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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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(a) To obtain a right-of-way across tribal or individually owned Indian land or BIA land, you must submit a complete application to the BIA office with jurisdiction over the land covered by the right-of-way.
(b) If you must obtain access to Indian land to prepare information required by the application (e.g., to survey), you must obtain the consent of the Indian landowners, but our approval to access is not required. Upon written request, we will provide you with the names, addresses, and percentage of ownership of individual Indian landowners, to allow you to obtain the landowners' consent to survey.
(c) If the BIA will be granting the right-of-way across Indian land under § 169.107(b), then the BIA may grant permission to access the land.
(a) An application for a right-of-way must identify:
(1) The applicant;
(2) The tract(s) or parcel(s) affected by the right-of-way;
(3) The general location of the right-of-way;
(4) The purpose of the right-of-way;
(5) The duration of the right-of-way: and
(6) The ownership of permanent improvements associated with the right-of-way and the responsibility for constructing, operating, maintaining, and managing permanent improvements under § 169.105.
(b) The following must be submitted with the application:
(1) An accurate legal description of the right-of-way, its boundaries, and parcels associated with the right-of-way;
(2) A map of definite location of the right-of-way (this requirement does not apply to easements covering the entire tract of land);
(3) Bond(s), insurance, and/or other security meeting the requirements of § 169.103;
(4) Record that notice of the right-of-way was provided to all Indian landowners;
(5) Record of consent for the right-of-way meeting the requirements of § 169.107, or a statement requesting a right-of-way without consent under § 169.107(b);
(6) If applicable, a valuation meeting the requirements of § 169.114;
(7) If the applicant is a corporation, limited liability company, partnership, joint venture, or other legal entity, except a tribal entity, information such as organizational documents, certificates, filing records, and resolutions, demonstrating that:
(i) The representative has authority to execute the application;
(ii) The right-of-way will be enforceable against the applicant; and
(iii) The legal entity is in good standing and authorized to conduct business in the jurisdiction where the land is located;
(8) Environmental and archaeological reports, surveys, and site assessments, as needed to facilitate compliance with applicable Federal and tribal environmental and land use requirements; and
(9) A statement from the appropriate tribal authority that the proposed use is in conformance with applicable tribal law, if required by the tribe.
(c) There is no standard application form.
(a) You must include payment of bonds, insurance, or alternative forms of security with your application for a right-of-way in amounts that cover:
(1) The highest annual rental specified in the grant, unless compensation is a one-time payment;
(2) The estimated damages resulting from the construction of any permanent improvements;
(3) The estimated damages and remediation costs from any potential release of contaminants, explosives, hazardous material or waste;
(4) The operation and maintenance charges for any land located within an irrigation project;
(5) The restoration of the premises to their condition at the start of the right-of-way or reclamation to some other specified condition if agreed to by the landowners.
(b) The bond or other security must be deposited with us and made payable only to us, and may not be modified without our approval, except for tribal land in which case the bond or security may be deposited with and made payable to the tribe, and may not be modified without the approval of the tribe. Any insurance must identify both the Indian landowners and the United States as additional insured parties.
(c) The grant will specify the conditions under which we may adjust the bond, insurance, or security requirements to reflect changing conditions, including consultation with the tribal landowner for tribal land before the adjustment.
(d) We may require that the surety provide any supporting documents needed to show that the bond, insurance, or alternative form of security will be enforceable, and that the surety will be able to perform the guaranteed obligations.
(e) The bond, insurance, or other security instrument must require the surety to provide notice to us, and the tribe for tribal land, at least 60 days before canceling a bond, insurance, or other security. This will allow us to notify the grantee of its obligation to provide a substitute bond, insurance, or other security before the cancellation date. Failure to provide a substitute bond, insurance or security is a violation of the right-of-way.
(f) We may waive the requirement for a bond, insurance, or alternative form of security:
(1) For individually owned Indian land, if the Indian landowners of the majority of the interests request it and we determine, in writing, that a waiver is in the Indian landowners' best interest considering the purpose of and risks associated with the right-of-way, or if the grantee is a utility cooperative and is providing a direct benefit to the Indian land or is a tribal utility.
(2) For tribal land, deferring, to the maximum extent possible, to the tribe's determination that a waiver of a bond, insurance or alternative form of security is in its best interest.
(g) We will accept a bond only in one of the following forms:
(1) Certificates of deposit issued by a federally insured financial institution authorized to do business in the United States;
(2) Irrevocable letters of credit issued by a federally insured financial institution authorized to do business in the United States;
(3) Negotiable Treasury securities; or
(4) Surety bonds issued by a company approved by the U.S. Department of the Treasury.
(h) We may accept an alternative form of security approved by us that provides adequate protection for the Indian landowners and us, including but not limited to an escrow agreement or an assigned savings account.
(i) All forms of bonds or alternative security must, if applicable:
(1) State on their face that BIA approval is required for redemption;
(2) Be accompanied by a statement granting full authority to BIA to make an immediate claim upon or sell them if the grantee violates the terms of the right-of-way grant;
(3) Be irrevocable during the term of the bond or alternative security; and
(4) Be automatically renewable during the term of the right-of-way.
(j) We will not accept cash bonds.
(k) The requirements of this section do not apply to Federal, State, Tribal, or local governments who are prohibited by law from providing a bond, insurance, or other security. Federal, State, Tribal, or local governments seeking this exemption must include with their application a certification, including a citation to applicable law, that they are prohibited by law from providing security. Federal, State, Tribal, or local governments must also notify landowners that they are prohibited by law from providing security when they notify the Indian landowners of their application under § 169.107.
[80 FR 72534, Nov. 19, 2015, as amended at 84 FR 42808, Aug. 19, 2019]
Upon satisfaction of the requirements for which the bond was security, or upon expiration, termination, or cancellation of the right-of-way, the grantee may ask BIA in writing to release all or part of the bond or alternative form of security and release the grantee from the obligation to maintain insurance. Upon receiving the grantee's request, BIA will:
(a) Confirm with the tribe, for tribal land or, where feasible, with the Indian landowners for individually owned Indian land, that the grantee has complied with all applicable grant obligations; and
(b) Release all or part of the bond or alternative form of security to the grantee, unless we determine that the bond or security must be redeemed to fulfill the contractual obligations.
(a) If permanent improvements are to be constructed, the right-of-way grant must include due diligence requirements that require the grantee to complete construction of any permanent improvements within the schedule specified in the right-of-way grant or general schedule of construction, and a process for changing the schedule by mutual consent of the parties. If construction does not occur, or is not expected to be completed, within the time period specified in the grant, the grantee must provide the Indian landowners and BIA with an explanation of good cause as to the nature of any delay, the anticipated date of construction of facilities, and evidence of progress toward commencement of construction.
(b) Failure of the grantee to comply with the due diligence requirements of the grant is a violation of the grant and may lead to cancellation of the right-of-way under § 169.405 or § 169.408.
(c) BIA may waive the requirements in this section if we determine, in writing, that a waiver is in the best interest of the Indian landowners.