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June 17, 2014: Revisions for Right of Way on Indian Lands

BIA Proposes Rule Revisions for Rights-of-Way on Indian Lands by Heidi McNeil Staudenmaier On June 17, 2014, the Bureau of Indian Affairs (BIA) published proposed revisions to 25 CFR Part 169, whereby the new rule seeks to comprehensively update and streamline the process for obtaining BIA grants of Rights-of-Way on Indian lands. The proposed rule also would further implement policy decisions applicable to rights-of-way as established in the new BIA leasing regulations in December of 2012. The existing Rights-of-Way regulations were promulgated in 1968 and last updated in 1980. Based upon the December 2012 leasing regulations, the BIA contends that the Rights-of-Way proposed revisions “mirror those revisions to the extent applicable in the rights-of-way context.” Primary proposed changes include: • Eliminating the need to obtain BIA consent for surveying in preparation for a right-of-way. • Establishing timelines for BIA review of rights-of-way requests. • Clarifying processes for BIA review of rights-of-way documents. • Allowing BIA disapproval only where there is a stated compelling reason. • Providing greater deference to tribes on compensation for rights-of-way. • Clarifying the authority by which BIA approves rights-of-way. • Eliminating outdated requirements specific to different types of rights-of-way. In seeking these changes, the BIA asserts that “together, these revisions will modernize the rights-of-way approval process while better supporting Tribal self-determination.” Comments to the proposed new rule are due on or before August 18, 2014.

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