The  Bureau  of  Indian  Affairs  (BIA  or  Bureau)  of  the Department of the Interior (DOI or Department) continues to update its regulations governing Indian Land. The Department is revising 25 C.F.R 169 Rights-of-Way over Indian Land. In an interview with a source at the DOI, we learned that the proposed rule will be published by the end of 2014.

Current Regulations: The current Rights-of-Way regulations, published in 1969, provide the procedures and terms and conditions under which rights-of-way may be granted over and across tribal land, individually owned land and Government owned land. These regulations are extremely detailed and prescriptive. They proscribe the processes for rights-of-way applications and renewals as well as regulations for specific types of rights-of-way, which include: service lines; railroads; oil and gas pipelines; telephone and telegraph lines; radio, television, and other communications facilities; power projects; and public highways. They include all the various statutes on rights-of-way on Indian Land then in existence, most of which were passed in the early 1900s. For example, the regulations on rights-of-way for oil and gas pipelines in section 169.25 are subject to the provisions of the Act of March 11, 19041—which is silent with respect to tribal consent.

Reasons for Change: The Department’s overarching goals in revising the Rights-of-Way regulations, according to our DOI source, are: (1) to standardize and simplify the regulations, and (2) to promote tribal self-determination. The Department is taking advantage of the Indian Rights of Way Act of 1948,2 which allows for rights-of-way—with consent from the tribe—for any purpose.  Currently, when this Act is mentioned in the regulations, it is limited by the regulations. The Department would like the new regulations to be more flexible, and remove the limitations permitting rights-of-way for specific purposes only, as delineated in the current regulations.

The Department, according to our DOI source, also wants to modernize the regulations. For example, section 169.6(a) requires that each right-of-way application include maps of the right-of-way location “consisting of an original on tracing linen.” Our source reported that the revised regulations likely will allow for survey grade GPS and do away with the tracing linen requirement. The current regulations also include right-of-way regulations for telegraph lines, which our DOI source said are probably no longer necessary. The kilowatt limitations for service lines also need to be updated.

Take-away: Once the revisions to the Rights-of-Way regulations are published, they will be open for public comment. The Department will consult with Indian Tribes as it has an affirmative obligation to do so, but will not reach out to consult other groups. We will provide analysis on the proposed rule when it is issued.