the energy market. This bill, S. 245, would help level the
playing field for Indian tribes that can participate, if they
so choose, in the energy market in the United States. If S. 245
were enacted, Indian tribes would be able to lease and develop
their trust energy resources in a timely, responsible, and
profitable way.
Overview of Indian Energy Development--Leases and agreements under the
IMLA and IMDA
Historically, most energy development on Indian lands has
been carried out under the authority of the Indian Mineral
Leasing Act of 1938\11\ (IMLA) and its implementing
regulations\12\ or the Indian Mineral Development Act of
1982\13\ (IMDA) and its implementing regulations.\14\ Prior to
the enactment of the IMLA, minerals on Indian lands were
developed under a number of Federal statutes dating back to
1891.\15\
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\11\Act of May 11, 1938, 52 Stat. 347 (codified at 25 U.S.C.
Sec. Sec. 396a-396g).
\12\25 C.F.R. pt. 211.
\13\Indian Mineral Development Act of 1982, Pub. L. No. 97-382, 96
Stat. 1938 (codified at 25 U.S.C. Sec. Sec. 2101-2108).
\14\25 C.F.R. pt. 225.
\15\See, e.g., Act of February 28, 1891, 26 Stat. 795 (codified at
25 U.S.C. Sec. 397); Act of June 30, 1919, 41 Stat. 31 (codified at 25
U.S.C. Sec. 399); Act of September 20, 1922, ch. 347, 42 Stat. 857
(codified at 25 U.S.C. Sec. 400).
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The IMLA authorizes only mineral leases, whereas the IMDA
authorizes a ``joint venture, operating, production sharing,
service, managerial, lease or other agreement.''\16\ The IMDA
was specifically intended to provide Indian tribes both with a
greater role and with more flexibility in the mineral
development process than is possible under the IMLA, by
allowing the Indian tribes themselves to negotiate and
structure mineral agreements. The IMDA was a significant policy
step in furtherance of the broader Federal policy of Indian
self-determination.\17\
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\16\25 U.S.C. Sec. 2102(a).
\17\See S. Rep. No. 97-472, at 2 (1982). See generally Cohen's
Handbook of Federal Indian Law Sec. 17.03[2][a]-[b], at 1123-30 (Nell
Jessup Newton et al. eds., LexisNexis 2012) (1941).
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Despite the greater flexibility and increased tribal
involvement provided in the IMDA, the Secretary of the Interior
(Secretary) retains considerable control over the process of
finalizing any IMDA agreement. Most notably, the IMDA requires
the Secretary to review a proposed IMDA agreement between the
Indian tribe and a third party and determine whether it is in
the best interest of the Indian tribe in light of several
economic and non-economic factors.\18\ If the Secretary is not
satisfied that the proposed agreement meets the statutory test,
the Secretary may disapprove it.\19\
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\18\25 U.S.C. Sec. 2103(b).
\19\Id. Sec. 2103(a)-(b).
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The IMDA's implementing regulations also authorize the
Secretary to cancel agreements for a range of violations by an
operator\20\ and to impose a penalty of up to $1000 for each
day that a violation or non-compliance ``continues beyond the
time limits prescribed for corrective action.''\21\ Neither the
statute nor the regulations require the Secretary to consult
with the Indian tribe or obtain its consent before taking these
actions against an operator. In fact, it would appear that the
Secretary has the authority to cancel the agreement and fine an
operator even if the Indian tribe were to oppose these
measures.
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\20\25 C.F.R. Sec. 225.36.
\21\25 C.F.R. Sec. 225.37(a).
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Curiously, under the IMDA, the Secretary decides whether to
approve, disapprove, or cancel an agreement, and determines
whether an operator has violated an agreement and whether to
impose stiff penalties for doing so. Yet, the IMDA nevertheless
expressly exempts the United States from liability ``for losses
sustained by a tribe or individual Indian under such
agreement'' as long as the Secretary approved the agreement in
accordance with the Act and other applicable law.\22\
Therefore, the IMDA provides the Secretary with the ultimate
control over mineral development decisions, but at the same
time appears to provide that the United States cannot be held
accountable financially for those decisions as long as the
Secretary followed the law.
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\22\25 U.S.C. Sec. 2103(e). Note, however, the second proviso at
the end of this subsection: ``[N]othing in this Act shall absolve the
United States from any responsibility to Indians, including those which
derive from the trust relationship and from any treaties, Executive
orders, or agreement between the United States and any Indian tribe.''
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Costly delays due to burdensome Federal processes for energy
development on tribal lands
Approval of leases or agreements involving Indian lands by
the Secretary is an act of a Federal official that triggers the
environmental review process under the National Environmental
Policy Act (NEPA).\23\ The time needed for the Department of
the Interior to comply with Federal statutes and regulations
that apply specifically to Indian lands, such as the IMLA and
the IMDA and the implementing regulations, combined with the
time needed to comply with the NEPA often leads to
extraordinary delays in the approval of mineral leases and
agreements.
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\23\National Environmental Policy Act of 1969, Pub. L. No. 91-190,
83 Stat. 852 (1970) (codified at 42 U.S.C. Sec. 4321 et seq.). See
Davis v. Morton, 469 F.2d 593, 597 (10th Cir. 1972) (approval of long
term surface lease of Tesuque Pueblo's land requires review under
NEPA); Manygoats v. Kleppe, 558 F.2d 556, 561 (10th Cir. 1977)
(approval of an IMLA lease of tribal lands for uranium mining purposes
requires review under NEPA).
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The past legislative history of this bill is replete with
examples of delays due to the agency bureaucracy. Most notably,
at the Committee's legislative hearing on a prior bill, S.
2132, held on April 30, 2014, Chairman Howell of the Ute Indian
tribe of the Uintah and Ouray Reservation submitted written
testimony about the hindrances of Federal oversight and
regulations. In his testimony, Chairman Howell stated:
The Tribe takes an active role in the development of
its resources, however, despite our progress, the
Tribe's ability to fully benefit from its resources is
limited by the federal agencies overseeing oil and gas
development on the Reservation. For example, we need 10
times as many permits to be approved. Currently, about
48 Applications for Permits to Drill (APD) are approved
each year for oil and gas operations on the
Reservation. We estimate that 450 APDs will be needed
each year as we expand operations. As the oil and gas
companies who operate on the Tribe's Reservation often
tell the Tribe, the federal oil and gas permitting
process is the single biggest risk factor to operations
on the Reservation. In order for the Tribe to continue
to grow and expand our economy the federal permitting
process needs to be streamlined and improved.\24\
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\24\Legislative Hearing, to receive testimony on the following
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes, Before the S. Comm.
on Indian Affairs, 113th Cong. (2014) (testimony submitted from Gordon
Howell, Chairman, Business Committee for the Ute Indian Tribe of the
Uintah and Ouray Reservation).
More egregious results of bureaucratic delays were raised
at the same legislative hearing. Chairman Olguin of the
Southern Ute Tribe testified about a letter written to the
Regional Director of the Bureau of Indian Affairs in 2009
explaining the impacts of the bureaucratic delays. He stated in
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his written testimony (quoting the letter) the following:
[A]pproximately 24 Applications for Permit to Drill
(APDs) await BIA concurrence. Additionally,
approximately 81 pipeline [Rights-of-way] await
issuance by the BIA. Of the 81 pending ROWs, 11 were
approved in Tribal Council resolutions adopted in 2006,
44 were approved in Tribal Council resolutions adopted
in 2007, 22 were approved in Tribal Council resolutions
adopted in 2008, and 4 were approved in Tribal Council
resolutions adopted in 2009. . . . We estimate that
lost revenue attributable to severance taxes and
royalties alone exceeds $94,813,739. Significantly,
during the period of delay, prices for natural gas rose
to an historic high, but have now declined to
approximately one-third of that market value. Thus,
much of this money will never be recovered by the
Tribe.\25\
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\25\Id. (testimony by James Olguin, Acting Chairman, Southern Ute
Indian tribe).
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The Government Accountability Office Report
On June 8, 2015, the GAO issued its Report in response to a
request by Senator Barrasso in January, 2014.\26\ This Report
examined the barriers to energy development on Indian lands and
highlighted several barriers including poor management by the
Department of the Interior, Bureau of Indian Affairs. Most
notably, the GAO found that the BIA does not have the data
needed to verify ownership of natural resources or identify
where leases are in effect, nor does it have an adequate system
to track review and response times in approving leases or other
development-related transactions.\27\
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\26\U.S. Gov't Accountability Office, GAO-15-502, Indian Energy
Development: Poor Management by BIA Has Hindered Energy Development on
Indian Lands (2015).
\27\Id. at 18, 21.
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These deficiencies add to the other barriers identified by
the GAO (and echoed by tribal leaders over the past few years)
such as the complex regulatory framework. Taken together, these
barriers severely diminish, if not eliminate, the ability of
tribes to develop their resources. In fact, the GAO noted that
one private developer indicated it was nearly 65 percent more
costly to develop on Indian lands than non-Indian lands.\28\
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\28\Id. at 25.
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The TERA process in both the ITEDSDA and (as amended) in
this bill, S. 245, would serve to reduce much of the
bureaucratic delays. While it is encouraging that the BIA
generally agreed with most of the recommendations in the GAO
Report and has taken some steps to address the issues, the
Committee remains concerned that a fully developed plan of
action is not available to continue addressing the issues
identified in the Report.
The Committee is indeed troubled that tribes (and
individual tribal members) are missing opportunities to develop
resources or receive revenues from these resources. The
Committee intends to continue working with the Administration
to determine whether additional legislative action is needed to
assist in addressing these issues.
Title V of the Energy Policy Act of 2005
Title V of the Energy Policy Act of 2005, the Indian Tribal
Energy Development and Self-Determination Act\29\ (ITEDSDA),
created a new, alternative process for Indian tribes to
negotiate and approve energy-related agreements and rights-of-
way on tribal trust and restricted lands.\30\ Commonly referred
to as the ``TERA process,'' section 3504 of the ITEDSDA
authorizes ``tribal energy resource agreements'' (TERA or
TERAs) between an Indian tribe and the Secretary of the
Interior.\31\ When operating under a TERA, an Indian tribe can
enter into leases, business agreements, and rights-of-way
without any further approval of the Secretary.
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\29\Indian Tribal Energy Development and Self-Determination Act,
Title V of the Energy Policy Act of 2005, Pub. L. No. 109-58,
Sec. Sec. 501-506, 119 Stat. 763 (codified at 25 U.S.C. Sec. Sec. 3501-
3506).
\30\25 U.S.C. Sec. 3504.
\31\25 U.S.C. Sec. 3504(e).
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Legislative history of the TERA
Past Committee Reports provide an extensive legislative
history of predecessor bills and elaborate on the development
of and debate on those predecessor bills which have led to this
bill.\32\ There are particular provisions of the ITEDSDA
discussed in those Reports that are of notable significance for
this bill, S. 245.
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\32\S. 2132, 113th Cong (2014).
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The ITEDSDA was enacted in the 109th Congress, but was
largely developed during the 108th, having originated from two
separate Indian energy bills. One of these bills, S. 522, was
introduced by Senator Ben Nighthorse Campbell (then Chairman of
the Committee), and the other, S. 424, by Senator Jeff Bingaman
(then ranking member of the Committee on Energy and Natural
Resources). The Committee held a hearing on the two bills on
March 19, 2003.\33\
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\33\Tribal Energy Self-Sufficiency Act and the Native American
Energy and Self-Determination Act: Hearing on S. 424 and S. 522 Before
the S. Comm. on Indian Affairs, 108th Cong. (2003).
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While there were a number of significant differences
between the two bills, there were also key similarities in both
bills relating to Secretarial approvals of energy-related
transactions and rights-of-ways and to waivers of liability.
Both bills would have authorized Indian tribes to grant rights-
of-way to third parties to serve energy-related facilities
located on tribal lands without Secretarial approval if done
pursuant to tribal regulations approved by the Secretary.
Both bills included provisions that would authorize energy-
related transactions between Indian tribes and third parties
without approval by the Secretary of the Interior if the
transactions were carried out in accordance with tribal
regulations that had been previously approved by the
Secretary.\34\ Secretarial approval for these types of
transactions would have been otherwise required under the IMLA,
IMDA, or, in cases of energy-related surface uses (for example,
wind or solar energy projects), 25 U.S.C. Sec. 415.
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\34\Section 103(b) of S. 424 would allow 30-year leases of tribal
land for siting ``electrical generation, transmission, or
distribution'' facilities (such as coal-fired power plants) or
facilities that ``refine or otherwise process renewable or non-
renewable resources'' (such as oil refineries) developed on tribal
land. S. 522 would allow 30-year leases of tribal land for similar
purposes as those authorized in S. 424 but also for ``exploration for,
extraction of, processing of, or other development of energy
resources'' (i.e., oil, gas, or coal development and production). The
model for this feature of S. 424 and S. 522--authorizing leases of
tribal land without Secretarial approval if done pursuant to tribal
regulations that had been approved by the Secretary--was the Navajo
Nation Trust Land Leasing Act of 2000, which was enacted as part of the
Omnibus Indian Advancement Act. See Title XII of Pub. L. No. 106-568,
114 Stat. 2933 (2000).
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Both S. 424 and S. 522 included liability waiver clauses
that would protect the United States from claims arising from
losses sustained as a result of leases entered into pursuant to
the authority under the bills. Although worded somewhat
differently, the waivers in the two bills were fairly broad in
scope and similar in effect.\35\
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\35\The liability waiver clauses in S. 424 and S. 522 are similar
to the liability waiver provision in the IMDA, 25 U.S.C. Sec. 2103(e).
See supra note 21 and accompanying text.
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The Committee staff eventually produced a revised version
of S. 522 that combined many provisions from that bill with
provisions in S. 424, including the provisions that allowed
Indian tribes to enter into energy-related leases, agreements,
and rights-of-way without the Secretary's approval. These
provisions were modified in several respects--in particular by
authorizing a ``tribal energy resource agreement'' (TERA)
between the Indian tribe and the Secretary in lieu of ``tribal
regulations'' approved by the Secretary, so that leases,
agreements, and rights-of-way would not require Secretarial
approval if entered into pursuant to an approved TERA.\36\
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\36\See note 56, infra, regarding the third-party petitioning
process for some of the reasons a Secretary-Tribal agreement (i.e., the
TERA) was used in lieu of tribal regulations.
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This revised version of the two bills was ultimately
included as Title III of S. 1005, the Energy Policy Act of
2003, as reported by the Committee on Energy and Natural
Resources during the 108th Congress.\37\ None of the Senate or
House bills addressing comprehensive energy policy were enacted
into law in the 108th Congress, including S. 1005.\38\
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\37\See S. Rep. No. 108-43, at 29-36.
\38\See also S. 14; H.R. 6; H.R. 238; H.R. 1531; H.R. 1644.
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In the 109th Congress, the Energy Policy Act of 2005 was
signed into law on August 8, 2005. The Act included, with some
modifications, the Indian energy title and the TERA process
that was part of S. 1005 from the previous Congress.\39\
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\39\See Energy Policy Act of 2005, Pub. L. No. 109-58, Title V, 119
Stat. 594 (2005). On March 10, 2008, the Department adopted regulations
implementing the TERA provisions of the Energy Policy Act of 2005. See
Tribal Energy Resource Agreements Under the Indian Tribal Energy
Development and Self-Determination Act, 73 Fed. Reg. 12821 (Mar. 10,
2008) (codified at 25 C.F.R. pt. 224).
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Key provisions of the TERA process under current law
The following is a summary of the key provisions of the
TERA process in the ITEDSDA.\40\
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\40\The TERA process of the ITEDSDA is set forth in 25 U.S.C. 3504
but uses some terms defined in Sec. 3501.
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Tribal trust lands. The TERA provisions of the ITEDSDA only
apply to ``tribal land'' as defined in 25 U.S.C. Sec. 3501(12).
Tribal land means trust or restricted land of an Indian tribe
(i.e., not individual Indian trust or restricted land or tribal
fee land). While the term ``Indian tribe'' includes Alaska
Native corporations for many purposes of the ITEDSDA, ``Indian
tribe'' does not include those corporations for purposes of the
TERA provisions of section 3504.
Tribal discretion. The TERA process does not automatically
apply to the tribal land of an Indian tribe. Whether to pursue
a TERA is a decision that the Indian tribe makes in its own
discretion.
Kinds of agreements authorized. Once a TERA has been
approved by the Secretary, the Indian tribe may, without
further approval of the Secretary, enter into energy leases,
business agreements, and, for certain energy-related purposes,
rights-of-way.\41\
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\41\25 U.S.C. Sec. 3504(a)-(b) imposes limitations on the duration
of the term (30 years for most leases and business agreements and for
rights-of-way and, in the case of oil and gas leases, ``10 years and as
long thereafter as oil or gas is produced in paying quantities'').
However, Indian tribes may renew leases, business agreements, and
rights-of-way under Sec. 3504(c).
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Scope of TERA. A TERA may, at the Indian tribe's option,
address ``all or a part'' of its energy resources, whether
renewable or nonrenewable.\42\ Conceivably, an Indian tribe
would also be free to include language in the TERA that would
limit its application to certain designated geographic areas
within its tribal lands.
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\42\See 25 C.F.R. Sec. 224.30 (defining ``Energy Resources'' as
``including, but not limited to, natural gas, oil, uranium, coal,
nuclear, wind, solar, geothermal, biomass, and hydrologic resources'').
25 U.S.C. Sec. 3504(a) itself expressly mentions ``energy mineral
resources,'' ``electric generation, transmission, or distribution''
facilities, and oil and gas resources.
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Approval of the TERA by the Secretary. The tribal authority
to approve leases, business agreements, and rights-of-way
without Secretarial approval requires that the Indian tribe
have a TERA in place that has been approved by the
Secretary.\43\
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\43\25 U.S.C. Sec. 3504(d).
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Process for obtaining an approved TERA. The following are
the key steps in the process for obtaining an approved TERA
under current law.\44\
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\44\The regulations at 25 C.F.R. Sec. 224.50-224.68 establish the
process in considerably more detail than the statute.
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(i) The tribe must submit a proposed TERA to the
Secretary.\45\
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\45\25 U.S.C. Sec. 3504(e)(1).
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(ii) The Secretary has 270 days after receiving a
TERA within which to approve or disapprove the proposed
TERA.\46\
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\46\25 U.S.C. Sec. 3504(e)(2)(A).
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(iii) The Secretary must provide notice and
opportunity for public comment on the proposed TERA.
However, the environmental review of the proposed TERA
``shall be limited to activities specified in the
provisions of the TERA.''\47\
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\47\25 U.S.C. Sec. 3504(e)(3); 25 C.F.R. Sec. 224.70.
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(iv) The Secretary ``shall approve''\48\ a proposed
TERA if (1) the Indian tribe has demonstrated its
capacity to regulate energy development; (2) the TERA
includes provisions requiring a periodic review and
evaluation of the tribe's performance under the TERA
and, if the Secretary finds ``imminent jeopardy'' to a
physical trust asset, allowing the Secretary to take
protective measures, including reassumption; and (3)
the TERA includes the 16 mandatory clauses or
provisions itemized in section 3504(e)(2)(B)(iii)\49\,
one of which is the environmental review process
required under section 3504(e)(2)(C).
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\48\25 U.S.C. Sec. 3504(e)(2)(B).
\49\See also 25 C.F.R. Sec. 224.63.
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(v) The Secretary must notify the Indian tribe in
writing of a disapproval decision within 10 days of the
decision, stating the basis for disapproval and
identifying the changes or other actions that are
required to address the Secretary's concerns and
providing the Indian tribe with an opportunity to
revise and re-submit the TERA.\50\
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\50\25 U.S.C. Sec. 3504(e)(4); 25 C.F.R. Sec. 224.75. Under the
regulations, the Indian tribe has 45 days (or such longer time as the
tribe and the Secretary may agree) after receiving a notice of
disapproval to resubmit a revised TERA. 25 C.F.R. Sec. 224.76.
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(vi) The Secretary ``shall approve'' the revised TERA
if it meets the same 3 criteria set forth in paragraph
(iv), above, applicable to the original version of the
TERA.\51\ The Secretary has only 60 days within which
to approve or disapprove a revised TERA.\52\
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\51\25 U.S.C. Sec. 3504(e)(2).
\52\Id.; 25 C.F.R. Sec. 224.76. Under the regulations, a
disapproval of a revised TERA is a ``final agency action'' and subject
to judicial review. 25 C.F.R. Sec. 224.77. Under the regulations, only
the Indian tribe has standing to seek judicial review of a decision to
disapprove a TERA or a revised TERA. 25 C.F.R. Sec. 224.77.
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Post-approval/TERA implementation matters. There are a
number of tasks, issues, and considerations addressed in
section 3504 that arise after a TERA has been approved. The
following are among the more significant:
(i) The Secretary must conduct a periodic review and
evaluation of the Indian tribe's performance under an
approved TERA. (See paragraph 7(iv)(2) above.) The
review must be conducted annually unless, after the
third annual review, the Indian tribe and the Secretary
agree to amend the TERA to allow biannual reviews.\53\
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\53\25 U.S.C. Sec. 3504(e)(2)(D)-(E).
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(ii) A copy of each lease, business agreement or
right-of-way executed by the Indian tribe pursuant to
its TERA must be delivered to the Secretary; the lease,
agreement or right-of-way is not effective until that
occurs.\54\ If the TERA authorizes ``direct payment''
leases and agreements, the Indian tribe must furnish
the Secretary with sufficient information to discharge
the Secretary's trust responsibility to enforce the
terms of the lease or agreement and protect the rights
of the tribe.\55\
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\54\25 U.S.C. Sec. 3504(e)(2)(B)(iii)(XIII)-(5)(A); 25 C.F.R.
Sec. 224.83(b).
\55\25 U.S.C. Sec. 3504(e)(5)(B); 25 C.F.R. Sec. 224.63(k).
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(iii) The ITEDSDA allows third parties with standing
to petition the Secretary if they believe the Indian
tribe is not complying with its own TERA. To have
standing to invoke this process, the third party must
be an ``interested person . . . [who] has demonstrated
that an interest of the person has sustained, or will
sustain, an adverse environmental impact as a result of
the failure of the Indian tribe to comply'' with its
TERA.\56\
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\56\25 U.S.C. Sec. 3504(e)(7)(A)-(B); 25 C.F.R. Sec. 224.100-
224.101 (emphasis added). As discussed supra at note 34 and in the
accompanying text, the ITEDSDA used TERAs in lieu of tribal regulations
approved by the Secretary, as in the case of the Navajo Nation Trust
Land Leasing Act of 2000 (25 U.S.C. Sec. 415(e)) and the Helping
Expedite and Advance Responsible Tribal Home Ownership Act of 2012
(Pub. L. No. 112-151, 126 Stat. 1150 [hereinafter HEARTH Act],
providing similar authority for all Indian tribes to enter into surface
leases without the Secretary's approval if done pursuant to tribal
regulations that had been approved by the Secretary. Under the TERA
process, a third-party petitioner must complain that that the Indian
tribe has violated an agreement (i.e., a TERA) entered into between the
United States and the Indian tribe. See 25 U.S.C. Sec. 3504(e)(7)(A)-
(B); 25 C.F.R. Sec. 224.100-224.101. The Indian canons of construction
dictate that treaties and agreements between the United States and
Indian tribes must be liberally construed in favor of the tribe;
therefore, TERAs should be construed in favor of the tribe when the
Secretary is entertaining a third-party petition. See Worcester v.
Georgia, 31 U.S. 515, 552-53, 582 (1832); Choate v. Trapp, 224 U.S.
665, 675 (1912); and County of Oneida v. Oneida Indian Nation, 470 U.S.
226, 147 (1985). Further, Sec. 3504(e)(6) requires the Secretary to
carry out the section ``in good faith and in the best interests of the
Indian tribes.'' See also 25 C.F.R. Sec. 224.40.
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Accordingly, the petitioning process is not available
as an avenue for persons to air generalized grievances
over the Indian tribe's activities under the TERA.
Further, before a petition may be filed with the
Secretary, the ``interested person'' must first exhaust
all applicable tribal remedies, if any.\57\ The
regulations set forth the petitioning process in detail
and provide the Indian tribe with significant
opportunities to deny, address, or otherwise resolve
the allegations. If, in the end, the Secretary
determines that the tribe is in violation of the TERA,
the Secretary must take ``such action as the Secretary
determines to be necessary to ensure compliance'' with
the TERA, including suspending activities under a
lease, agreement, or right-of-way or rescinding
approval of all or part of the TERA.\58\
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\57\25 U.S.C. Sec. 3504(e)(7)(B); 25 C.F.R. Sec. 224.100.
\58\25 U.S.C. Sec. 3504(e)(7)(D)(iii); 25 C.F.R. Sec. 224.120.
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(iv) An Indian tribe with an approved TERA may
rescind it in its own discretion.\59\
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\59\25 U.S.C. Sec. 3504(e)(8)(B); 25 C.F.R. Sec. 224.170-224.175.
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(v) Like the IMDA, the Navajo Nation Trust Land
Leasing Act, and, the HEARTH Act, the TERA provisions
of the ITEDSDA include a liability waiver clause\60\
that protects the United States. However, the liability
waiver provision in ITEDSDA is intended to be narrower
than the corresponding clauses in those other three
acts. The ITEDSDA waiver protects the United States
only from liability for those matters over which the
Secretary has no control--namely, from losses resulting
from the ``negotiated terms'' of leases, business
agreements, and rights-of-way.\61\ ``Negotiated term''
is defined for purposes of this clause as ``any term or
provision that is negotiated by an Indian tribe and any
other party to a lease, business agreement, or right-
of-way entered into pursuant to an approved'' TERA.\62\
The clause would not protect the United States from
losses resulting from the Secretary's own failure to
carry out obligations imposed on the Secretary under
the ITEDSDA--for example, from failure to conduct a
periodic review and evaluation or from a failure to
protect the tribe's interests as a result of a breach
of a lease or business agreement.\63\
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\60\25 U.S.C. Sec. 3504(e)(6)(D)(ii).
\61\25 U.S.C. Sec. 3504(e)(6)(D)(i).
\62\25 U.S.C. Sec. 3504(e)(6)(D)(ii).
\63\Nor would the clause protect the United States from liability
for losses resulting from a lease, agreement, or right-of-way that was
entered into by the Indian tribe and a third party but that was not
authorized under the terms of the tribe's TERA. For instance, as noted
above, the TERA might only authorize development of a specific kind of
energy resource, such as wind energy. If the Indian tribe proceeds to
enter into a solar project agreement or an oil and gas or coal lease,
and provides a copy of the lease to the Secretary pursuant to 25 C.F.R.
Sec. 224.83(b), it seems unlikely the United States could argue
successfully that any losses resulted from the ``negotiated terms'' of
a lease entered into ``pursuant to an approved tribal energy resource
agreement.''
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Tribal concerns with the TERA process under current law.
During the listening sessions before the introduction of prior
bills and subsequently, tribal representatives expressed
concerns about certain aspects of the TERA process under
current law. These concerns were, by and large, the same
concerns discussed in two law review articles about the
ITEDSDA, one by Professor Judith V. Royster\64\ and the other
by Benjamin J. Fosland.\65\
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\64\Judith V. Royster, Practical Sovereignty, Political
Sovereignty, and the Indian Tribal Energy Development and Self-
Determination Act, 12 Lewis & Clark L. Rev. 1065 (2008).
\65\Benjamin J. Fosland, A Case of Not-So-Fatal Flaws: Re-
Evaluating the Indian Tribal Energy and Self-Determination Act, 48
Idaho L. Rev. 447 (2012).
---------------------------------------------------------------------------
In her article on the ITEDSDA, Professor Royster identifies
and discusses four areas of concern raised by tribal
representatives regarding the TERA process.\66\ In his article,
Benjamin J. Fosland addresses the same basic areas of concern
but in three broad categories:
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\66\These are (1) not all tribal trust resources are covered by the
TERA provisions of the ITEDSDA, including non-energy minerals like
clay, sand and gravel; (2) lack of access to financial, technical, and
scientific resources to carry out the TERA; (3) the prospect of public
involvement in tribal decision-making (including during the Secretary's
review of a proposed TERA, the tribal environmental review process
required to be covered by a TERA under the ITEDSDA, and the process of
``interested party'' petitions); and (4) implications for the Federal
trust responsibility. See Royster, supra note 64 at 1087-1101. Some of
these concerns were echoed by tribal representatives to Committee staff
prior to and after the introduction of the bill. The comment most often
heard was that the ITEDSDA does not include financial assistance for
Indian tribes that enter into TERA. The trust responsibility concern
was mentioned but less prominently, perhaps reflecting a growing
awareness among Indian tribes that the liability waiver in the ITEDSDA
is narrower than that in the IMDA and that the ITEDSDA requires
considerable involvement of the Secretary in protecting the tribal
interest notwithstanding the approval of a TERA.
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(1) many Indian tribes ``lack the resources to make
the resource agreement system feasible';
(2) the requirement of public comment in the tribe's
decision-making is anathema to tribal sovereignty and
self-government; and
(3) the Federal government is relieved of the trust
responsibility after a tribe enters into a TERA.\67\
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\67\Fosland, supra note 65 at 449.
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He concludes that all three criticisms of the ITEDSDA ``are
largely unwarranted.'' These concerns and the professors'
analyses are discussed in significant detail in prior Committee
Reports.\68\ However, certain key points are reiterated herein.
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\68\S. Rep. No. 113-224 (2014); S. Rep. No. 112-263 (2012).
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Broad tribal support\69\ for the HEARTH Act\70\ passed in
2012 suggests that, whatever the concerns over a statutory
requirement of public input in a tribe's energy development
process may have been when the ITEDSDA was adopted in the 109th
Congress, those concerns appear to have diminished somewhat in
the intervening years in light of the fact that the HEARTH Act
has similar requirements for public involvement.\71\ The same
applies to concerns over the ``interested party'' challenges
authorized in the ITEDSDA. The HEARTH Act, which is similar to
the TERA process, authorizes interested parties to petition the
Secretary and complain that an Indian tribe is violating its
own leasing regulations.\72\
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\69\See S. 703, the Helping Expedite and Advance Responsible Tribal
Homeownership Act of 2011, Hearing Before S. Comm. on Indian Affairs,
112th Cong. 64 (2011) (statement of Cheryl A. Causley, Chairwoman,
National American Indian Housing Council); H.R. 205, the HEARTH Act of
2011: Hearing Before the Subcomm. on Indian and Alaska Native Affairs
of the H. Natural Resources Comm., 112th Cong. 20-21 (2011) (statement
of Floyd Tortalita, Vice-Chairman, National American Indian Housing
Council); S. 703, the Helping Expedite and Advance Responsible Tribal
Homeownership Act of 2011: Hearing Before S. Comm. on Indian Affairs,
112th Cong. 59 (2011) (statement of Robert Tippeconnie, Southern Plains
Area Vice President, National Congress of American Indians).
\70\Pub. L. No. 112-151, 126 Stat. 1150. Section 2 of the HEARTH
Act amends 25 U.S.C. Sec. 415 by adding at the end a new subsection
(h), authorizing tribal leasing of surface tribal trust lands without
approval of the Secretary if done pursuant to tribal regulations that
have been approved by the Secretary. The HEARTH Act is essentially the
same authority as provided in the Navajo Nation Trust Land Leasing Act
of 2000 (which is set forth in subsection (e) of section 415), except
that it is available for all Indian tribes with tribal trust lands.
\71\Id.
\72\Id.
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In regard to concerns over the ITEDSDA and the trust
responsibility, Professor Royster points out that ``one
significant difference between the IMDA and the ITEDSDA . . .
[is that] under the IMDA, the Secretary approves or disapproves
each specific agreement for mineral development . . . [and] is
bound not only by the vague best interest of the Indian tribe'
standard, but is instructed to consider such factors as
potential economic return, financial effects on the tribe,
marketability of the minerals, and environmental, social, and
cultural effects on the tribe.''\73\
---------------------------------------------------------------------------
\73\Royster, supra note 64 at 1099-1100.
---------------------------------------------------------------------------
She concludes that, while ``failure to consider or
adequately account for specified factors might subject the
government to damages for breach of trust,'' relying on ``the
good faith of the government can be a dangerous thing'' given
the outcome of United States v. Navajo Nation\74\ and that
``tribal trust in the government may, and should be, a thing of
the past. . . . Tribes need, as a practical matter if nothing
else, to look out for their own interests.''\75\ Again, despite
the fact that the recently enacted HEARTH Act has a very
explicit and more expansive direct liability waiver clause,\76\
the Indian tribes vigorously supported the adoption of the Act
in 2012, suggesting that many tribes have reached some level of
comfort with the implications of these clauses.
---------------------------------------------------------------------------
\74\537 U.S. 488 (2003).
\75\Royster, supra note 64 at 1100-1101. However, to impose
liability on the government, a court would have to find a way around
the express waiver in 25 U.S.C. Sec. 2103(e).
\76\``The United States shall not be liable for losses sustained by
any party to a lease executed pursuant to tribal regulations under
paragraph (1).'' HEARTH Act Sec. 2.
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At the legislative hearing held by the Committee on S. 2132
during the 113th Congress, the Administration expressed
concerns about the waiver of liability provisions in the bill
and recommended replacing the waiver of liability provisions
that apply to tribal energy resource agreements with the waiver
of liability provision in the HEARTH Act.\77\ The
Administration testified the waiver of liability under a TERA
and under the HEARTH Act is ``slightly different language to
reach the same basic meaning'' and that it ``doesn't accomplish
much difference.''\78\
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\77\Legislative Hearing, to receive testimony on the following
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes, Before the S. Comm.
on Indian Affairs, 113th Cong. (2014) (testimony by Kevin Washburn,
Assistant Secretary-Indian Affairs, Bureau of Indian Affairs, U.S.
Department of the Interior).
\78\Id.
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The Committee strongly disagrees. The HEARTH Act has a
liability waiver that is broader than the TERA liability
waiver. The HEARTH Act absolves the United States of liability
``for losses sustained by any party to a lease executed
pursuant to tribal regulations'' approved by the Secretary
under the HEARTH Act.\79\ In contrast, for TERAs, under both
the ITEDSDA and this bill, the United States is only absolved
of liability ``for any negotiated term of a lease, business
agreement, or right-of-way executed pursuant . . . to a tribal
energy resource agreement.''\80\
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\79\Pub. L. No. 112-151, 126 Stat. 1150 (codified at 25 U.S.C.
Sec. 415(h)(7)(A)).
\80\25 U.S.C. Sec. 3504(e)(6)(D).
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When an Indian tribe is operating under a TERA, the United
States is still liable for any actions or losses that are not a
negotiated term, whereas when a tribe is operating under
regulations approved by the Secretary under the HEARTH Act the
liability of the United States is much more limited.\81\he
Committee is concerned that adopting the waiver of liability in
the HEARTH Act could compromise the waiver of liability
applicable to TERAs that was carefully examined, negotiated and
enacted in Title V of the Energy Policy Act of 2005.\82\ For
these reasons, the Committee will maintain the liability
language contained in ITEDSDA and as clarified in S. 245 (and
S. 2132 from the 113th Congress).
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\81\``Negotiated term is defined as ``any term or provision that is
negotiated by an Indian tribe and any other party to a lease, business
agreement, or right-of-way entered into pursuant to an approved tribal
energy resource agreement.'' 25 U.S.C. Sec. 3504(e)(6)(D)(i).
\82\Energy Policy Act of 2005, Pub. L. No. 109-58, Title V, 119
Stat. 594 (2005).
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KEY AMENDMENTS TO THE ITEDSDA
This bill, S.245, is identical to language in approved in
S. 209 during the 114th Congress. The following is a
description of the key provisions of the bill S. 245.
Amendments to the TERA process of the ITEDSDA
Section 103 of the bill would make a number of amendments
to the TERA process of the ITEDSDA that are intended to address
tribal and agency concerns, including the concerns discussed in
the previous sections of this Report. The most significant
amendments to the ITEDSDA are summarized below.
Manner of TERA taking effect. The bill would amend the
ITEDSDA to change the manner in which a TERA goes into effect.
Under current law, the Secretary must approve or disapprove a
proposed TERA within 270 days of its receipt by the
Secretary.\83\ Under the bill, a TERA would go into effect
automatically on the 271st day after its delivery to the
Secretary unless the Secretary acts first to disapprove the
TERA for one of the reasons stated in the ITEDSDA. A revised
TERA will go into effect on the 91st day unless it is
disapproved by the Secretary for one of the reasons stated in
the ITEDSDA.
---------------------------------------------------------------------------
\83\25 U.S.C. Sec. 3504(e)(2)(A).
---------------------------------------------------------------------------
Reasons for disapproving a TERA. Upon enactment, there
would be only four reasons for disapproving a proposed TERA
(three of which are in current law): (1) the Indian tribe fails
to demonstrate capacity; (2) a provision of the TERA would
violate applicable Federal law;\84\ (3) the TERA does not
include the required periodic review and evaluation
provisions;\85\ and (4) the TERA does not include any of the
required enumerated provisions.\86\
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\84\This reason is new. It is added because under the bill, a TERA
goes into effect automatically if the Secretary does not disapprove it
on the basis of one of the other 3 statutory reasons before the 271st
day.
\85\25 U.S.C. Sec. 3504(e)(2)(D).
\86\25 U.S.C. Sec. 3504(e)(2)(B)(iii).
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Categorical exclusions. The bill would amend section
3504(e) of the ITEDSDA\87\ to clarify that a tribe may identify
actions that are categorically excluded from the review
process.
---------------------------------------------------------------------------
\87\Specifically, 25 U.S.C. Sec. 3504(e)(2)(B)(iii).
---------------------------------------------------------------------------
Scope of authorized development on tribal land under a
TERA. The bill would amend section 3504(e)(a)(1) by (1)
clarifying that the authorized electrical generation facilities
include those that produce energy from renewable resources; (2)
clarifying that the energy resources that may be processed or
refined under a TERA may include resources produced from non-
tribal lands, as long as ``at least a portion'' of the
resources have been developed or produced from tribal land; and
(3) authorizing agreements under a TERA for pooling, unitizing
or communitizing a tribe's energy mineral resources on tribal
land with any other energy mineral resources, whether in trust
or restricted or unrestricted fee status. The other energy
resources may be owned by a tribe, individual Indian or any
other person or entity, if consent is obtained from the owner.
Capacity determination. Under current law, the 270-day
period for approving or disapproving a TERA also governs the
time within which the Secretary determines a tribe's capacity
to regulate energy development on its tribal lands. The bill
would require that a preliminary capacity determination be made
within 120 days of the date the TERA is submitted to the
Secretary.
Deeming of tribal capacity. The bill would add a new
provision that would consider an Indian tribe to have
sufficient capacity if the Secretary finds that the tribe has
carried out, for three consecutive years without material audit
exceptions, a contract or compact under the Indian Self-
Determination and Education Assistance Act\88\ that includes
activities related to the management of the environment, tribal
land, realty, or natural resources, or if the Indian tribe has
carried out approval of surface leases under the HEARTH Act
without a finding of a compliance violation within the previous
calendar year.
---------------------------------------------------------------------------
\88\25 U.S.C. Sec. Sec. 450 et seq.
---------------------------------------------------------------------------
Statement of reasons for disapproval. Current law requires
the Secretary to ``notify the Indian tribe in writing of the
basis for the disapproval [of a proposed TERA]; . . . identify
what changes or other actions are required to address the
concerns of the Secretary; and . . . provide the Indian tribe
with an opportunity to revise and resubmit'' the TERA.\89\ The
bill would clarify this notice by requiring a detailed written
explanation of each reason for disapproval and the revisions or
changes to the TERA necessary to address each reason.
---------------------------------------------------------------------------
\89\25 U.S.C. Sec. 3504(e)(4).
---------------------------------------------------------------------------
Trust responsibility. The bill would clarify the liability
waiver clause in section 3504(e)(6) principally by (1)
including language indicating that the obligations of the
Secretary under section 3504 are part of the trust obligation
of the United States, and (2) adding a clause at the end to the
effect that the waiver clause does not absolve, limit, or
otherwise affect ``the liability, if any, of the United
States'' for terms that are not ``negotiated terms'' or for
``losses that are not the result of a negotiated term,
including losses resulting from the failure of the Secretary to
perform an obligation of the Secretary under this section.''
These changes are not intended to affect the substance of
section 3504(e)(6) in current law, but to clarify that the
liability waiver clause reaches only losses resulting from
``negotiated terms'' and that it is not a blanket waiver
covering all losses.
Interested party petitions. The bill would make clarifying
amendments to section 3504(e)(7) relating to petitions to the
Secretary by ``interested parties.'' The bill would clarify
that the petitioner must demonstrate his or her status as an
interested party with ``substantial evidence'' (current law is
silent on what kind of showing must be made). The bill would
also clarify that the Secretary must determine interested party
status before proceeding to the question of whether the Indian
tribe is or is not out of compliance with the TERA. Finally,
the bill would require the Secretary to dismiss the petition if
the Indian tribe and the interested party agree to resolve the
issues in the petition between themselves.
Financial assistance. The bill would add a new subsection
(g) to section 3504, ``Financial Assistance in Lieu of
Activities by the Secretary.'' This provision, which is modeled
after a provision in the Indian Self-Determination and
Education Assistance Act,\90\ would require the Secretary to
make available to the Indian tribe any amounts that the
Secretary saves as a result of the tribe carrying out a TERA.
Accordingly, to the extent that the Secretary no longer has to
perform a function or activity because the tribe is performing
the function or activity itself, and as a result realizes a
savings, the funds saved must be provided to the tribe to carry
out the TERA. The bill would require the Secretary to develop a
regulatory methodology for calculating any savings for purposes
of this provision.
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\90\25 U.S.C. Sec. 450j-1(n).
---------------------------------------------------------------------------
Authorizing amendments to approved TERAs. The bill would
allow an Indian tribe to amend an approved TERA to assume
authority for approving leases, business agreements, and
rights-of-way for development of another energy resource by
negotiating with the Secretary an amendment to an approved
TERA.
Other Amendments to the ITEDSDA
The bill would make other amendments to the ITEDSDA, both
technical and substantive in nature, which are unrelated to the
TERA process. The following is a summary of the more
substantive amendments.
Tribal energy development organization. The bill would
amend the definition section of the ITEDSDA (section 3501(11))
to provide that ``tribal energy development organization''
includes corporations organized under section 17 of the Indian
Reorganization Act of 1934\91\ and section 3 of the Oklahoma
Indian Welfare Act\92\ for purposes of the ITEDSDA.
---------------------------------------------------------------------------
\91\25 U.S.C. Sec. 477.
\92\25 U.S.C. Sec. 503.
---------------------------------------------------------------------------
Well spacing; technical assistance. The bill would amend
the ITEDSDA section establishing the Department of the Interior
Indian Energy Program\93\ to require the Secretary (1) to
consult with an Indian tribe before adopting or approving well-
spacing plans affecting its energy resources and (2) to provide
technical assistance to Indian tribes in planning energy
resource development.
---------------------------------------------------------------------------
\93\25 U.S.C. Sec. 3502(a).
---------------------------------------------------------------------------
Energy development agreements and rights-of-way between the
tribe and a tribal organization. Section 103 of the bill would
amend section 3504(a)(2) to allow energy development agreements
and rights-of-way with terms that do not exceed 30 years (or in
the case of an oil and gas lease, years and so long thereafter
as oil or gas are produced in paying quantities) between the
Indian tribe and a tribal energy development organization that
is majority owned and controlled by the tribe--and has been
certified as such by the Secretary--without approval by the
Secretary.\94\ Such a lease or business agreement with a
``certified'' tribal energy development organization would be
authorized without Secretarial approval even in the absence of
a TERA. In effect, this amendment contemplates that an
agreement with a certified tribal energy development
organization should be treated as an agreement with the Indian
tribe itself or with an agency or instrumentality of the tribe
for purposes of energy resource development on its tribal
land.\95\ Under current law, a decision by the Indian tribe to
develop its own resources (i.e., without relying on a lease or
agreement with a third, non-tribal party) on its own tribal
land does not require approval by the Secretary.
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\94\25 U.S.C. Sec. 3504(h). The certification by the Secretary is
intended to provide any minority investor in the organization with the
certainty that the organization may enter into leases, agreements, and
rights-of-way with the Indian tribe without Secretarial approval.
\95\This tribal agency or instrumentality status is assured by the
certification process under section 3504(h), as added by section 103 of
the bill. This new subsection would require the Secretary to determine
that (1) the organization is organized under the laws of the Indian
tribe and subject to its jurisdiction and authority; (2) the
organization is majority owned and controlled by the tribe; and (3) the
organizing document of the organization requires that the tribe own and
control a majority interest in the organization at all times.
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Appraisals. The bill would add a new section at the end of
the ITEDSDA authorizing appraisals of fair market value of
energy resources held in trust for an Indian tribe or by the
tribe subject to Federal restrictions against alienation, for
purposes of any transaction that requires approval of the
Secretary, to be prepared by (1) the Secretary, (2) the
affected tribe, or (3) a certified, third-party appraiser
pursuant to a contract with the tribe. The Secretary would have
45 days within which to approve an appraisal prepared by the
Indian tribe or its contractor or, if disapproved, written
notice of each reason for the disapproval and how the appraisal
should be corrected. The Secretary is required to publish
regulations for implementing the section.
Other amendments to Federal laws
Amendment to Federal Power Act. Section 201 of the bill
would amend section 7(a) of the Federal Power Act\96\ to make
the provisions of that section applicable to Indian tribes
(along with States and municipalities). However, this section
of the bill also provides that it does not affect preliminary
permits or original licenses issued before the enactment date
of the bill or any application for an original license if the
Commission has issued a notice of accepting the application for
filing before the enactment date of the bill. The Committee
notes that to receive a preference for a preliminary permit
application, the proposed project must be located in the
vicinity of the Indian tribe's lands.
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\96\16 U.S.C. Sec. 800(a).
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Amendments to Federal Weatherization Program. Section 203
of the bill would amend the Energy Conservation and Production
Act\97\ to facilitate direct funding of Indian tribes to carry
out the weatherization program. The amendment leaves intact the
amount authorized to be reserved from State funding under
current law but authorizes direct funding (1) if requested by
the tribal organization and (2) the Secretary of Energy
determines that the low-income members of the Indian tribe will
be equally or better served by direct funding rather than
through the State. The bill would also create a presumption
that a tribally designated housing entity in good standing
under the Native American Housing Assistance and Self-
Determination Act of 1996\98\ would presumptively qualify as
equally or better serving the low-income tribal members.
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\97\42 U.S.C. Sec. 6863(d).
\98\25 U.S.C. Sec. 4101, et. seq.
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Biomass demonstration projects. Section 202 of the bill
would amend the Tribal Forest Protection Act of 2004\99\ (TFPA)
to add a new section at the end of that Act authorizing a
biomass demonstration project for Indian tribes. This section
would also authorize a similar demonstration project for Alaska
Native corporations (but not as part of the amendment to the
TFPA). With respect to the demonstration projects under the
TFPA, the bill would require that at least four new
demonstration projects be carried out from 2017 to 2021, with
Indian tribes to be selected based on several enumerated
criteria. The bill would allow participating tribes to enter
into stewardship contracts with the Secretary of Agriculture or
of the Interior that include Federal lands for terms not to
exceed 20 years and a renewal term not to exceed 10 years, as
opposed to the 10-year limitation on those contracts under
current law.
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\99\Pub. L. No. 108-278, 118 Stat. 868 (2004).
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Amendments to Long-Term Leasing Act for the Navajo Nation.
Section 205 of the bill would amend subsection (e) of the Long-
Term Leasing Act,\100\ which regards the Navajo Nation, to
remove a limitation in that subsection on the exploration,
development, or extraction of mineral resources. With this
limitation in current law, subsection (e) authorizes only
surface leases without approval of the Secretary. The bill
would amend the subsection so that it would also authorize
mineral leasing with a term not to exceed 25 years or, in the
case of oil and gas, for 10 years plus any additional time that
``the Navajo Nation determines to be appropriate where oil or
gas is produced in a paying quantity.''
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\100\25 U.S.C. Sec. 415(e).
---------------------------------------------------------------------------
Extension of tribal lease period for the Crow Tribe of
Montana. Section 206 of the bill would add the Crow Tribe to
the list of Indian tribes that are authorized under 25 U.S.C.
Sec. 415(a) to enter into public, religious, educational,
recreational, residential, or business leases for terms up to
99 years, with the approval of the Secretary.
Trust status of lease payments. Section 207 of the bill
would require the Secretary, upon request of the Indian tribe
or individual Indian, to hold in trust any advance payments,
bid deposits, or other earnest money received by the Secretary
of the Interior, in connection with the review and Secretarial
approval of a sale, lease, or permit. Upon approval or
disapproval of the conveyance instrument, the funds and the
interest would be disbursed to the appropriate party.
LEGISLATIVE HISTORY
Previous Congressional Action. In the 110th Congress on May
1, 2008, the Committee held an oversight hearing on Indian
Energy Development.\101\ In the 111th Congress on October 22,
2009, the Committee held a hearing on Indian Energy and Energy
Efficiency as a follow up to the May 1, 2008 hearing.\102\ On
April 22, 2010, during the 111th Congress, the Committee held a
hearing on a discussion draft of the Indian Energy Promotion
and Parity Act of 2010.\103\
---------------------------------------------------------------------------
\101\Indian Energy Development, Before the S. Comm. on Indian
Affairs, 110th Cong. (May 1, 2008).
\102\Indian Energy and Energy Efficiency, Before the S. Comm. on
Indian Affairs, 111th Cong. (2009).
\103\Legislative Hearing on a Discussion Draft of the Indian Energy
Promotion and Parity Act of 2010, Before the S. Comm. on Indian
Affairs, 111th Cong. (2010).
---------------------------------------------------------------------------
The Committee held a listening session during the 112th
Congress on a Tribal Energy Draft Bill on May 19, 2011. The
discussion was to consider an Indian energy bill to be
introduced by Senator Barrasso, where it was ``meant to
encourage comments, suggestions, and ideas from stakeholders
for a bill that would facilitate the development of tribal
energy resources.''\104\
---------------------------------------------------------------------------
\104\Indian Tribal Energy Development and Self-Determination Act
Amendments of 2011--Staff Draft--For Discussion Only, S. Comm. on
Indian Affairs, at 1 (Apr. 12, 2011).
---------------------------------------------------------------------------
On February 16, 2012, during the 112th Congress, the
Committee held an oversight hearing on Energy Development in
Indian Country.\105\ On April 19, 2012, the Committee held a
legislative hearing on S. 1684, Indian Tribal Energy
Development and Self-Determination Act Amendments of 2011, a
bill introduced by Senator Barrasso during the 112th
Congress.\106\ The Committee also held a roundtable on Energy
Development in Indian Country on June 5, 2013.
---------------------------------------------------------------------------
\105\Energy Development in Indian Country Before the S. Comm. on
Indian Affairs, 112th Cong. (2012).
\106\Legislative Hearing on S.1684, Indian Tribal Energy
Development and Self-Determination Act Amendments of 2011 Before the S.
Comm. on Indian Affairs, 112th Cong. (2012).
---------------------------------------------------------------------------
During the 113th Congress, Senator Barrasso introduced S.
2132 on March 13, 2014. The bill had ten bi-partisan co-
sponsors. The Committee held a legislative hearing on S. 2132
on April 30, 2014.\107\ On May 21, 2014, the Committee held a
business meeting to consider S. 2132 at which five amendments
to the bill were offered and adopted,\108\ and the Committee
ordered the bill, as amended, favorably reported.
---------------------------------------------------------------------------
\107\Legislative Hearing, to receive testimony on the following
bill: S. 2132, to amend the Indian Tribal Energy Development and Self-
Determination Act of 2005, and for other purposes: Hearing Before the
S. Comm. on Indian Affairs, 113th Cong. (2014).
\108\These amendments were discussed at length in S. Rep. No. 113-
224 (2014).
---------------------------------------------------------------------------
In the 114th Congress, Senator Barrasso introduced S. 209,
along with Senators Enzi, Fischer, Hoeven, McCain, Moran, and
Tester, on January 21, 2015. Senators Bennet, Gardner, and
Murkowski were later added as co-sponsors.
The bill was referred to the Committee on Indian Affairs.
The Committee held a business meeting on February 4, 2015 to
consider S. 209, along with other bills. By voice vote, the
Committee ordered the bill favorably reported, without
amendment.
In the 115th Congress, Senator Hoeven introduced S. 245,
along with Senators Barrasso, Heitkamp, Lankford, McCain, and
Moran, on January 30, 2017. Senators Enzi and Gardner were
later added as cosponsors. The bill was referred to the
Committee on Indian Affairs. The Committee held a business
meeting on February 8, 2017 to consider S. 245, along with
other bills. By voice vote, the Committee ordered the bill
favorably reported, without amendment.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 sets forth the short title, the ``Indian Tribal
Energy Development and Self-Determination Act Amendments of
2017'' (hereinafter, the ``Act'').
Section 2. Table of contents
Section 2 sets forth the table of contents.
Section 101. Indian tribal energy resource development
Section 101(a) of the Act amends section 2602(a) of the
Energy Policy Act of 1992 by (1) adding a requirement that the
Secretary of the Interior consult with Indian tribes before
approving well-spacing programs that affect their energy
resources; (2) adding a new paragraph that requires that
Secretary to provide technical assistance to Indian tribes
interested in developing plans for electrification, permitting
of oil and gas operations and renewable facilities, energy
efficiency programs, electrical generation and other activities
related to energy, plans for protecting natural, cultural and
other resources, and any other plans that would assist an
Indian tribe in the development or use of energy resources; and
(3) requiring the Secretary to carry out the program under
section 2602 of the Energy Policy Act of 1992 in cooperation
with the Department of Energy Office of Indian Energy Policy
and Programs.
Section 101(b) of the Act amends section 2602(b)(2) of the
Energy Policy Act of 1992 to add ``intertribal organizations''
to the eligible grantees that can participate in the loan
guarantee program under that section (in addition to Indian
tribes and tribal energy resource development organizations),
and to add, as an authorized use of grant funds, ``activities
to increase capacity of Indian tribes to manage energy
development and efficiency programs.''
Section 101(c) of the Act amends section 2602(c) of the
Energy Policy Act of 1992 to include tribal energy development
organizations to participate in the loan guarantee program
under that section. This section also requires the Secretary of
Energy to adopt regulations to carry out the subsection not
later than 1 year after the date of enactment of these
amendments.
Section 102. Indian tribal energy resource regulation
Section 102 of the Act amends section 2603(c) of the Energy
Policy Act of 1992 to require the Secretary of the Interior to
provide assistance, information and expertise to a tribal
energy development organization (i.e., in addition to an Indian
tribe) when issuing energy resource development grants under
that title.
Section 103. Tribal energy resource agreements
Section 103 of the Act makes several amendments to section
2604 of the Energy Policy Act of 1992, relating to tribal
energy resource agreements (``TERAs'').
Section 103(a)(1) clarifies that the applicable lease or
business agreement may also include facilities that produce
electricity from renewable resources and facilities to process
or refine energy resources that ``at least a portion of which
have been developed on or produced from tribal land.'' This
section also allows leases and business agreements to include
provisions for the voluntary pooling, unitization or
communization of the Indian tribe's energy resources with the
energy resources of other parties.
This section provides that a lease or business agreement
between the Indian tribe and a tribal energy development
organization, majority owned and controlled by the Indian tribe
(or the Indian tribe and 1 or more other Indian tribes the
tribal land of which is being developed) does not require
review and approval of the Secretary under 25 U.S.C. Sec. 81 if
the lease or business agreement is for a term not to exceed 30
years or, in the case of an oil and gas lease, 10 years and so
long thereafter as oil and gas is produced in paying
quantities.
Section 103(a)(2) clarifies that the applicable right-of-
way may also include facilities that produce electricity from
renewable resources. This section also provides that a right-
of-way between the Indian tribe and a tribal energy development
organization, majority owned and controlled by the Indian tribe
(or the Indian tribe and 1 or more other Indian tribes the
tribal land of which is being developed) does not require
review and approval of the Secretary under 25 U.S.C. Sec. 81 if
the lease or business agreement is for a term not to exceed 30
years.
Section 103(a)(2) also clarifies that the right-of-way may
serve ``the purposes, or facilitate in carrying out the
purposes, of any lease or agreement entered into for energy
resource development on tribal land.''
Section 103(a)(3) makes conforming amendments to section
2604(d) of the Energy Policy Act of 1992 to clarify when a
lease, business agreement, or right-of-way is valid under a
TERA.
Section 103(a)(4) streamlines the TERA approval process.
Under current law, the Secretary must either approve or
disapprove a TERA within 270 days of the date on which an
Indian tribe submits the TERA. Section 103(a)(4) provides that
a TERA would automatically take effect 271 days after it is
submitted by an Indian tribe unless the Secretary disapproves
it before then. A revised TERA automatically takes effect 91
days after it is submitted to the Secretary unless disapproved.
Under this section, the Secretary is required to disapprove
the TERA only if the Secretary finds that (1) the Indian tribe
has failed to demonstrate capacity; (2) the TERA would
``violate applicable Federal law or a treaty of the Indian
tribe; or (3) the TERA fails to include any of the provisions
mandated for TERAs under section 2604(e), such as establishing
an environmental review process or allowing for periodic review
by the Secretary.
This section also clarifies and expedites the process for
determining tribal capacity for a TERA. Current law requires
the Secretary to determine within 270 days whether an Indian
tribe has demonstrated sufficient capacity to regulate the
development of energy resources.
Section 103(a) changes these requirements. First, this
section requires the Secretary to determine whether ``the
Indian tribe has not demonstrated . . . sufficient capacity to
regulate the development of the specific 1 or more energy
resources identified for development under the [TERA].''
Second, the Secretary is required to make a preliminary
determination within 120 days of the date on which the Indian
tribe submits a TERA unless the Secretary and the tribe agree
to extend that time period. Third, section 103(a)(4) provides
that an Indian tribe will be deemed to have demonstrated
sufficient capacity if (1) the tribe has a record of managing
programs relating to the environment, tribal land, realty, or
natural resources under the Indian Self-Determination and
Education Assistance Act in a fiscally responsible manner for
three consecutive years; (2) the tribe has successfully carried
out approval of surface leases under the HEARTH Act for the
previous year without a finding of a compliance violation; or
(3) the Secretary fails to make the capacity determination
within the applicable time period.
This section clarifies that the mitigation measures
required for a TERA are to be determined in the tribe's
discretion and adds a provision allowing the Indian tribe to
identify categorical exclusions from the environmental review
process.
This section clarifies that, if the Secretary disapproves a
TERA, the disapproval must include a detailed, written
explanation of the reasons for the disapproval. This section
clarifies that the provisions of this section do not absolve
the United States from liability arising from terms that are
not negotiated terms between the Indian tribe and a third party
or losses that are not the result of the negotiated terms.
This section clarifies that an interested party who is
eligible to challenge a tribe's compliance of a TERA must
demonstrate with substantial evidence that the party would
sustain an adverse environmental impact. This section further
clarifies the process for reviewing a petition by an interested
party by requiring the Secretary to first determine whether the
petitioner is an ``interested party'' and then whether the
Indian tribe is in compliance with the TERA. This section also
adds a provision requiring the Secretary to dismiss the
petition if the petitioner and the Indian tribe have agreed to
a resolution of the issues in the petition.
This section authorizes an Indian tribe to amend an
approved TERA to assume authority over another energy resource
that is not included in an approved tribal energy resource
agreement, and requires the Secretary to promulgate regulations
implementing the process and requirements for such an
amendment.
This section prohibits the Secretary from denying a TERA or
any amendment to a TERA, and from limiting the effect or
implementation of this section due to lack of promulgated
regulations.
Section 103(a)(5) makes a technical amendment to renumber a
paragraph.
Section 103(a)(6) requires the Secretary to provide funding
to the Indian tribe in an amount equal to any savings that the
United States will realize as a result of the Indian tribe
carrying out a TERA. The funding would be made available under
a separate funding agreement. The methodology for determining
the funding would be developed through regulations.
This section also sets forth the requirements for
certification by the Secretary as a tribal energy development
organization. The Secretary shall approve a tribal application
for certification if (1) the tribe has carried out contracts or
compacts relating to tribal land under the Indian Self-
Determination and Education Assistance Act for three years
without material audit exceptions; (2) the entity is organized
under the laws of the Indian tribe and subject to its
jurisdiction and authority; (3) the majority interest in the
entity is owned and controlled by the Indian tribe (or the
Indian tribe and 1 or more other Indian tribes the tribal land
of which is being developed); and (4) the majority interest
ownership and control is required under the organizing
documents of the organization.
If the Secretary approves an application for certification,
the Secretary is required to issue a certification, deliver a
copy of the certification to the Indian tribe, and publish the
certification in the Federal Register. This section clarifies
that the TERA provisions do not waive tribal sovereign
immunity.
Section 103(b) of the Act requires the Secretary to adopt
regulations governing the amendments to the TERA process made
in this section.
Section 104. Technical assistance for Indian tribal governments
Section 104 amends section 2602(b) of the Energy Policy Act
of 1992 to require the Secretary to collaborate with the
Directors of the National Laboratories in making the full array
of technical and scientific resources of the Department of
Energy available for tribal energy activities and projects.
Section 105. Conforming amendments
Section 105 sets forth a number of conforming amendments
intended to make other provisions of the Energy Policy Act of
1992 consistent with the amendments contained in sections 101,
102, and 103 of this bill. In addition, section 105 expands
Title V's definition of ``tribal energy development
organization'' to include any enterprise, partnership,
consortium, corporation, or other type of business organization
that is engaged in the development of energy resources and is
wholly owned by an Indian tribe, including organizations
incorporated pursuant to section 17 of the Indian
Reorganization Act of 1934 or section 3 of the Oklahoma Indian
Welfare Act.
Section 201. Issuance of preliminary permits and licenses
Section 201 amends section 7(a) of the Federal Power Act.
Under current law, the Federal Energy Regulatory Commission
(FERC) is authorized to give States and municipalities
preference when issuing preliminary permits or original
licenses (where no preliminary permit has been issued) for
hydroelectric projects. Section 201(a) authorizes FERC to give
the same preference to Indian tribes. This section, however,
does not affect the authority of the FERC to address or
determine sites or locations of any projects or other decisions
affecting permits or licenses and to receive a preference for a
preliminary permit application, the proposed project must be
located in the vicinity of the Indian tribe's lands.
Section 201(b) states that the tribal preference for
hydroelectric projects would not affect any preliminary permit
or original license (where no preliminary permit has been
issued) issued before the date of enactment of the bill. It
also states that this preference would have no effect on
applications for original licenses (where no preliminary permit
has been issued) deemed complete by FERC before the date of
enactment of the bill.
Section 201(c) defines ``Indian tribe'' for section 7(a) of
the Federal Power Act to have the meaning given the term in
section 4 of the Indian Self-Determination and Education
Assistance Act.
Section 202. Tribal biomass demonstration project
Section 202 of the Act establishes a biomass demonstration
project for Indian tribes and Alaska Native corporations to
promote biomass energy production.
Section 202(b) amends the Tribal Forest Protection Act of
2004 to promote biomass energy production on Indian forest land
and in nearby communities. This subsection requires the
Secretary of the Interior (or, where applicable, the Secretary
of Agriculture) to enter into stewardship contracts or similar
agreements for a term of up to 20 years, and a renewal term of
up to 10 years, with Indian tribes to harvest woody biomass
from Federal land. During each year, beginning fiscal year
2017, at least four demonstration projects shall be carried out
under these contracts or agreements.
This subsection requires the Secretary of the Interior and
the Secretary of Agriculture to take into consideration a
number of factors when considering a proposed demonstration
project, such as whether a project would improve the forest
health or watersheds of Federal land or Indian forest land or
rangeland. The amendment excludes from the demonstration
projects any merchantable logs that have been identified by the
Secretary for commercial sale.
In carrying out the contracts under this subsection, the
Secretary shall incorporate management plans in effect on
Indian forest land or rangeland of the respective Indian tribe
into the agreement. The Secretary would be required to submit
to Congress a report that describes each individual application
received and each contract and agreement entered into under
this subsection.
Section 202(c) requires the Secretary to enter into a
stewardship contract or similar agreement with 1 or more tribes
(as defined by Section 4 of the Indian Self-Determination and
Education Assistance Act) in Alaska for each of fiscal years
2017 through 2021. This subsection requires the Secretary to
enter into a stewardship contract or similar agreement, for a
term of up to 20 years.
It also authorizes a renewal term of up to 10 years to
carry out a demonstration project to promote biomass energy
production on certain forest lands and in nearby communities
providing reliable supplies of woody biomass from Federal land.
Under subsection (c), the Secretary shall take into
consideration a number of factors when considering a proposed
demonstration project, such as whether a project would improve
the forest health or watersheds of Federal land or Indian
forest land or rangeland.
The section excludes from the demonstration projects any
merchantable logs that have been identified by the Secretary
for commercial sale. The Secretary shall also submit to
Congress a report that describes each individual application
received and each contract and agreement entered into under
this subsection.
Section 203. Weatherization program
Section 203 of the bill amends the Energy Conservation and
Production Act to facilitate direct funding of Indian tribes to
carry out the weatherization program. The amendment leaves
intact the amount authorized to be reserved from State funding
under current law but authorizes direct funding (1) if
requested by the tribal organization and (2) the Secretary of
Energy determines that the low-income members of the tribe will
be equally or better served by direct funding rather than
through the State.
This section also creates a presumption that a tribally
designated housing entity under section 4 of the Native
American Housing Assistance and Self-Determination Act of 1996
that has operated without material audit exceptions would
equally or better serve the low-income members of the
applicable Indian tribe.
Section 204. Appraisals
Section 204 amends Title XXVI of the Energy Policy Act of
1992 to require appraisals relating to the fair market value of
tribal mineral or energy resources prepared by an Indian tribe
or a certified third-party appraiser pursuant to a contract
with the Indian tribe to be reviewed and accepted by the
Secretary not later than 45 days unless the Secretary
determines that the appraisal fails to meet standards created
by the Secretary under this section. If the Secretary
disapproves an appraisal, the Secretary is required to give
written notice of the disapproval to the Indian tribe and a
description of each reason for the disapproval and how the
appraisal should be corrected.
Section 205. Leases of restricted lands for Navajo Nation
Section 205 amends subsection (e)(1) of the first section
of the Long-Term Leasing Act to allow the Navajo Nation to
enter into a lease for the exploration, development, or
extraction of any mineral resources without the approval of the
Secretary, if the lease is executed under tribal regulations,
approved by the Secretary and that meets certain term limits.
This section further amends the Long-Term Leasing Act by
extending the maximum authorized term for a business or
agricultural lease from 25 years to 99 years for the Navajo
Nation. Finally, this section requires the GAO to report within
five years of enactment on the progress made in carrying out
the amendment made by this subsection.
Section 206. Extension of tribal lease period for the Crow Tribe of
Montana
Section 206 adds the Crow Tribe to the list of Indian
tribes that are authorized under 25 U.S.C. 415(a) to enter into
public, religious, educational, recreational, residential, or
business leases for terms up to 99 years, with the approval of
the Secretary.
Section 207. Trust status of lease payments
Section 207 requires the Secretary, upon the request of the
tribe, to hold in trust any advance payments, bid deposits, or
other earnest money received by the Secretary, in connection
with the review and Secretarial approval of a sale, lease,
permit, or any other conveyance of any interest in any trust or
restricted land of any Indian tribe or individual Indian. If
the advance payment bid deposit or other earnest money received
results from competitive bidding, only the funds of the
successful bidder are to be held in trust, and only upon
selection of the successful bidder. Upon Secretarial approval
or disapproval of the contract or instrument, the amounts and
interest would be disbursed to the Indian tribe or otherwise
identified party. This section only applies to advance
payments, bid deposits, or other earnest moneys received on or
after the date of enactment of this Act.
COST AND BUDGETARY CONSIDERATIONS
May 3, 2017.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 245, the Indian
Tribal Energy Development and Self-Determination Act Amendments
of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Aurora
Swanson.
Sincerely,
Keith Hall.
Enclosure.
S. 245--Indian Tribal Energy Development and Self-Determination Act
Amendments of 2017
S. 245 would make various amendments to existing federal
energy programs on tribal lands. Under current law, a tribe may
enter into a tribal energy resource agreement (TERA) with the
federal government to allow the tribe to complete and manage
business agreements with third parties for such purposes as
rights-of-way for energy projects and oil and gas leases. Under
a TERA a tribe manages activities that would otherwise be
carried out by the Department of the Interior (DOI). S. 245
would allow that under most circumstances a TERA application
would automatically be approved 270 days after submission to
DOI. Under the bill, DOI also would be required to pay a tribe
operating under a TERA agreement for carrying out management
activities. CBO estimates that implementing that provision
would have no net effect on the federal budget because any
amounts paid to tribes would have been spent by DOI to conduct
the same work.
Under the bill, the Department of Energy would collaborate
with the national laboratories to provide technical assistance
to tribal governments. The bill would establish a pilot program
for tribes to use nonmarketable timber from neighboring federal
lands for energy development. Based on information from the
department, CBO estimates that implementing those provisions
would cost $1 million; such spending would be subject to the
availability of appropriations.
Enacting the bill would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply. CBO
estimates that enacting S. 245 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
S. 245 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
Tribes would benefit from greater flexibility and assistance
authorized by the bill for energy development. Any costs to
tribes would be incurred voluntarily as a condition of
assistance or of participating in a voluntary federal program.
The CBO staff contact for this estimate is Aurora Swanson
(for federal costs) and Rachel Austin (for intergovernmental
mandates). The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 245 would
have a minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has not received any formal communication on
S. 245 from the Administration.
CHANGES IN EXISTING LAW
In accordance with Committee Rules, subsection 12 of rule
XXVI of the Standing Rules of the Senate is waived. In the
opinion of the Committee, it is necessary to dispense with
subsection 12 of rule XXVI of the Standing Rules of the Senate
in order to expedite the business of the Senate.
[all]