25 U.S.C. § 3504 : US Code - Section 3504: Leases, business agreements, and rights-of-way involving energy development or transmission

Search 25 U.S.C. § 3504 : US Code - Section 3504: Leases, business agreements, and rights-of-way involving energy development or transmission

(a) Leases and business agreements
In accordance with this section -
(1) an Indian tribe may, at the discretion of the Indian tribe,
enter into a lease or business agreement for the purpose of
energy resource development on tribal land, including a lease or
business agreement for -
(A) exploration for, extraction of, processing of, or other
development of the energy mineral resources of the Indian tribe
located on tribal land; or
(B) construction or operation of -
(i) an electric generation, transmission, or distribution
facility located on tribal land; or
(ii) a facility to process or refine energy resources
developed on tribal land; and
(2) a lease or business agreement described in paragraph (1)
shall not require review by or the approval of the Secretary
under section 81 of this title, or any other provision of law, if
-
(A) the lease or business agreement is executed pursuant to a
tribal energy resource agreement approved by the Secretary
under subsection (e);
(B) the term of the lease or business agreement does not
exceed -
(i) 30 years; or
(ii) in the case of a lease for the production of oil
resources, gas resources, or both, 10 years and as long
thereafter as oil or gas is produced in paying quantities;
and
(C) the Indian tribe has entered into a tribal energy
resource agreement with the Secretary, as described in
subsection (e), relating to the development of energy resources
on tribal land (including the periodic review and evaluation of
the activities of the Indian tribe under the agreement, to be
conducted pursuant to subsection (e)(2)(D)(i)).
(b) Rights-of-way for pipelines or electric transmission or
distribution lines
An Indian tribe may grant a right-of-way over tribal land for a
pipeline or an electric transmission or distribution line without
review or approval by the Secretary if -
(1) the right-of-way is executed in accordance with a tribal
energy resource agreement approved by the Secretary under
subsection (e);
(2) the term of the right-of-way does not exceed 30 years;
(3) the pipeline or electric transmission or distribution line
serves -
(A) an electric generation, transmission, or distribution
facility located on tribal land; or
(B) a facility located on tribal land that processes or
refines energy resources developed on tribal land; and
(4) the Indian tribe has entered into a tribal energy resource
agreement with the Secretary, as described in subsection (e),
relating to the development of energy resources on tribal land
(including the periodic review and evaluation of the activities
of the Indian tribe under an agreement described in subparagraphs
(D) and (E) of subsection (e)(2)).
(c) Renewals
A lease or business agreement entered into, or a right-of-way
granted, by an Indian tribe under this section may be renewed at
the discretion of the Indian tribe in accordance with this section.
(d) Validity
No lease, business agreement, or right-of-way relating to the
development of tribal energy resources under this section shall be
valid unless the lease, business agreement, or right-of-way is
authorized by a tribal energy resource agreement approved by the
Secretary under subsection (e)(2).
(e) Tribal energy resource agreements
(1) On the date on which regulations are promulgated under
paragraph (8), an Indian tribe may submit to the Secretary for
approval a tribal energy resource agreement governing leases,
business agreements, and rights-of-way under this section.
(2)(A) Not later than 270 days after the date on which the
Secretary receives a tribal energy resource agreement from an
Indian tribe under paragraph (1), or not later than 60 days after
the Secretary receives a revised tribal energy resource agreement
from an Indian tribe under paragraph (4)(C) (or a later date, as
agreed to by the Secretary and the Indian tribe), the Secretary
shall approve or disapprove the tribal energy resource agreement.
(B) The Secretary shall approve a tribal energy resource
agreement submitted under paragraph (1) if -
(i) the Secretary determines that the Indian tribe has
demonstrated that the Indian tribe has sufficient capacity to
regulate the development of energy resources of the Indian tribe;
(ii) the tribal energy resource agreement includes provisions
required under subparagraph (D); and
(iii) the tribal energy resource agreement includes provisions
that, with respect to a lease, business agreement, or right-of-
way under this section -
(I) ensure the acquisition of necessary information from the
applicant for the lease, business agreement, or right-of-way;
(II) address the term of the lease or business agreement or
the term of conveyance of the right-of-way;
(III) address amendments and renewals;
(IV) address the economic return to the Indian tribe under
leases, business agreements, and rights-of-way;
(V) address technical or other relevant requirements;
(VI) establish requirements for environmental review in
accordance with subparagraph (C);
(VII) ensure compliance with all applicable environmental
laws, including a requirement that each lease, business
agreement, and right-of-way state that the lessee, operator, or
right-of-way grantee shall comply with all such laws;
(VIII) identify final approval authority;
(IX) provide for public notification of final approvals;
(X) establish a process for consultation with any affected
States regarding off-reservation impacts, if any, identified
under subparagraph (C)(i);
(XI) describe the remedies for breach of the lease, business
agreement, or right-of-way;
(XII) require each lease, business agreement, and right-of-
way to include a statement that, if any of its provisions
violates an express term or requirement of the tribal energy
resource agreement pursuant to which the lease, business
agreement, or right-of-way was executed -
(aa) the provision shall be null and void; and
(bb) if the Secretary determines the provision to be
material, the Secretary may suspend or rescind the lease,
business agreement, or right-of-way or take other appropriate
action that the Secretary determines to be in the best
interest of the Indian tribe;
(XIII) require each lease, business agreement, and right-of-
way to provide that it will become effective on the date on
which a copy of the executed lease, business agreement, or
right-of-way is delivered to the Secretary in accordance with
regulations promulgated under paragraph (8);
(XIV) include citations to tribal laws, regulations, or
procedures, if any, that set out tribal remedies that must be
exhausted before a petition may be submitted to the Secretary
under paragraph (7)(B);
(XV) specify the financial assistance, if any, to be provided
by the Secretary to the Indian tribe to assist in
implementation of the tribal energy resource agreement,
including environmental review of individual projects; and
(XVI) in accordance with the regulations promulgated by the
Secretary under paragraph (8), require that the Indian tribe,
as soon as practicable after receipt of a notice by the Indian
tribe, give written notice to the Secretary of -
(aa) any breach or other violation by another party of any
provision in a lease, business agreement, or right-of-way
entered into under the tribal energy resource agreement; and
(bb) any activity or occurrence under a lease, business
agreement, or right-of-way that constitutes a violation of
Federal or tribal environmental laws.
(C) Tribal energy resource agreements submitted under paragraph
(1) shall establish, and include provisions to ensure compliance
with, an environmental review process that, with respect to a
lease, business agreement, or right-of-way under this section,
provides for, at a minimum -
(i) the identification and evaluation of all significant
environmental effects (as compared to a no-action alternative),
including effects on cultural resources;
(ii) the identification of proposed mitigation measures, if
any, and incorporation of appropriate mitigation measures into
the lease, business agreement, or right-of-way;
(iii) a process for ensuring that -
(I) the public is informed of, and has an opportunity to
comment on, the environmental impacts of the proposed action;
and
(II) responses to relevant and substantive comments are
provided, before tribal approval of the lease, business
agreement, or right-of-way;
(iv) sufficient administrative support and technical capability
to carry out the environmental review process; and
(v) oversight by the Indian tribe of energy development
activities by any other party under any lease, business
agreement, or right-of-way entered into pursuant to the tribal
energy resource agreement, to determine whether the activities
are in compliance with the tribal energy resource agreement and
applicable Federal environmental laws.
(D) A tribal energy resource agreement between the Secretary and
an Indian tribe under this subsection shall include -
(i) provisions requiring the Secretary to conduct a periodic
review and evaluation to monitor the performance of the
activities of the Indian tribe associated with the development of
energy resources under the tribal energy resource agreement; and
(ii) if a periodic review and evaluation, or an investigation,
by the Secretary of any breach or violation described in a notice
provided by the Indian tribe to the Secretary in accordance with
subparagraph (B)(iii)(XVI), results in a finding by the Secretary
of imminent jeopardy to a physical trust asset arising from a
violation of the tribal energy resource agreement or applicable
Federal laws, provisions authorizing the Secretary to take
actions determined by the Secretary to be necessary to protect
the asset, including reassumption of responsibility for
activities associated with the development of energy resources on
tribal land until the violation and any condition that caused the
jeopardy are corrected.
(E) Periodic review and evaluation under subparagraph (D) shall
be conducted on an annual basis, except that, after the third
annual review and evaluation, the Secretary and the Indian tribe
may mutually agree to amend the tribal energy resource agreement to
authorize the review and evaluation under subparagraph (D) to be
conducted once every 2 years.
(3) The Secretary shall provide notice and opportunity for public
comment on tribal energy resource agreements submitted for approval
under paragraph (1). The Secretary's review of a tribal energy
resource agreement shall be limited to activities specified by the
provisions of the tribal energy resource agreement.
(4) If the Secretary disapproves a tribal energy resource
agreement submitted by an Indian tribe under paragraph (1), the
Secretary shall, not later than 10 days after the date of
disapproval -
(A) notify the Indian tribe in writing of the basis for the
disapproval;
(B) identify what changes or other actions are required to
address the concerns of the Secretary; and
(C) provide the Indian tribe with an opportunity to revise and
resubmit the tribal energy resource agreement.
(5) If an Indian tribe executes a lease or business agreement, or
grants a right-of-way, in accordance with a tribal energy resource
agreement approved under this subsection, the Indian tribe shall,
in accordance with the process and requirements under regulations
promulgated under paragraph (8), provide to the Secretary -
(A) a copy of the lease, business agreement, or right-of-way
document (including all amendments to and renewals of the
document); and
(B) in the case of a tribal energy resource agreement or a
lease, business agreement, or right-of-way that permits payments
to be made directly to the Indian tribe, information and
documentation of those payments sufficient to enable the
Secretary to discharge the trust responsibility of the United
States to enforce the terms of, and protect the rights of the
Indian tribe under, the lease, business agreement, or right-of-
way.
(6)(A) In carrying out this section, the Secretary shall -
(i) act in accordance with the trust responsibility of the
United States relating to mineral and other trust resources; and
(ii) act in good faith and in the best interests of the Indian
tribes.
(B) Subject to the provisions of subsections (a)(2), (b), and (c)
waiving the requirement of Secretarial approval of leases, business
agreements, and rights-of-way executed pursuant to tribal energy
resource agreements approved under this section, and the provisions
of subparagraph (D), nothing in this section shall absolve the
United States from any responsibility to Indians or Indian tribes,
including, but not limited to, those which derive from the trust
relationship or from any treaties, statutes, and other laws of the
United States, Executive orders, or agreements between the United
States and any Indian tribe.
(C) The Secretary shall continue to fulfill the trust obligation
of the United States to ensure that the rights and interests of an
Indian tribe are protected if -
(i) any other party to a lease, business agreement, or right-of-
way violates any applicable Federal law or the terms of any
lease, business agreement, or right-of-way under this section; or
(ii) any provision in a lease, business agreement, or right-of-
way violates the tribal energy resource agreement pursuant to
which the lease, business agreement, or right-of-way was
executed.
(D)(i) In this subparagraph, the term "negotiated term" means any
term or provision that is negotiated by an Indian tribe and any
other party to a lease, business agreement, or right-of-way entered
into pursuant to an approved tribal energy resource agreement.
(ii) Notwithstanding subparagraph (B), the United States shall
not be liable to any party (including any Indian tribe) for any
negotiated term of, or any loss resulting from the negotiated terms
of, a lease, business agreement, or right-of-way executed pursuant
to and in accordance with a tribal energy resource agreement
approved by the Secretary under paragraph (2).
(7)(A) In this paragraph, the term "interested party" means any
person (including an entity) that has demonstrated that an interest
of the person has sustained, or will sustain, an adverse
environmental impact as a result of the failure of an Indian tribe
to comply with a tribal energy resource agreement of the Indian
tribe approved by the Secretary under paragraph (2).
(B) After exhaustion of any tribal remedy, and in accordance with
regulations promulgated by the Secretary under paragraph (8), an
interested party may submit to the Secretary a petition to review
the compliance by an Indian tribe with a tribal energy resource
agreement of the Indian tribe approved by the Secretary under
paragraph (2).
(C)(i) Not later than 20 days after the date on which the
Secretary receives a petition under subparagraph (B), the Secretary
shall -
(I) provide to the Indian tribe a copy of the petition; and
(II) consult with the Indian tribe regarding any noncompliance
alleged in the petition.
(ii) Not later than 45 days after the date on which a
consultation under clause (i)(II) takes place, the Indian tribe
shall respond to any claim made in a petition under subparagraph
(B).
(iii) The Secretary shall act in accordance with subparagraphs
(D) and (E) only if the Indian tribe -
(I) denies, or fails to respond to, each claim made in the
petition within the period described in clause (ii); or
(II) fails, refuses, or is unable to cure or otherwise resolve
each claim made in the petition within a reasonable period, as
determined by the Secretary, after the expiration of the period
described in clause (ii).
(D)(i) Not later than 120 days after the date on which the
Secretary receives a petition under subparagraph (B), the Secretary
shall determine whether the Indian tribe is not in compliance with
the tribal energy resource agreement.
(ii) The Secretary may adopt procedures under paragraph (8)
authorizing an extension of time, not to exceed 120 days, for
making the determination under clause (i) in any case in which the
Secretary determines that additional time is necessary to evaluate
the allegations of the petition.
(iii) Subject to subparagraph (E), if the Secretary determines
that the Indian tribe is not in compliance with the tribal energy
resource agreement, the Secretary shall take such action as the
Secretary determines to be necessary to ensure compliance with the
tribal energy resource agreement, including -
(I) temporarily suspending any activity under a lease, business
agreement, or right-of-way under this section until the Indian
tribe is in compliance with the approved tribal energy resource
agreement; or
(II) rescinding approval of all or part of the tribal energy
resource agreement, and if all of the agreement is rescinded,
reassuming the responsibility for approval of any future leases,
business agreements, or rights-of-way described in subsection (a)
or (b).
(E) Before taking an action described in subparagraph (D)(iii),
the Secretary shall -
(i) make a written determination that describes the manner in
which the tribal energy resource agreement has been violated;
(ii) provide the Indian tribe with a written notice of the
violations together with the written determination; and
(iii) before taking any action described in subparagraph
(D)(iii) or seeking any other remedy, provide the Indian tribe
with a hearing and a reasonable opportunity to attain compliance
with the tribal energy resource agreement.
(F) An Indian tribe described in subparagraph (E) shall retain
all rights to appeal under any regulation promulgated by the
Secretary.
(8) Not later than 1 year after August 8, 2005, the Secretary
shall promulgate regulations that implement this subsection,
including -
(A) criteria to be used in determining the capacity of an
Indian tribe under paragraph (2)(B)(i), including the experience
of the Indian tribe in managing natural resources and financial
and administrative resources available for use by the Indian
tribe in implementing the approved tribal energy resource
agreement of the Indian tribe;
(B) a process and requirements in accordance with which an
Indian tribe may -
(i) voluntarily rescind a tribal energy resource agreement
approved by the Secretary under this subsection; and
(ii) return to the Secretary the responsibility to approve
any future lease, business agreement, or right-of-way under
this subsection;
(C) provisions establishing the scope of, and procedures for,
the periodic review and evaluation described in subparagraphs (D)
and (E) of paragraph (2), including provisions for review of
transactions, reports, site inspections, and any other review
activities the Secretary determines to be appropriate; and
(D) provisions describing final agency actions after exhaustion
of administrative appeals from determinations of the Secretary
under paragraph (7).
(f) No effect on other law
Nothing in this section affects the application of -
(1) any Federal environmental law;
(2) the Surface Mining Control and Reclamation Act of 1977 (30
U.S.C. 1201 et seq.); or
(3) except as otherwise provided in this chapter, the Indian
Mineral Development Act of 1982 (25 U.S.C. 2101 et seq.).
(g) Authorization of appropriations
There are authorized to be appropriated to the Secretary such
sums as are necessary for each of fiscal years 2006 through 2016 to
carry out this section and to make grants or provide other
appropriate assistance to Indian tribes to assist the Indian tribes
in developing and implementing tribal energy resource agreements in
accordance with this section.