[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37417-37424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18243]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 169

RIN 1076-AD40


Rights-of-Way Over Indian Lands

AGENCY: Bureau of Indian Affairs, Interior.


[[Page 37418]]


ACTION: Proposed rule.

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SUMMARY: The purpose of this rulemaking action is to revise the Rights-
of-way over Indian Lands regulations. This was identified for 
reinvention under the National Performance Review. It is written in 
plain English to make the rule easier to read and understand for Indian 
landowners and realty staff.

DATES: Comments by interested parties must in writing and we must 
receive them September 16, 1996.

ADDRESSES: You must mail or hand carry your comments to Terrance L. 
Virden, Acting Director, Office of Trust Responsibilities, Bureau of 
Indian Affairs, Department of the Interior, 1849 C Street, NW., MS 4513 
MIB, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Alice Harwood, Acting Chief, Division 
of Real Estate Services, Bureau of Indian Affairs, Department of the 
Interior, 1849 C Street, NW., MS 4513 MIB, Washington, DC 20240.

SUPPLEMENTARY INFORMATION: The proposed rule has been rewritten to 
facilitate its use by the general public and the individual Indians 
affected by the rule. Sections that no longer apply have been deleted 
and sections added for clarification. No substantive revisions are 
proposed in this rule.
    The authority to issue rule and regulations is vested in the 
Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of 
the Revised Statutes, 25 U.S.C. 2 and 9, and delegated by the Secretary 
of the Interior to the Assistant Secretary--Indian Affairs by 209 DM 8.
    Publication of the proposed rule by the Department of the Interior 
(Department) provides the public an opportunity to participate in the 
rulemaking process. Interested persons may submit written comments 
regarding the proposed rule to the location identified in the 
``addresses'' section of this document.
    The Department has determined that this rule:
     Does not have significant federalism effects.
     Will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.);
     Does not constitute a major Federal action significantly 
affecting the human environment, and no detailed statement is needed 
under the National Environmental Policy Act of 1969;
     Does not have significant takings implications in 
accordance with Executive Order 12630; and
     Is exempt by OMB from the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507(d)) and does not require a review 
by the Office of Management and Budget.

List of Subjects in 25 CFR Part 169

    Indians, lands.

    For the reasons set out in the preamble, we propose to revise Part 
169 of Title 25 of the Code of Federal Regulations, as follows:

PART 169--RIGHTS-OF-WAY OVER INDIAN LANDS

Sec.
169.1  What are the definitions of the terms used in this part?
169.2  What is the purpose and scope of this regulation?
169.3  Do I need the consent of landowners for grants of right-of-
way?
169.4  How do I get a permit to survey for a right-of-way across 
individually owned, tribal or government-owned land?
196.5  How do I apply for a right-of-way?
169.6  Am I required to submit maps?
169.7  What are the requirements for field notes?
169.8  How do I identify the location of my proposed right-of-way to 
a public survey?
169.9  Can natural objects or monuments be used as terminal points?
169.10  How are maps and field notes relevant to township and 
section lines?
169.11  What should affidavits and certificates contain?
169.12  What is the consideration for right-of-way grants?
169.13  What other damages must I pay?
169.14  What must I do to pay for the right-of-way and damages?
169.15  How is the grant approval handled?
169.16  Do I need to file an affidavit of completion?
169.17  What happens if I need to change the location of my right-
of-way from the original plan?
169.18  Is there a specific time limit for approved right-of-way 
grants?
169.19  Can I renew right-of-way grants?
169.20  Will I be notified if my right-of-way grant is terminated?
169.21  Who is responsible for reporting condemnation actions 
involving individually owned Indian lands?
169.22  How do I get permission to construct a service line across 
individually owned Indian land?
169.23  How do I get permission to construct a railroad across 
Indian land?
169.24  Are railroads in Oklahoma subject to only two Acts?
169.25  What acts authorize oil and gas pipelines?
169.26  What must I do to lay a pipeline after my grant for right-
of-way is approved?
169.27  What Acts authorize rights-of-way grants for telephone and 
telegraph lines; radio, television and other communications 
facilities?
169.28  How do I apply for rights-of-way for electric power 
projects?
169.29  What restrictions apply if I ask for a right-of-way across 
government owned lands for a transmission line?
169.30  If the Department uses my surplus capacity to transmit 
power, what conditions apply?
169.31  May I apply for land that I need for generating plants?
169.32  Who can apply to open public highways across Indian lands?

    Authority: 5 U.S.C. 301; 62 Stat. 17 (25 U.S.C. 323-328), and 
other acts cited in the text.


Sec. 169.1   What are the definitions of the terms used in this part?

    Field Notes mean notes taken by the surveyor while surveying land 
for a right-of-way.
    Individually owned land means land or any interest therein held in 
trust by the United States for the benefit of individual Indians, and 
land or any interest therein held by individual Indians subject to 
Federal restrictions against alienation or encumbrance.
    Government owned land means land owned by the United States and 
under the jurisdiction of the Secretary of the Interior which was set 
aside for the use and benefit of Indians.
    Secretary means the Secretary of the Interior or authorized 
representative acting under delegated authority.
    Tribe means any Indian tribe, band, nation, pueblo, community, 
corporation, rancheria, colony, or other group of Indians.
    Tribal land means land or any interest therein, title to which is 
held by the United States in trust for a tribe or title held by any 
tribe subject to Federal restrictions against alienation or 
encumbrance, and land reserved for Indian Bureau administrative 
purposes or lands held by the United States in trust for an Indian 
corporation chartered under section 17 of the Act of June 18,1934 (48 
Stat. 988; 25 U.S.C. 477).


Sec. 169.2   What is the purpose and scope of this regulation?

    (a) Purpose: These regulations describe the procedures, terms and 
conditions under which rights-of-way over and across tribal land, 
individually owned land, and Government owned land, may be granted.
    (b) Scope:
    (1) Appeals from administrative actions under this part must follow 
the procedures described in part 2 of this chapter.
    (2) These regulations do not cover the granting of rights-of-way 
upon tribal lands within a reservation for the purpose of constructing, 
operating, or maintaining dams, water conduits, reservoirs, 
powerhouses, transmission

[[Page 37419]]

lines or other works that constitute a part of any project for which a 
license is required by the Federal Power Act.
    (c) For lands belonging to a tribe organized under the Act of June 
18, 1934 (48 Stat. 984), the Federal Power Act provides:
    (1) That a license must be issued to use tribal lands within a 
reservation.
    (2) The license will contain conditions the Secretary deems 
necessary for the adequate protection and utilization of such lands; 
(16 U.S.C. 797(e)).
    (3) Annual charges for the use of tribal lands under any license 
issued by the Federal Power Commission must be subject to the approval 
of the tribe (16 U.S.C. 803(e)).


Sec. 169.3   Do I need the consent of landowners for grants of right-
of-way?

    (a) Yes. You must have prior written consent from the tribe for a 
grant of right-of-way or permission to survey on tribal land.
    (b) Yes. You must have prior written consent from the owner or 
owners of individually owned Indian lands for a grant of a right-of-way 
or permission to survey. You also must have approval from the 
Secretary.
    (c) The Secretary may issue a permit to survey or a grant of right-
of-way over and across individually owned lands without the consent of 
the individual Indian owners when:
    (1) The individual owner is a minor or a person who is not of sound 
mind.
    (2) The land is owned by more than one person and the owners or 
owners of a majority of interests consent to the grant.
    (3) The whereabouts of the owner(s) is unknown, and the owner(s) of 
any interests or an owner of a majority interest whose whereabouts are 
known, consent to the grant.
    (4) The heirs or devises of a deceased owner have not been 
determined.
    (5) The owners are so numerous that it is impracticable to obtain 
their consent.
    (6) When the right-of-way will cause no major damage to the owner 
or the land and can be adequately compensated for by monetary means.


Sec. 169.4   How do I get a permit to survey for a right-of-way across 
individually owned, tribal or government owned land?

    (a) You must file a written application with the Secretary.
    (b) You must describe the proposed project fully, citing purpose 
and general location, and the application must be accompanied by the 
written consents required by Sec. 169.3.
    (c) You must include documentation to show evidence of good faith 
and financial responsibility.
    (d) Your application must be accompanied by a check or money order 
to cover twice the estimated damages which may occur as a result of the 
survey.
    (e) You may submit a surety bond in lieu of a check or money order 
provided the company issuing the surety bond is licensed to do business 
in the State where the land is located.
    (f) Your application must contain an agreement for payment to the 
United States, the owners of the land, and occupants of the land, 
against liability for loss of life, personal injury, and property 
damage occurring because of survey activities caused by you, your 
employees, contractors and their employees or subcontractors and their 
employees.
    (g) If an agency of the Federal or State Government, or an 
instrumentality thereof, applies and is prohibited by law from 
depositing estimated damages in advance or agreeing to paying for 
damages, the requirement for a deposit may be waived providing the 
agency agrees in writing to pay damages as soon as they occur.
    (h) An application filed by a corporation must be accompanied by:
    (1) A copy of its charter or articles or incorporation duly 
certified by a State official of the State where the corporation was 
organized.
    (2) A certified copy of the resolution or bylaws of the corporation 
authorizing the filing of the application.
    (3) A certificate from a State official verifying that the 
applicant is authorized to do business in the State where the land is 
located if the applicant is incorporated out of State.
    (4) A certified copy of the articles of partnership or association 
if an application is filed by an unincorporated partnership or 
association. If there is no certificate, this must be stated over the 
signature of each member of the unincorporated partnership or 
association.
    (5) Proof of current financial responsibility and good faith will 
be sufficient, if you have previously filed an application accompanied 
by the required documents. You must reference the date and place of 
filing.
    (i) The Secretary will write you a letter informing you whether or 
not you are granted permission to survey.


Sec. 169.5  How do I apply for a right-of-way?

    You must submit a written application in duplicate. The application 
must do all of the following:
    (a) Identify the use for the right-of-way.
    (b) Cite the statute(s) under which it is filed and the width and 
length of the requested right-of-way.
    (c) Include proof of your good faith and financial responsibility.
    (d) If you are a corporation, you must follow the same procedures 
outlined in Sec. 169.4(h) of this part.
    (e) Your application must be accompanied by an affidavit agreeing 
to do all of the following:
    (1) To construct and maintain the right-of-way in a workmanlike 
manner.
    (2) To pay promptly all damages and compensation, in addition to 
the deposit due to the landowners and authorized users and occupants of 
the land for the survey, granting, and construction and maintenance of 
the right-of-way.
    (3) To pay the landowners and authorized users and occupants 
against any liability for loss of life, personal injury or property 
damage arising from the construction, maintenance, occupancy or use of 
the lands by you, your employees, contractors and their employees, or 
subcontractors and their employees.
    (4) To restore the lands as nearly as possible to their original 
condition upon the completion of construction.
    (5) To clear and keep clear the right-of-way and to dispose of all 
vegetative and other material cut, uprooted, or otherwise accumulated 
during the construction and maintenance of the project.
    (6) To take soil and resource conservation, weed control, and 
protection measures on the land.
    (7) To prevent and suppress fires on or near the lands to be 
occupied.
    (8) To build and repair roads, fences, and trails that may be 
destroyed or damaged by construction work and to build and maintain 
necessary and suitable crossings for all roads and trails that 
intersect the works constructed, maintained, or operated under.
    (9) To restore as nearly as possible the land to its original 
condition upon revoking or terminating the right-of-way.
    (10) To keep your address current. Corporations will provide the 
address of its principal place of business and of the names and 
addresses of its principal officers.
    (11) If you are a corporation, you will not interfere with the use 
of the lands by or under the authority of the landowners for any 
purpose not inconsistent with the primary purpose for which the right-
of-way is granted. The Secretary may waive this requirement if you are 
the U.S. Government or a State Government or other part and prohibited 
by law from executing any of the above stipulations.

[[Page 37420]]

    (12) You will inform the Bureau of Indian Affairs as to any 
assignment of right-of-way by providing the name and address of 
assignee.


Sec. 169.6  Am I required to submit maps?

    Yes, an original and two copies of maps of definite location are 
required with each application. The width of the right-of-way must be 
clearly shown on the maps.
    (a) You must file a separate map for each 20 mile section of right-
of-way. The last section may include any excess of 10 miles or less.
    (b) The scale should be 2,000 feet to an inch. Maps may be drawn to 
a larger scale when necessary, unless it makes the maps too cumbersome 
for convenient handling and filing.
    (c) Maps must:
    (1) show the sections, townships, and ranges affected;
    (2) show the allotment number of each tract of allotted land 
affected; and
    (3) clearly designate each tract of tribal land affected.


Sec. 169.7  What are the requirements for field notes?

    You must submit field notes with each application.
    Field notes must:
    (a) appear along the line indicating the right-of-way unless this 
makes the maps too crowded and illegible;
    (b) be filed separately and you must place a sufficient number of 
station numbers on the maps to make it more convenient to follow the 
field notes.
    (c) be typewritten;
    (d) be sufficiently complete to permit the line indicating the 
right-of-way to be readily retraced on the ground;
    (e) show whether the line was run on true or magnetic bearings.
    (1) If run on magnetic bearings, the variation of the needle and 
date of determination must be stated. One or more bearings (or angular 
connections with public survey lines) must be given.
    (2) The 10-mile sections must be indicated and numbered on all 
lines of road submitted.


Sec. 169.8  How do I identify the location of my proposed right-of-way 
to a public survey?

    (a) The terminal of the line of route must be fixed by reference of 
course and distance to the nearest existing corner of the public 
survey. The maps, the engineer's affidavit, and the certificate must 
show these connections.
    (b) If termination of the line of route is upon unsurveyed land, it 
must be connected by traverse with an established corner of the public 
survey, if not more than 6 miles distant.
    (c) The single bearing and distance from the terminal point to the 
corner must be computed and noted on the maps, in the engineer's 
affidavit, and in the certificate.
    (d) The notes and all data for the computation of the traverse must 
be submitted.


Sec. 169.9  Can natural objects or monuments be used as terminal 
points?

    (a) Connection with a natural object or a permanent monument which 
can be easily found and recognized, and will fix and perpetuate the 
position of the terminal point, can be used when the distance from an 
established corner of the public survey is more than 6 miles.
    (b) The maps must show the position of such mark, course, and 
distance to the terminus.
    (c) An accurate description must be made of the mark.
    (d) Full data concerning the traverse, the engineer's affidavit, 
and the certificate on the maps must state the connections.


Sec. 169.10  How are maps and field notes relevant to township and 
section lines?

    (a) The distance to the nearest existing corner must be noted when 
the line of survey crosses a township or section line of the public 
survey.
    (b) The maps must show these distances and the station numbers at 
the points of intersections.
    (c) The field notes must show these distances and the station 
numbers.


Sec. 169.11  What should affidavits and certificates contain?

    (a) They must contain certification by the survey engineer and you 
of the accuracy of the survey and maps and a definite location must be 
written on the maps.
    (b) They must designate by termini and length in miles and 
decimals, the line or route for which the right-of-way application is 
made.
    (c) Maps covering roads built by the Bureau of Indian Affairs to be 
transferred to a county or State government must contain an affidavit 
indicating the accuracy of the survey, executed by the Bureau highway 
engineer in charge of road construction.
    (d) A certificate must be submitted by the State or county engineer 
or other authorized officer accepting the right-of-way stating that the 
accuracy of the survey and maps is satisfactory.


Sec. 169.12  What is the consideration for right-of-way grants?

    (a) Consideration for any right-of-way granted or renewed under 
this part must be no less than, but not limited to, the fair market 
value of the rights granted plus severance damages, if any, to the 
remaining estate.
    (b) We will write a letter advising the landowners of the appraisal 
information to assist them in negotiations for a right-of-way or 
renewal.
    (c) If approved, landowners or their representatives may waive in 
writing the consideration consisting of fair market value in the 
renewal or granting of rights-of-way.


Sec. 169.13  What other damages must I pay?

    You will be required to pay all damages incident to the survey of 
the right-of-way or to the construction or maintenance of the facility 
for which the right-of-way is granted.


Sec. 169.14  What must I do to pay for the right-of-way and damages?

    At the time of filing an application for right-of-way, you must:
    (a) Deposit the total estimated dollar amount of consideration and 
damages with the Secretary.
    (b) The deposit must include a dollar amount covering:
    (1) consideration for the right-of-way;
    (2) severance damages;
    (3) damages caused during the survey; and
    (4) estimated damages to result from construction less any deposit 
previously made.
    (c) The amount deposited as consideration for the right-of-way over 
any parcel must not be less than the amount specified in the consent 
covering that parcel.
    (d) If the amounts deposited are inadequate to compensate the 
owners, you must increase the deposit to an amount determined by the 
Secretary.
    (e) The amounts deposited must be held in a ``special deposit'' 
account for distribution.
    (f) Amounts deposited to cover damages resulting from survey and 
construction may be disbursed after the damages have occurred.
    (g) Amounts deposited to cover considerations for the right-of-way 
and severance damages will be disbursed upon the granting for the 
right-of-way.
    (h) Any monies not required for disbursement will be refunded to 
you promptly following receipt of the affidavit of completion of 
construction.


Sec. 169.15  How is the grant approval handled?

    (a) If your application complies with the regulations, we will 
issue an approved conveyance document to grant your right-of-way.
    (b) We will mail a copy of the conveyance document to you. Maps of 
definite location may be attached to and incorporated into the 
conveyance document by reference.

[[Page 37421]]

    (c) The conveyance document will incorporate all conditions or 
restrictions.
    (d) We may issue one conveyance document covering all of the tracts 
of land traversed by the right-of-way, or separate conveyance documents 
that cover one or several tracts included in the application.
    (e) We will send a duplicate original copy of the conveyance 
documents, together with any other pertinent documents, to the office 
of records where they will be recorded and filed.
    (f) You may proceed with the construction work as soon as you 
receive the approved conveyance document.


Sec. 169.16  Do I need to file an affidavit of completion?

    (a) Yes. You must promptly file an affidavit of completion in 
duplicate, executed by the surveying engineer and certified by you.
    (b) One copy of the affidavit will be sent to the office of record.
    (c) Failure to file an affidavit will subject the right-of-way to 
cancellation. (See section 169.20 of this part)


Sec. 169.17  What happens if I need to change the location of my right-
of-way from the original plan?

    (a) You are required to file amended maps and field notes showing 
the new location.
    (b) A right-of-way for the new route or location will be subject to 
all requirements of the original location, including consent, approval, 
damages, and payment of damages.
    (c) You must submit necessary documents to extinguish the right-of-
way at the original location.
    (d) These documents will be sent to the office of record for 
recording and filing.


Sec. 169.18  Is there a specific time limit for approved right-of-way 
grants?

    (a) Yes. All grants will be in the form of easements for the 
periods stated in the conveyance document.
    (b) Rights-of-way granted under the Act of February 5, 1948 (62 
Stat. 17; 25 U.S.C. 323-328), have no time limitation, but rights-of-
way for all other purposes will be for a period not to exceed 50 years. 
This will be reflected in the conveyance document.
    (c) Rights-of-way covered under the Act are for:
    (1) lines for railroads, telephone lines, telegraph lines;
    (2) public roads and highways, access roads to homesite properties;
    (3) public sanitary and storm sewer lines including sewage disposal 
and treatment plants; water control and use projects (including but not 
limited to dams, reservoirs, flowage easements, ditches, and canals);
    (4) oil, gas, and public utility water pipelines (including pumping 
stations and related facilities), electric power projects, generating 
plants, switch yards, electric transmission and distribution (including 
poles, towers, and related facilities) ; and
    (5) service roads and trails essential to any of the above uses.


Sec. 169.19  Can I renew right-of-way grants?

    (a) Yes. You can submit an application for a renewal of the grant 
on or before the expiration date of any right-of-way granted for a 
limited term of years.
    (b) If the renewal involves no change in the location or status of 
the original right-of-way grant, you can file with your application a 
certificate under oath setting out this fact.
    (c) Your grant may be extended for a like term of years, upon 
payment of consideration.
    (d) Your application for renewal will be treated the same as an 
original application, if any change in the size, type, or location is 
involved.


Sec. 169.20  Will I be notified if my right-of-way grant is terminated?

    (a) Yes. All rights-of-way granted under these regulations may be 
terminated in whole or in part by 30 days written notice.
    (b) We will mail you a notice at your last known address.
    (c) The right-of-way may be terminated for any of the following 
causes:
    (1) Failure to comply with any terms or conditions of the grant or 
applicable regulations;
    (2) Nonuse of the right-of-way for a consecutive 2-year period for 
the purpose for which it was granted; or
    (3) Abandonment of the right-of-way.
    (d) You must correct the causes for termination within 30 days from 
the date of the notice.
    (e) If you fail to correct the causes for termination, an 
appropriate document terminating the right-of-way will be issued.
    (f) The document will be sent to the office of record for recording 
and filing.


Sec. 169.21  Who is responsible for reporting condemnation actions 
involving individually owned Indian lands?

    Officials of the Bureau of Indian Affairs must report the facts 
relating to any condemnation action to obtain a right-of-way over 
individually Indian owned lands to the appropriate officials of the 
Interior Department so that action may be taken to safeguard the 
interests of Indians.


Sec. 169.22  How do I get permission to construct a service line across 
individually owned Indian land?

    (a) You must sign an agreement between the landowner, a legally 
authorized occupant, or user of individually owned land and yourself, 
before you begin any work to construct a service line across 
individually owned land.
    (b) There will be limitations on the service lines, such as:
    (1) Power lines will be limited to voltages of 14.5 kv. or less; 
and
    (2) Lines for irrigation pumps, commercial or industrial uses will 
be limited to a voltage not to exceed 34.5 kv.
    (c) The service line will supply the individual owner, authorized 
occupant, or user of land, including schools and churches with:
    (1) telephone;
    (2) water;
    (3) electric power;
    (4) gas; and
    (5) other utilities.
    (d) An agreement as required in paragraph (a) of this section must 
be signed and in place before you can begin any work for the 
construction of a service line across tribal land.
    (e) The service line will supply the owner, an occupant or user of 
tribal land with any of the utilities specified in paragraph (c) of 
this section.
    (f) An agreement under paragraph (a) of this section will not be 
valid unless:
    (1) it is duly authorized in advance of construction by the 
governing body of the Indian tribe,
    (2) specifically authorizes you or the occupant to enter into 
service agreements for utilities without further tribal consent.
    (g) The agreement referred to in paragraph (a) of this section must 
include or have added a plat or diagram showing in detail the location, 
size, and extent of the line.
    (h) The agreement is to encourage the use of telephone, water, 
electric power, gas and other utilities and to extend these modern 
conveniences to sparsely settled Indian areas without undue costs. The 
plat or diagram placed on a separate sheet should bear the signature of 
the parties.
    (i) When tribal lands are involved, the agreement must be 
accompanied by a certified copy of the tribal authorization.
    (j) A signed copy of the agreement, together with a plat or 
diagram, or an authenticated copy of the tribal authorization, when 
required, must be filed within 30 days of the agreement.

[[Page 37422]]

    (k) Failure to meet this requirement may result in the removal of 
improvements placed on the land at the expense of the party responsible 
for the placement of such improvements, and
    (l) Cause the responsible party to pay for damages caused by his 
unauthorized act.


Sec. 169.23  How do I get permission to construct a railroad across 
Indian land?

    (a) The Act of March 2, 1899 (30 Stat. 990), as amended by the Acts 
of February 28, 1902 (32 Stat. 50), June 21, 1906 (34 Stat. 330), and 
June 25, 1910 (36 Stat. 859; 25 U.S.C. 312-318); The Act of March 3, 
1875 (18 Stat. 482; 43 U.S.C. 934); and the Act of March 3, 1909 (35 
Stat. 781), as amended by the Act of May 6, 1910 (36 Stat. 349; 25 
U.S.C. 320), authorize grants of rights-of-way across tribal, 
individually owned and Government-owned land, except in the State of 
Oklahoma. These grants of rights-of-way may be for railroads, station 
buildings, depots, machine shops, side tracks, turnouts, and water 
stations; for reservoirs, material or ballast pits needed to the 
construction, repair, and maintenance of railroads; and for the 
planting and growing of trees to protect railroad lines.
    (1) Rights-of-way granted under the above acts shall be subject to 
the provisions of this section as well as other pertinent sections of 
this part 169.
    (2) Except when otherwise determined by the Secretary, rights-of-
way for the above purposes granted under the Act of February 5, 1948 
(62 Stat. 17; 25 U.S.C. 323-328), shall also be subject to the 
provisions of this section.
    (b) Rights-of-way for railroads shall not exceed 50 feet in width 
on each side of the centerline of the road, except where there are 
heavy cuts and fills, then they shall not exceed 100 feet in width on 
each side of the road.
    (1) The right-of-way may include grounds adjacent to the line for 
station buildings, depots, machine shops, side tracks, turnouts, and 
water stations, not to exceed 200 feet in width by a length of 3,000 
feet, with no more than one station to be located within any one 
continuous length of 10 miles of road.
    (c) Short spurs and branch lines may be shown on the map of the 
main line, separately described by termini and length.
    (1) Longer spurs and branch lines shall be shown on separate maps.
    (2) Grounds desired for station purposes may be indicated on the 
map of definite location but separate plats must be filed for such 
grounds.
    (3) The maps shall show any other line crossed, or with which 
connection is made. The station number shall be shown on the survey 
thereof at the point of intersection.
    (4) All intersecting roads must be represented in ink of a 
different color from that used for the line for which application is 
made.
    (d) Plats of railroad station grounds shall:
    (1) be drawn on a scale of 400 feet to an inch;
    (2) must be filed separately from the line of route;
    (3) shall show enough of the line of route to indicate the position 
of the tract with reference to the station grounds.
    (4) Each station ground tract must be located with respect to the 
public survey as provided in Sec. 169.8.
    (5) All buildings or other structures shall be platted on a scale 
sufficiently large to show clearly their dimensions and relative 
positions.
    (e) You must show how the public interest will be promoted by the 
proposed road if it is parallel to and within 10 miles of, a railroad 
already built or in course of construction.
    (1) Where the Interstate Commerce Commission has made findings, a 
certified copy of such findings must be filed with the application.
    (f) You must certify that the road is to be operated as a common 
carrier of passengers and freight.
    (g) You must execute and file, in duplicate, a stipulation 
obligating the company to:
    (1) use all precautions possible to prevent forest fires;
    (2) suppress such fires when they occur;
    (3) construct and maintain passenger and freight stations for each 
Government townsite;
    (4) permit the crossing of the right-of-way by canals, ditches, and 
other projects, in a manner satisfactory to the Government officials in 
charge.
    (h) A railroad company may apply for sufficient land for ballast or 
material pits, reservoirs, or tree planting to aid in the construction 
or maintenance of the road.
    (1) The authority to use any land shall terminate upon abandonment 
or failure to use the land for such purposes for a continuous period of 
2 years.


Sec. 169.24  Are railroads in Oklahoma subject to only two Acts?

    (a) Yes, the Act of February 28, 1902 (32 Stat. 43), and the Act of 
February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328). The February 28 Act 
authorizes right-of-way grants over tribal and individually owned land 
in Oklahoma. Rights-of-way under both Acts are subject to pertinent 
provisions of this part except when otherwise determined by the 
Secretary under the Act of February 5, 1948.
    (b) One reproducible copy of the map of definite location showing 
the line of route and all lands included within the right-of-way must 
be filed with the Secretary. When tribal lands are involved, a copy of 
the map must also be filed with the tribal council.
    (c) Before any railroad may be constructed or any lands taken or 
condemned for any of the purposes set forth in section 13 of the Act of 
February 28, 1902 (32 Stat. 47), full damages must be paid to the 
Indian owners.
    (d) After the maps have been filed, the matter of damages shall be 
negotiated by the applicant directly with the Indian owners.
    (1) If an amicable settlement cannot be reached, the amount to be 
paid as compensation and damages shall be fixed and determined as 
provided in the statute.
    (2) If court proceedings are instituted, the facts shall be 
reported immediately as provided in Sec. 169.21.


Sec. 169.25  What acts authorize oil and gas pipelines?

    (a) The Act of March 11, 1904 (33 Stat. 65), as amended by the Act 
of March 2, 1917 (39 Stat. 973; 25 U.S.C. 321), the Act of March 11, 
1904, as amended, authorizes rights-of-way grants for oil and gas 
pipelines across tribal, individually owned, and Government-owned land.
    (1) Except when otherwise determined by the Secretary, rights-of-
way for the above purposes granted under the Act of February 5, 1948 
(62 Stat. 17; 25 U.S.C. 323-328), shall also be subject to the 
provisions of this section.
    (b) Rights-of-way grants under both Acts are subject to the 
pertinent provisions of this part.
    (c) Rights-of-way granted under the Act of March 11, 1904, as 
amended, for oil and gas pipelines, pumping stations or tank sites 
cannot extend beyond a term of 20 years. They may be extended for 
another period, not to exceed 20 years, following the procedures set 
out in Sec. 169.19 of this part.


Sec. 169.26  What must I do to lay a pipeline after my grant for right-
of-way is approved?

    (a) You must bury all oil or gas pipelines, including connecting 
lines, a sufficient depth below the surface of the land so that the 
pipeline does not interfere with cultivation.
    (b) Your construction must comply with the provisions of the 
applicable Federal and State laws whenever laying a line under a road 
or highway.

[[Page 37423]]

    (c) You must keep at least one-half the width of the road open to 
travel during the period of construction. When you have completed the 
construction, the road or highway must be restored to its original 
condition and all excavations must be refilled.
    (d) If the line crosses a ravine, canyon, or waterway, you must lay 
the line below the bed or on a superstructure which will not interfere 
with the use of the surface.
    (e) You must show the size of the proposed pipeline in your 
application, on the maps, in the engineer's affidavit, and in your 
certificate. The application and maps must specify whether the pipe is 
welded, screw-joint, dresser, or other type of coupling.
    (f) You must first get written permission from us if you would like 
to lay additional line(s) of pipe in the same trench, or to replace the 
original line with larger or smaller pipe. You must pay all damages as 
determined by us that are incurred by the owners in advance for these 
additions.
    (g) You may apply for additional land for pumping stations or tank 
sites. The maps must show clearly the location of all structures and 
the location of all lines connecting with the main line.
    (h) If we grant approval for additional lands for pumping stations 
or tank sites, you must file and execute a stipulation agreeing as 
follows:
    (1) To level all dikes, fire-guards, and excavations when you 
abandon the right-of-way;
    (2) To remove all concrete masonry foundations, bases, and 
structural works when you abandon the right-of-way;
    (3) To restore the land as nearly as possible to its original 
condition when you abandon the right-of-way;
    (4) That a grant for a pumping station or tank site purposes must 
be subservient to the owner's right to remove or authorize the removal 
of oil, gas, or other mineral deposits; and
    (5) That you will remove the structures for pumping the station or 
tank site or relocate them if necessary to avoid interference with the 
exploration for or recovery of oil, gas, or other minerals.
    (i) You may be allowed to construct purely lateral lines connecting 
with oil or gas wells on restricted lands after you have filed a copy 
of the written consent of the Indian owners and a blueprint copy of a 
map showing the location.
    (1) Lateral lines may be of any diameter or length.
    (2) Lateral lines must be limited to those used solely for the 
transportation of oil or gas from a single tract of tribal or 
individually owned land to another lateral or to a branch of the main 
line.
    (j) Your books and records must be open to inspection at all 
reasonable times, in order to allow us to obtain information pertaining 
in any way to oil or gas produced from tribal or individually owned 
lands or other lands under the jurisdiction of the Secretary.


Sec. 169.27  What Acts authorize right-of-way grants for telephone and 
telegraph lines; radio, television, and other communications 
facilities?

    (a) The Act of February 15, 1901 (31 Stat. 790), as amended by the 
Act of March 4, 1940 (54 Stat. 41; 43 U.S.C. 959); the Act of March 4, 
1911 (36 Stat. 1253), as amended by the Act of May 27, 1952 (66 Stat. 
95; 43 U.S.C. 961); and the Act of March 3, 1901 (31 Stat. 1083; 25 
U.S.C. 319), authorize right-of-way grants across tribal, individually 
owned, and Government-owned land. Rights-of-way granted under these 
Acts are subject to this part. They may be granted for:
    (1) Telephone and telegraph lines and offices;
    (2) Poles and lines for communication purposes: and
    (3) Radio, television, and other forms of communication 
transmitting, relay, and receiving structures and facilities.
    (b) Rights-of-way granted under the Act of February 5, 1948 (62 
Stat. 17; 25 U.S.C. 323-328), are also subject to the provisions of 
this section.
    (c) You will not be granted a right-of-way for width in excess of 
50 feet on each side of the centerline, unless you fully justify a 
width in excess of 50 feet on each side of the centerline in your 
application.
    (d) You may apply for additional land for office sites if you are 
engaged in the general telephone and telegraph business. You must file 
the location of proposed office sites separately from those showing the 
line of route, and the sites must be drawn to a scale of 50 feet to an 
inch. Maps must show enough of the line of route to indicate the 
position of the tract for the sites.
    (e) Your tract must be located with respect to the public survey, 
and all buildings or other structures must be platted on a scale 
sufficiently large to show clearly their dimensions and relative 
positions.
    (f) Rights-of-way will be limited to 200 feet on each side of the 
centerline for poles and lines for communication purposes.
    (g) Radio, television, and other forms of communication 
transmitting, relay; and receiving structures and facilities, of such 
lines and poles will be limited to an area not to exceed 400 feet by 
400 feet.
    (h) A right-of-way granted under the Act of March 4, 1911, as 
amended, will be limited to a term not exceeding 50 years from the date 
of the issuance of such grant.


Sec. 169.28  How do I apply for rights-of-way for electric power 
projects?

    (a) Grants of right-of-way for electric power projects are made 
under the Act of March 4, 1911 (36 Stat. 1253), as amended by the Act 
of May 27, 1952 (66 Stat. 95; 43 U.S.C. 961), and the Act of February 
5, 1948 (62 Stat.17; 25 U.S.C. 323-328). The March 4, 1911 Act 
authorizes right-of-way grants across tribal, individually owned and 
Government-owned land for electrical poles and lines for the 
transmission and distribution of electrical power.
    (1) Rights-of-way granted under the above Acts are subject to the 
provisions of this section as well as other pertinent sections of this 
part, except where we determine otherwise under the Act of February 5, 
1948.
    (2) All applications will be referred to the Office of the 
Assistant Secretary of the Interior for Water and Science or any other 
agency as may be designated for the area involved. This does not 
include those applications made by power-marketing agencies of the 
Department of the Interior.
    (3) Your application for authority to survey, locate, or begin 
construction on any project for the generation, the transmission or 
distribution of electrical power of 66 kv or higher, involving 
government-owned lands, will be reviewed with consideration of the 
relationship for the proposed project to the power development program 
of the United States.
    (i) If the proposed project will not conflict with the program of 
the United States, the Secretary may act on your application.
    (ii) A right-of-way granted under the Act of March 4, 1911, as 
amended, will be limited to a term not to exceed 50 years from the date 
of the issuance of the grant.
    (iii) Rights-of-way for power lines will be limited to those widths 
which can be justified and cannot exceed a width of 200 feet on each 
side of the centerline.
    (iv) If you need to change the proposed location, construction, or 
use of the project to eliminate conflicts with Federal power 
development, you must consent to or comply with the required changes 
before we take further action on your application.
    (v) You must make provisions, or bear the reasonable cost of making 
provisions for avoiding inductive interference between any project 
transmission line or other project works that you build, operate, or 
maintain on the right-of-way authorized under the grant and any

[[Page 37424]]

radio installation, telephone line, or other communicating facilities 
built or operated by any Federal agency.
    (vi) You must comply with any or requirement which may be imposed 
by other lawful authority for avoiding or eliminating inductive 
interference.
    (b) [Reserved]


Sec. 169.29  What restrictions apply if I ask for a right-of-way across 
government-owned lands for a transmission line?

    (a) If you apply for a right-of-way for a transmission line having 
a voltage of 66 kv or more, across Government-owned lands you must 
comply with Sec. 169.5. You must also execute and file a statement with 
your application agreeing to accept the right-of-way grant subject to 
the following conditions:
    (1) We reserve the right to acquire such line or facilities at a 
sum to be determined by your representative, a representative of the 
Secretary, and a third representative to be selected by the other two 
for the purpose of determining the value of such property to be 
acquired.
    (2) You must allow the Department of the Interior to use, for the 
transmission of electrical power, any surplus capacity of the line in 
excess of the capacity needed by you. You must allow us to increase the 
capacity of the line at the Department's expense and to use the 
increased capacity for the transmission of electrical power.
    (b) [Reserved]


Sec. 169.30  If the Department uses my surplus capacity to transmit 
power, what conditions apply?

    Use by the Department of surplus or increased capacity will be 
subject to the following terms and conditions:
    (a) If we want to use surplus capacity thought to exist in a line, 
we will notify you in writing. You must furnish us a certificate within 
30 days, stating whether the line has any surplus capacity for the 
transmission of electrical power in connection with your operations, 
and, if so, the extent of the surplus capacity.
    (b) If you certify that you have surplus capacity available, or 
have any increased capacity that we pay for, we may interconnect our 
transmission facilities with your line in a manner that meets approved 
standards of practice for interconnecting transmission circuits.
    (c) We will pay for interconnecting. We will also provide and 
maintain adequate switching, relaying, and protective equipment to 
ensure that the normal and efficient operation of your line will not be 
impaired.
    (d) After any interconnection is completed, you must operate and 
maintain your line in good condition; and, except in emergencies, must 
keep in a closed position all connections under your control between 
your line and the interconnecting facilities that we provide.
    (e) You must operate the interconnected power systems (yours and 
ours) in parallel.
    (f) We will transmit electrical power over your line in a way that 
will not interfere unreasonably with your use and operation of the line 
in accordance with your normal operating standards. We have the 
exclusive right to use any increased capacity for the line that we 
provided.
    (g) You don't have to allow us to transmit electrical power over 
your line to any person receiving services from you on the date that 
you apply for a grant, unless they are entitled to statutory preference 
in connection with our distribution and sale of electrical power.
    (h) We will pay you the total monthly maintenance and operating 
costs for the part of your line that we use.
    (1) We will pay you a percentage of your total operation and 
maintenance cost for that part of the line. We will calculate this 
percentage by dividing the kilowatts of power that we transmit over the 
line by the total kilowatt capacity of that part of the line.
    (2) Total monthly cost may include interest amortization on your 
net total investment (minus any investment that we make in the part of 
the line that we use). We will calculate this in accordance with the 
accounting system prescribed by the Federal Power Commission.
    (i) We will use only the part of the line that we paid for.
    (j) If you find that you need surplus capacity previously available 
for our use to transmit of electrical power for your operations, you 
may modify or revoke the previous certification. You must give us 30 
months' advance notice of your intention. You may revoke all or any 
part of the capacity of the line that we certified as being surplus to 
your needs.
    (k) If, during the existence of the grant, you want reciprocal 
accommodations for the transmission of electrical power over the 
interconnecting system of the Department to its line, such reciprocal 
accommodations will be accorded under terms and conditions similar to 
those prescribed in this paragraph in regard to the transmission by the 
Department of electrical power over your line.
    (l) The terms and conditions prescribed in this paragraph may be 
modified at any time by means of a supplemental agreement negotiated 
between you and the Secretary of the Interior or his representative.


Sec. 169.31  May I apply for land that I need for generating plants?

    Yes. You may apply for additional lands for generating plants and 
related facilities. Indicate which lands you need for this purpose on 
the maps showing the definite location of the right-of-way. You must 
also file separate maps.
    (a) These additional maps must show enough of the line of route to 
indicate the position of the tract in relation to your transmission 
line.
    (b) You must show the land you need in relation to the public 
survey as provided in Sec. 169.8, and plat all buildings or other 
structures on a scale large enough to show clearly their dimensions and 
relative positions.


Sec. 169.32  Who can apply to open public highways across Indian lands?

    (a) The appropriate State or local authorities may apply under this 
part for authority to open public highways across tribal and 
individually owned lands in accordance with State laws, as authorized 
by the Act of March 3, 1901 (31 Stat. 1084; 25 U.S.C. 311).
    (b) The appropriate State or local authorities in Nebraska or 
Montana, instead of applying under this part, may upon compliance with 
the requirements of the Act of March 4, 1915 (38 Stat. 1188), lay out 
and open public highways in accordance with the respective laws of 
those States.
    (c) Under the provisions of the Act of March 4, 1915, the 
appropriate authorities of Nebraska and Montana must serve the 
Secretary with notice of intent to open the proposed road and must 
submit a map of definite location on tracing linen showing the width of 
the proposed road for our approval prior to the laying out and opening 
of the road.
    (d) Applications for public highway rights-of-way over and across 
roadless and wild areas will be considered in accordance with the 
regulations contained in part 265 of this chapter.

    Dated: July 11, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-18243 Filed 7-17-96; 8:45 am]
BILLING CODE 4310-02-P