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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 12-054

General Memorandum 12-054
Native American Energy Act Introduced in House of Representatives

On February 7, 2012, Representative Don Young (R-AK), Chairman of the House Subcommittee on Indian and Alaska Native Affairs introduced HR 3973, the Native American Energy Act. The bill is intended to spur conventional and renewable energy production on tribal lands by streamlining burdensome procedures.

The following is a summary of the major provisions in the bill.

Appraisals. Section 3 of the bill would speed up the Department of the Interior's appraisal process for determining fair market value of lands or tribal assets by allowing a tribe to conduct its own appraisals or contract out the study to a third party. If a tribe were to conduct its own study, or hire a third party to conduct the study, then upon submission of the results to the Secretary of the Interior (Secretary), the Secretary would have 60 days to approve or disapprove the results. If the Secretary were to fail to act within 60 days, the appraisal would be deemed approved. In addition, a tribe could choose to waive an appraisal entirely by submitting a tribal resolution to the Secretary asking for the waiver and including an express waiver of any future claims for damages against the United States because the tribe did not get an appraisal.

Standardization. Section 4 of the bill would direct the Secretary to implement a uniform system of reference numbers and tracking systems for oil and gas wells.

Environmental Review. Section 5 of the bill would amend section 102 of the National Environmental Policy Act (NEPA), the statute that requires the preparation of an environmental impact statement (EIS) for any federal action that would "significantly affect the quality of the human environment." The bill's language would make some major changes to the review process when an EIS is required for a proposed federal action on Indian lands by providing that such an EIS would only be made "available for review and comment by members of the Indian tribe and by any other individual residing in the affected area." This change would apply to all federal actions that require an EIS, not just tribal energy development projects on Indian lands. The bill would also direct the Council on Environmental Quality (CEQ) to revise its regulations to implement this provision. Under the CEQ regulations, when an EIS is required, the lead federal agency must request comments from other federal, state, and local agencies, affected Indian tribes, the applicant, and the public. Moreover, the standard practice now is to post the EIS on the web.

Indian Energy Development Offices. Section 6 of the bill would create at least five regional "one stop" Indian Energy Development Offices within the Interior Department. The Secretary is to consult with tribes before deciding where to locate the offices. The new offices would be responsible for streamlining the complex oil and gas permitting process by serving as a "one stop" shop for the rapid processing of all applications, permit, and licenses a tribe needs for an energy project from the Bureau of Indian Affairs, the Bureau of Land Management, the National Park Service, the U.S. Fish and Wildlife Service, the Bureau of Reclamation, the Minerals Management Service, and the Office of Special Trustee for American Indians.

BLM Fees. Section 7 of the proposed legislation would prevent the BLM from collecting fees for (1) applications for permits to drill on Indian lands, (2) oil and gas inspections on Indian lands, and (3) nonproducing acreage on Indian lands.

Limiting Lawsuits. Section 8 of the bill would discourage lawsuits or administrative challenges brought to block or delay tribal energy projects. The bill would require plaintiffs who lose their challenge to pay damages to defendants who were harmed by delays caused by the lawsuit. The bill would also require plaintiffs to post a bond equal to 30 percent of that amount that the court or agency considers is sufficient to compensate each defendant opposing the preliminary injunction or administrative stay for damages. The bill would also prevent successful plaintiffs from collecting attorney fees under the Equal Access to Justice Act.

On February 15, 2012, the House Subcommittee on Indian and Alaska Native Affairs held a hearing in which all six tribal witnesses supported the bill. The witnesses were representatives of the Southern Ute Indian Tribe, the Northern Ute Indian Tribe, the Mandan, Hidatsa & Arikara Nation, the Arctic Slope Regional Corporation, the Shinnecock Nation, and the Navajo Nation Oil and Gas Exploration and Production Company.

On April 19, 2012, the Senate Committee on Indian Affairs held a hearing on a related bill, S 1684, the Indian Tribal Energy Development and Self-Determination Act Amendments of 2011. The bill was introduced by Senate Committee on Indian Affairs Vice Chair John Barrasso (R-WY). The witnesses were representatives of the Southern Ute Indian Tribe, the Northern Ute Indian Tribe, the Mandan, Hidatsa & Arikara Nation, Colville Confederated Tribes, and the Navajo Nation Oil and Gas Exploration and Production Company. We will report on S 1684 separately.

Please contact us if you have any questions regarding this legislation.

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Inquiries may be directed to:
Chris Stearns (cstearns@hobbsstraus.com)
Dean Suagee (dsuagee@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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