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General Memorandum 17-051

General Memorandum 17-051
Native American Energy Bill Approved by House Committee on Natural Resources

On October 3, 2017, the House Committee on Natural Resources by a vote of 25-15 approved HR 210, the Native American Energy Act, sponsored by Representative Young (R-AK). HR 210 is nearly identical to his version of the legislation from the previous Congress. That legislation was included in a broader energy bill that was passed by the House but ultimately not enacted due in part to a veto threat from President Obama as well as the House and Senate's inability to reach agreement on the content of a broad energy policy bill (see our General Memoranda 16-041 of June 27, 2016, and 15-068 of September 16, 2015). In the current Congress, the prospects for Representative Young's Native American Energy Act appear to be improved, whether or not there is a larger energy bill to serve as a vehicle to which the bill could be attached. HR 210 is different from S 245, which is Senator Hoeven's (R-ND) Indian energy bill. That bill was approved by the Senate Committee on Indian Affairs earlier this year and is nearly identical to Senator Barrasso's (R-WY) version from the previous Congress (see our General Memorandum 15-035 of May 11, 2015).

Summary. HR 210 is comprised of nine sections, the first of which is the short title "Native American Energy Act." 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 Indian land. An appraisal could be done by the Bureau of Indian Affairs (BIA), the affected tribe, or by a third party pursuant to a contract with the tribe. If done by a tribe or tribe's contractor, after 60 days the appraisal would be deemed approved if not expressly disapproved by BIA. Tribes would also have the option of waiving the appraisal requirement. This section of the bill would apparently not be limited to transactions relating to energy resources but, rather, would apply to any "transaction involving Indian land or the trust assets of an Indian tribe that requires the approval of the Secretary" of the Interior. 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 application of the National Environmental Policy Act (NEPA) to federal decisions regarding Indian land. NEPA is the federal statute that requires the preparation of an environmental impact statement (EIS) for any proposed federal action that would significantly affect the quality of the human environment. (An EIS is not required if an environmental assessment supports a finding of no significant impact, or if the proposed action is covered by a categorical exclusion.) NEPA is triggered by federal agency action; it applies to transactions relating to Indian trust or restricted land if the transaction requires action by the Secretary or another federal agency.

The change in the NEPA process that the bill would bring about is that, for any proposed federal action on Indian lands that does require an EIS, the EIS would only be made available for review and comment by: "(i) Indian tribes in the affected area and individual members of those tribes wherever they reside; (ii) Other individuals who reside in the affected area; and (iii) State and local governments within the affected area." This limitation on the availability of an EIS for review and comment would not apply if the proposed federal action regards an activity "related to gaming under the Indian Gaming Regulatory Act." Other than this exception, the limitation appears to apply to any proposed federal action "regarding an activity on Indian lands." Thus, despite the title of the bill, "Native American Energy Act," this change in the NEPA process is not limited to actions involving energy development. The Council on Environmental Quality would be directed to issue regulations to implement this change, including how to determine the "affected area."

Section 5 of the bill would establish sweeping limits on judicial review of any "energy related action," a term defined as a cause of action seeking judicial review of a federal agency action allowing: (1) a person or entity to conduct various kinds of activities relating to energy resources on Indian lands; or (2) an Indian tribe, "or any organization of two or more entities, at least one of which is an Indian tribe," to conduct such activities "regardless of where such activities are undertaken." The bill would set a 60-day 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, which would be required to resolve the 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. 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."

Section 6 of the bill would authorize a Tribal Biomass Demonstration Project. Section 7 would declare that any activity conducted pursuant to a tribal resource management plan or integrated resource management plan approved by the Secretary of the Interior shall be considered a sustainable management practice for purposes of any federal standard, benefit, or requirement. Section 8 would authorize the Navajo Nation to enter into certain categories of leases, including mineral extraction leases, without approval by the Secretary. Section 9 would prohibit the Department of the Interior from regulating hydraulic fracturing on Indian trust or restricted lands, except with consent of the Indian beneficiary. The bill does not include any provisions dealing with energy efficiency or conservation programs.

Please let us know if we may provide additional information or assistance regarding Native American Energy Act.

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

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