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Prior to the founding of Hobbs Straus, Jerry Straus was lead Washington, D.C. counsel in the first large scale case for the restoration of historic Indian land – the restoration of the 48,000 acre Blue Lake lands to the Taos Pueblo.

General Memorandum 15-068

General Memorandum 15-068
House Natural Resources Committee Approves Native American Energy Act

On September 10, 2015, the House Committee on Natural Resources held a markup session in which it approved HR 538, the Native American Energy Act, a bill sponsored by Subcommittee on Indian, Insular, and Alaska Native Affairs Chairman Young (R-AK) by a vote of 23-12. The approved version is unchanged from the version of the bill that was introduced on January 26, 2015. HR 538 is quite similar to Subcommittee Chairman Young's Native American Energy Act introduced in the previous Congress as HR 1548. See our General Memorandum 13-045 of May 31, 2013. As of this writing the Committee has not issued a report on HR 538, but, according to a memorandum by the Committee's Majority staff, the bill would "promote energy development by Indian tribes and Alaska Native Corporations." The emphasis is on streamlining transactions for the extraction of fossil fuel resources, although there is one section that mentions wind and solar, and there is a section that would authorize a tribal biomass demonstration project. The bill does not mention energy efficiency.

Section 2 of the bill would add a new section to the Indian Tribal Energy Development and Self-Determination Act of 2005 to reform the process for appraisals of land or trust assets for transactions that require the approval of the Secretary of the Interior (Secretary). This section would apply to any such transaction, and would not be limited to transactions relating to energy resources. Section 3 of the bill would direct the Secretary to ensure that all agencies within the Department of the Interior involved in review, approval, and oversight of oil and gas activities on Indian lands use a uniform system to track oil and gas wells.

Section 4 of the bill would make a major change in the National Environmental Policy Act (NEPA), the federal 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. NEPA applies to transactions relating to Indian trust or restricted land if the transaction requires action by the Secretary or another federal agency. (An EIS is not required if an environmental assessment supports a finding of no significant impact, and agencies can establish categorical exclusions for broad categories of actions with little potential to result in significant impacts.) The change in the NEPA process that the bill would bring about is that, for any proposed federal action that requires an EIS, the distribution of the EIS for review and comment would be limited to members of the tribe and "any other individual residing in the affected area." The President's Council on Environmental Quality would be directed to revise its regulations to implement this change, including providing for determining how to describe the affected area. This change in NEPA would not be limited to proposed federal actions relating to energy development but, rather, would apply to any proposed federal action on Indian lands that would require an EIS.

The bill's proposed amendment to NEPA was also included in HR 1548 in the previous Congress. In H. Rept. 113-263 of November 12, 2013, in dissenting views, minority members of the Committee described the NEPA provisions as "misguided," said that the limits on review of and comment of EISs would contribute to "uninformed decision making at the federal level," and noted that such limits "would prevent even other Indian tribes with cultural ties in these so-called affected areas from commenting on a proposed project."

Section 5 of the bill would establish sweeping limits on judicial review of any "energy related action." (HR 1548 also included provisions to limit judicial review, but the approach in this year's bill is different.) HR 538 would set a 60-day jurisdictional deadline for filing a complaint, from the date of final agency action; require any such action to be filed in federal district court for the District of Columbia and require that court to resolve any such case in no more than 180 days; and allow appellate review only in the D.C. Circuit, which would be required to resolve any appeal in no more than 180 days from the date of the order being appealed. In addition, if a party challenging an "energy related action" does not "ultimately prevail, the court shall award" fees and expenses to any defendant-intervenor (e.g., a tribe), unless the court finds, based on the administrative record, that the plaintiff's position was "substantially justified or that special circumstances make an award unjust." "Energy related action" is defined as a cause of action seeking judicial review of federal agency action allowing:
(i) any person or entity to conduct activities on Indian Land, which activities involve the exploration, development, production or transportation of oil, gas, coal, shale gas, oil shale, geothermal resources, wind or solar resources, underground coal gasification, biomass, or the generation of electricity; or
(ii) any Indian Tribe, or any organization of two or more entities, at least one of which is an Indian tribe, to conduct activities involving the exploration, development, production or transportation of oil, gas, coal, shale gas, oil shale, geothermal resources, wind or solar resources, underground coal gasification, biomass, or the generation of electricity, regardless of where such activities are undertaken.

The remaining sections of HR 538 are virtually unchanged from HR 1548, including: authorizing a Tribal Biomass Demonstration Project; amending the statute that authorizes long-term leases of Indian lands (25 U.S.C. § 415) to allow the Navajo Nation to enter into certain categories of leases, including mineral extraction leases, without approval by the Secretary; and prohibiting the Department of the Interior from regulating hydraulic fracturing on Indian trust or restricted lands, except with consent of the Indian beneficiary.

Please let us know if we may provide additional information regarding HR 538.

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

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