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5 U.S.C. 301; 25 U.S.C. 323-328; 25 U.S.C. 2201 et seq.
80 FR 72534, Nov. 19, 2015, unless otherwise noted.
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Subscribe to: 25 CFR Part 169 Subpart C - Grants of Rights-of-Way
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(a) Before we grant a right-of-way, we must determine that the right-of-way is in the best interest of the Indian landowners. In making that determination, we will:
(1) Review the right-of-way application and supporting documents;
(2) Identify potential environmental impacts and adverse impacts, and ensure compliance with all applicable Federal environmental, land use, historic preservation, and cultural resource laws and ordinances; and
(3) Require any modifications or mitigation measures necessary to satisfy any requirements including any other Federal or tribal land use requirements.
(b) Upon receiving a right-of-way application, we will promptly notify the applicant whether the package is complete. A complete package includes all of the information and supporting documents required under this subpart, including but not limited to, an accurate legal description for each affected tract, documentation of landowner consent, NEPA review documentation and valuation documentation, where applicable.
(1) If the right-of-way application package is not complete, our letter will identify the missing information or documents required for a complete package. If we do not respond to the submission of an application package, the parties may take action under § 169.304.
(2) If the right-of-way application package is complete, we will notify the applicant of the date of our receipt of the complete package. Within 60 days of our receipt of a complete package, we will grant or deny the right-of-way, return the package for revision, or inform the applicant in writing that we need additional review time. If we inform the applicant in writing that we need additional time, then:
(i) Our letter informing the applicant that we need additional review time must identify our initial concerns and invite the applicant to respond within 15 days of the date of the letter; and
(ii) We will issue a written determination granting or denying the right-of-way within 30 days from sending the letter informing the applicant that we need additional time.
(c) If we do not meet the deadlines in this section, then the applicant may take appropriate action under § 169.304.
(d) We will provide any right-of-way denial and the basis for the determination, along with notification of any appeal rights under part 2 of this chapter to the parties to the right-of-way. If the right-of-way is granted, we will provide a copy of the right-of-way to the tribal landowner and, upon written request, make copies available to the individual Indian landowners, and provide notice under § 169.12.
Our decision to grant or deny a right-of-way will be in writing.
(a) We will grant a right-of-way unless:
(1) The requirements of this subpart have not been met, such as if the required landowner consent has not been obtained under § 169.107; or
(2) We find a compelling reason to withhold the grant in order to protect the best interests of the Indian landowners.
(b) We will defer, to the maximum extent possible, to the Indian landowners' determination that the right-of-way is in their best interest.
(c) We may not unreasonably withhold our grant of a right-of-way.
(d) We may grant one right-of-way for all of the tracts traversed by the right-of-way, or we may issue separate grants for one or more tracts traversed by the right-of-way.
(a) The grant will incorporate the conditions or restrictions set out in the Indian landowners' consents.
(b) The grant will address:
(1) The use(s) the grant is authorizing;
(2) Whether assignment of the right-of-way is permitted and, if so, whether additional consent is required for the assignment and whether any additional compensation is owed to the landowners;
(3) Whether mortgaging of the right-of-way is permitted and, if so, whether additional consent is required for the mortgage and whether any additional compensation is owed to the landowners; and
(4) Ownership of permanent improvements under § 169.130.
(c) The grant will state that:
(1) The tribe maintains its existing jurisdiction over the land, activities, and persons within the right-of-way under § 169.10 and reserves the right of the tribe to reasonable access to the lands subject to the grant to determine grantee's compliance with consent conditions or to protect public health and safety;
(2) The grantee has no right to any of the products or resources of the land, including but not limited to, timber, forage, mineral, and animal resources, unless otherwise provided for in the grant;
(3) BIA may treat any provision of a grant that violates Federal law as a violation of the grant; and
(4) If historic properties, archeological resources, human remains, or other cultural items not previously reported are encountered during the course of any activity associated with this grant, all activity in the immediate vicinity of the properties, resources, remains, or items will cease and the grantee will contact BIA and the tribe with jurisdiction over the land to determine how to proceed and appropriate disposition.
(5) The grantee must:
(i) Construct and maintain improvements within the right-of-way in a professional manner consistent with industry standards;
(ii) Pay promptly all damages and compensation, in addition to bond or alternative form of security made pursuant to § 169.103, determined by the BIA to be due the landowners and authorized users and occupants of land as a result of the granting, construction, and maintenance of the right-of-way;
(iii) Restore the land as nearly as may be possible to its original condition, upon the completion of construction, to the extent compatible with the purpose for which the right-of-way was granted, or reclaim the land if agreed to by the landowners;
(iv) Clear and keep clear the land within the right-of-way, to the extent compatible with the purpose of the right-of-way, and dispose of all vegetative and other material cut, uprooted, or otherwise accumulated during the construction and maintenance of the project;
(v) Comply with all applicable laws and obtain all required permits;
(vi) Not commit waste;
(vii) Operate, repair and maintain improvements consistent with the right-of-way grant;
(viii) Build and maintain necessary and suitable crossings for all roads and trails that intersect the improvements constructed, maintained, or operated under the right-of-way;
(ix) Restore the land to its original condition, to the maximum extent reasonably possible, upon cancellation or termination of the right-of-way, or reclaim the land if agreed to by the landowners;
(x) At all times keep the BIA, and the tribe for tribal land, informed of the grantee's address;
(xi) Refrain from interfering with the landowner's use of the land, provided that the landowner's use of the land is not inconsistent with the right-of-way;
(xii) Comply with due diligence requirements under § 169.105; and
(xiii) Notify the BIA, and the tribe for tribal land, if it files for bankruptcy or is placed in receivership.
(6) Unless the grantee would be prohibited by law from doing so, the grantee must also:
(i) Hold the United States and the Indian landowners harmless from any loss, liability, or damages resulting from the applicant's use or occupation of the premises; and
(ii) Indemnify the United States and the Indian landowners against all liabilities or costs relating to the use, handling, treatment, removal, storage, transportation, or disposal of hazardous materials, or release or discharge of any hazardous material from the premises that occurs during the term of the grant, regardless of fault, with the exception that the applicant is not required to indemnify the Indian landowners for liability or cost arising from the Indian landowners' negligence or willful misconduct.
(d) The grant must attach or include by reference maps of definite location.
A grant of right-of-way over or across Indian land may include a provision, consistent with tribal law, requiring the grantee to give a preference to qualified tribal members, based on their political affiliation with the tribe.
(a) If you are the grantee, you may use all or a portion of an existing right-of-way for a use not specified in the original grant of the existing right-of-way only if it is within the same scope of the use specified in the original grant of the existing right-of-way.
(1) If you propose to use all or a portion of an existing right-of-way for a use not specified in the original grant of the existing right-of-way and not within the same scope of the use specified in the original grant of the existing right-of-way, and the new use will not require any ground disturbance, you must request an amendment to the existing right-of-way grant.
(2) If you propose to use all or a portion of an existing right-of-way for a use not specified in the original grant of the existing right-of-way and not within the same scope of the use specified in the original grant of the existing right-of-way, and the new use requires ground disturbance, you must request a new right-of-way.
(b) If you are not the grantee:
(1) You may use all or a portion of an existing right-of-way for a use specified in the original grant of the existing right-of-way or a use within the same scope of the use specified in the original grant of the existing right-of-way if the grantee obtains an assignment to authorize the new user; or
(2) You may use all or a portion of an existing right-of-way for a use not specified in the original grant of the existing right-of-way and not within the same scope of use specified in the original grant of the existing right-of-way if you request a new right-of-way within or overlapping the existing right-of-way for the new use.
(c) An example of a use within the same scope is a right-of-way for underground telephone line being used for an underground fiber optic line, and an example of a use that is not within the same scope is a right-of-way for a pipeline being used for a road or railroad.
We may grant a new right-of-way within or overlapping an existing right-of-way if it meets the following conditions:
(a) The applicant follows the procedures and requirements in this part to obtain a new right-of-way.
(b) The new right-of-way does not interfere with the use or purpose of the existing right-of-way and the applicant has obtained the consent of the existing right-of-way grantee. The existing right-of-way grantee may not unreasonably withhold consent.
(a) If engineering or other complications prevented construction within the location identified in the original application and grant, and required a minor deviation from the location identified in the original application and grant, then we and the tribe, for tribal land, will determine whether the change in location requires one or more of the following:
(1) An amended map of definite location;
(2) Landowner consent;
(3) A valuation or, with landowner consent, a recalculation of compensation;
(4) Additional compensation or security; or
(5) Other actions required to comply with applicable laws.
(b) If BIA and the tribe, for tribal land, determine it is not a minor deviation in location, we may require a new right-of-way grant or amendment to the right-of-way grant.
(c) If we grant a right-of-way for the new route or location, the applicant must execute instruments to extinguish, or amend, as appropriate, the right-of-way at the original location identified in the application.
(d) We will transmit the instruments to extinguish or amend the right-of-way to the LTRO for recording.
(a) A right-of-way grant must specify who will own any permanent improvements the grantee constructs during the grant term and may specify under what conditions, if any, permanent improvements the grantee constructs may be conveyed to the Indian landowners during the grant term. In addition, the grant may indicate whether each specific permanent improvement the grantee constructs will:
(1) Remain on the premises, upon the expiration, cancellation, or termination of the grant, in a condition satisfactory to the Indian landowners, and become the property of the Indian landowners;
(2) Be removed within a time period specified in the grant, at the grantee's expense, with the premises to be restored as closely as possible to their condition before construction of the permanent improvements; or
(3) Be disposed of by other specified means.
(b) A grant that requires the grantee to remove the permanent improvements must also provide the Indian landowners with an option to take possession of and title to the permanent improvements if the improvements are not removed within the specified time period.