CHAPTER 5 LINEAR PROJECTS
| Jurisdiction | United States |
LINEAR PROJECTS
CrowleyFleck PLLP
Billings, MT
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COLBY L. BRANCH is a Partner in the Energy, Environment and Natural Resources Department of Crowley Fleck PLLP's Billings, Montana office. His practice focuses on oil and gas law and Native American law, including title examination of federal, fee, state, and Indian lands, contract matters, and representation of clients before state and federal regulatory agencies. A significant component of his practice involves the representation of clients in the negotiation and implementation of natural resource exploration and development projects on Indian Reservations. Colby graduated with highest honors from the Gonzaga University School of Law. He also holds a M. S. degree in Geology, and worked as a petroleum geologist prior to attending law school. He reports for the Rocky Mountain Mineral Law Foundation on recent developments in Montana oil and gas law, and has presented several papers pertaining to mineral development on Indian Reservations at the Foundation's Special Institutes. Colby is a former President of the Montana Petroleum Association, and continues to serve on the Association's Board of Directors.
TABLE OF CONTENTS
I. INTRODUCTION
II. FEDERAL INDIAN POLICY AND LAND OWNERSHIP
III. STATUTORY RIGHTS-OF-WAY
A. Early Legislation
1. Act of March 2, 1899
2. Act of February 15, 1901
3. Act of March 3, 1901
4. Act of March 11, 1904
5. Act of March 4, 1911
6. Act of March 4, 1915
B. General Right-of-Way Act of 1948
C. BIA Right-of-Way Regulations
D. Right-of-Way Compensation and Valuation
1. Regulatory Standards and Procedures
2. Common Valuation Methods
IV. ALTERNATE SURFACE USE AUTHORIZATIONS
A. Business Leases
B. Wind and Solar Resource Leases
C. IMDA Agreements
D. TERA Rights-of-Way
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E. Indian Trust Asset Reform Act Leases
V. EMINENT DOMAIN
A. Introduction
B. Allotted Lands
C. Tribal Trust Lands
D. Mixed Interest Allotted Lands
E. Tribal Fee Lands
VI. CONCLUSION
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I. INTRODUCTION1
Indian reservations in the Western United States are commonly comprised of a haphazard checkerboard of tribal,2 allotted,3 and fee4 lands. This fragmented ownership, together with the fact that Indian trust lands5 are generally governed by federal and tribal law, rather than state law,6 creates land use issues not normally encountered outside of an Indian reservation.
At the outset, anyone contemplating business operations in an Indian reservation must be aware of a few basic tenets of Indian law: Congress has plenary power over Indian affairs and lands, subject only to constitutional limitations.7 No interest in trust lands, whether beneficially owned by a tribe or by an individual allottee, may be transferred or conveyed except as authorized by Congress.8 Any purported conveyance
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in violation of such authorization is void and of no effect.9 In view of these tenets, it is essential to ensure that any interest obtained in trust lands, whether by right-of-way, lease, or otherwise, is obtained in full compliance with applicable federal law and regulation, and that the resulting surface use does not exceed the scope of the interest granted.
For the purpose of ensuring a common base of understanding, we begin with a very brief history of federal Indian policy and the result of this changing policy on land ownership within Indian reservations. Standard rights-of-way are discussed, together with legal issues of current relevance. Alternate surface use authorizations are presented, and the scope and limitations of each method are briefly set out. Finally, we discuss access by the means of last resort, condemnation.
II. FEDERAL INDIAN POLICY AND LAND OWNERSHIP
Changing federal Indian policy through time has resulted in complex and fragmented land ownership within most Indian reservations. The discussion that follows is intended only to provide a common ground for presentation of the substance of this paper. For a more in-depth discussion of federal Indian policy and the effect of such changing policies on land ownership in Indian country, the reader is referred to the many prior publications from which this discussion is largely drawn.10
Through conquest, treaties, and purchase, the United States acquired the American West.11 As settlement encroached on Indian homelands, the United States entered into treaties with Indian Tribes which recognized the tribes' aboriginal right to
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occupy certain lands in exchange for cession of other lands.12 Other lands were "reserved" from the public domain for the sole use and benefit of individual tribes by Acts of Congress or Executive Orders.13 Legal title to the resulting lands, referred to herein as tribal lands, remained in the United States, but beneficial title vested with the tribe, to be held in common for the benefit of all living members of the tribe.14
For most Indian reservations, fragmentation began with the General Allotment Act of 1887, also known as the "Dawes Act."15 This legislation authorized the President to allot reservation lands in severalty to members of the tribe.16 Title to the allotted lands was to be held by the United States in trust for the benefit of the individual Indian allottee for 25 years, which term could be extended at the discretion of the President.17 At such time as all eligible members had received an allotment, the Secretary was authorized to negotiate with the tribe for the sale of any "surplus" lands to the United States.18 Such agreements were not final until ratified by Congress.19 All surplus lands suitable for agriculture were to be disposed of under the homestead laws.20
The General Allotment Act was put into effect on a reservation-by-reservation basis through special acts of Congress, which generally implemented (or, in some cases, superceded) the terms of the General Allotment Act with regard to the allotment of tribal lands. Such implementing legislation also generally contained Congressional ratification of the Secretary's agreement with the tribe regarding the sale of surplus lands to the United States. Legislation implementing the General Allotment Act generally provided that surplus lands were to be disposed of under the homestead, mineral, and town site laws in effect at the time.
The General Allotment Act effectively turned large blocks of tribal lands into checkerboards of allotted and fee lands. It also caused a "precipitous" decline in the total amount of Indian-owned land, from 138 million acres in 1887 to 48 million acres in
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1934.21 Much of this land was patented directly to white settlers as surplus lands, but many allotments were also sold to non-Indians by the allottees, following receipt of a fee patent to their land.22
Passage of the Indian Reorganization Act of 1934 ("IRA") signaled a dramatic reversal in federal Indian policy.23 The IRA immediately halted the practice of allotment.24 The trust period placed on remaining Indian lands was extended indefinitely.25 The Secretary was authorized to restore to tribal ownership any remaining surplus lands in Indian reservations that had been opened to entry under the General Allotment Act, subject to all valid existing rights.26
III. STATUTORY RIGHTS-OF-WAY
Rights-of-way are possessory interests in real property, and therefore can be granted over trust lands only by Congress or through a valid delegation of Congressional authority. The earliest rights-of-way across Indian lands were established by treaties negotiated by the executive, but ratified by the Senate.27 In 1871, Congress put an end to treaty-making with Indian tribes by passage of a rider to an Indian appropriations act.28 Thereafter, Congress began a piece-meal process of authorizing individual rights-of-way as needed through special legislation.29
On March 2, 1899, Congress passed the first of a series of general statutes authorizing the Secretary to grant rights-of-way across trust lands for specific purposes.30
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These statutes served as the primary means of obtaining rights-of-way across trust lands until passage of the General Right-of-Way Act of 1948 and its implementing regulations.31 The earlier statutes have not been repealed.32
A. Early Legislation
The paragraphs that follow briefly summarize the statutes enacted by Congress from 1899 to 1948 which authorize the Secretary to grant rights-of-way for specific purposes.
1. Act of March 2, 1899
The Act of March 2, 189933 authorizes the Secretary to grant rights-of-way through tribal and allotted lands for the purpose of building railroads, telegraph and telephone lines.34 The beneficial Indian owner must be compensated, but the prior consent of that owner is not required.35 The rights-of-way are unlimited in term, and continue until abandoned or terminated for non-use.
2. Act of February 15, 1901
The Act of February 15, 190136 authorizes the Secretary to "permit" the use of rights-of-way through "the public lands, forest and other reservations of the United States," together with certain specified national parks, for purposes of electric power lines and facilities, telephone and telegraph lines, and water projects.37 The Act encompasses Indian reservations, but does not extend to allotted lands outside a reservation.38 The term of the "permit" is unlimited. Prior consent of the Indian tribe is not required, but the "chief officer of the department" under whose supervision the reservation falls must approve the grant after first finding that the right-of-way is not incompatible with the
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public interest.39 The Act conveys no right, interest or easement in the property to the permittee.40
3. Act of March 3, 1901
The Act of March 3, 190141 authorizes the Secretary to allow state and local governments to establish public highways through...
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