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When the Cochiti Pueblo of New Mexico objected to the development of hydropower at the Cochiti Dam, Hobbs Straus helped the Tribe secure legislation blocking its development (1990).

General Memorandum 14-024

General Memorandum 14-024
Tribal Energy Development Bill Introduced by Senator Barrasso

On March 13, 2014, Senator Barrasso (R-WY), Vice Chairman of the Senate Committee on Indian Affairs, introduced the Indian Tribal Energy Development and Self-Determination Act Amendments of 2014," S 2312. Co-sponsors are Senators Hoeven (R-ND), McCain (R-AZ), Thune (R-SD), and Enzi (R-WY). S 2132 is similar to a bill with the same title introduced in 2011. See our General Memorandum 11-121 (Oct. 25, 2011).

In introducing the bill, Senator Barrasso explained that in 2005, Congress had authorized a "new, alternative process for Indian tribes to take control of developing their energy resources on their own lands, without the burdens of administrative review, approval, and oversight" by entering into tribal energy resource agreements (TERAs) with the Secretary of the Interior. That new process has not been used. S 2312 would make some changes intended to streamline the process for approval of such agreements. Other issues addressed in the bill include technical assistance to tribes from the Department of Energy, a biomass energy demonstration program, and preferences for tribes when applying for permits for hydroelectric projects.

Amendments to the 2005 Act. Title I of S 2132 would amend the Indian Tribal Energy Development and Self-Determination Act ("the 2005 Act"), which was enacted as Title V of the Energy Policy Act of 2005, Pub. L. No. 109-58, most of which is codified at 25 U.S.C. §§ 3501-3506. As noted above, a tribe that enters into a TERA with the Secretary of the Interior can eliminate the requirement to have the Secretary approve leases, rights-of-way, and business agreements. Under S 2132, if the Secretary does not disapprove a TERA in 270 days, it would be deemed approved. If a tribe has carried out a Self-Determination contract or Self-Governance compact that includes programs for management of tribal land for three consecutive years without material audit exceptions, such a record would be sufficient to demonstrate capacity to regulate energy resources pursuant to a TERA. Other changes relating to TERAs include: limiting challenges to environmental review under a TERA to "interested parties"; directing the Secretary to make available to TERA tribes their "shares" of federal funding; explicitly preserving tribal sovereign immunity; and clarifying the limitations on the potential liability of the United States under an agreement entered into pursuant to a TERA.

In addition to TERAs, S 2132 includes a new option for eliminating the requirement for Secretarial approval of leases, rights-of-way, and business agreements on tribal trust or restricted land. Such transactions between a tribe and a certified "Tribal Energy Development Organization" (TEDO) would not require Secretarial approval.

Other amendments to the 2005 Act include adding to the technical assistance program administered by the Department of the Interior by directing DOI to provide technical assistance to tribes to develop energy plans, which could include a wide range of activities. In the competitive grant program administered by the Department of Energy, the bill would add tribal capacity building for managing energy development and energy efficiency as an authorized activity. The bill would also mandate DOE to promulgate regulations to implement the guaranteed loan program for tribes and TEDOs. Section 104 of S 2132 is a provision that was not in the 2011 version of the bill – a mandate for DOE to collaborate with the National Laboratories and make the full array of DOE technical and scientific resources available for tribal energy activities.

Hydropower Licensing. Section 201 would amend the Federal Power Act (16 U.S.C. § 800(a)) to include Indian tribes in the preference that states and municipalities have for hydroelectric project licenses from the Federal Energy Regulatory Commission.

Biomass Demonstration Project. Section 202 would amend the Tribal Forest Protection Act of 2004 (PL 108-278, codified at 25 U.S.C. § 3115a) to establish a Tribal Biomass Demonstration Project "to promote biomass energy production (including biofuel, heat, and electricity generation) on Indian forest land and in nearby communities by providing reliable supplies of woody biomass from Federal land." The bill would authorize the Forest Service and Bureau of Land Management to enter into agreements with tribes to carry out demonstration projects, in accordance with selection criteria set out in the bill. A provision that was not in the 2011 version of the bill would specifically authorize inclusion of Alaska Native corporations in the Biomass Demonstration Project.

Weatherization Assistance Program. Section 203 of the bill would amend the Energy Conservation and Production Act of 1976 (42 U.S.C. § 6863(d)) to change the process through which tribes can seek direct funding from the DOE Weatherization Assistance Program. Under current law, this funding is allocated to states, and weatherization services are typically provided by nonprofit organizations that receive funding from state energy offices. Tribes can receive direct funding on behalf of their low income members if DOE makes a determination that "the low-income members of an Indian tribe are not receiving benefits under this part that are equivalent to the assistance provided to other low-income persons in such State" (emphasis added). Section 203 would allow a tribal organization serving low-income tribal members to apply to DOE for a direct grant, and DOE would only have to determine that the services to be provided through the tribe would be equal to or better than services through the state.

Two of the sections in Title II of S 2132 were not in the 2011 version of the bill. Section 204 concerns appraisals for transactions that require Secretarial approval and involve mineral or energy resources held in trust or restricted status for a tribe. Section 205 would allow the Navajo Nation to lease its restricted lands for the exploration, development, or extraction of mineral resources without Secretarial approval.

If you would like further information regarding S 2132, please let us know.

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

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