GM 14-044

BIA Proposes Updated Rights-of-Way Regulations and Seeks Comments

On June 17, 2014 the Bureau of Indian Affairs (BIA) published a proposed rule for Rights-of-Way on Indian Land in the Federal Register at 79 Fed. Reg. 34455 (June 17, 2014). This proposed rule, if made effective, would supersede and significantly update the current rights-of-way regulations found at 25 C.F.R. Part 169 which were promulgated in 1968 and last updated in 1980. The proposed rule can be found at:

The BIA states that this comprehensive updating and streamlining of Part 169 was based in part on the “supportive response” to the Part 162 (leasing regulation) revision which were finalized in December 2012. The notice states that “to the extent applicable in the rights-of-way context” the proposed Part 169 will mirror the leasing regulations at Part 162. One of the notable provisions that mirrors 25 C.F.R. § 162.017 is a proposed § 169.009 which contains favorable tax provisions that prohibit State and local taxation on the right-of-way itself as well as permanent improvements and activities under a right-of-way grant. The proposed rule also: removes requirements for BIA consent for rights-of-way survey, establishes timelines for the rights-of-way approval process, allows BIA disapproval only for a compelling reason, provides greater deference to tribal decisions, and eliminates outdated requirements. The proposed rule also contains 27 new definitions, and many revised definitions. Notably the BIA has indicated that it “would specifically like comment on the bonding provisions and … durations for different types of rights-of-way set out in section 169.201 .. .” 79 Fed. Reg. 34459.

The proposed rule sets forth two deadlines for receipt of comments. Comments on the substance of the rule must be received by August 18, 2014, and comments on the “information collection burden” contained in the proposed rule should be received by “July 17, 2014 to ensure consideration” and “no later than August 18, 2014.” The BIA also set forth the schedule for tribal consultation sessions as follows: August 5, 2014 in Bismarck, ND; August 6, 2014 in Scottsdale, AZ; and August 7, 2014 via teleconference. More detailed information on the consultation schedule, and instructions for submitting comments may be found in the notice of proposed rule at 79 Fed. Reg. 34455, 59.

Please let us know if we may provide additional information on this proposed rule, or be of assistance drafting comments.