Bureau of Indian Affairs New Rights-of-Way Rules Provide Clarity and Certainty to Communications Providers

iStock_000000295237LargeWith both Congress and the Administration focused on streamlining federal permitting and promoting Dig Once policies, the Department of Interior's Bureau of Indian Affairs (BIA) published updated rules for access to rights-of-way (ROW) on Indian Lands, including the deployment of communications infrastructure. The new rules replace the existing regulations that were promulgated over 40 years ago and last updated over 30 years ago. Currently, DOI holds roughly 56 million acres of land in trust for both Indian Tribes and individual Indians, which gives it authority over granting ROWs. The new rules "reflect modern requirements for rights-of-way and the need for faster timelines and a more transparent process for BIA approval." These new rules apply to ROWs granted on or after December 21, 2015. For ROWs granted prior to December 21, 2015, the substantive provisions of the rule will not apply; however, the procedural provisions of the updated rule will apply retroactively, except where the procedural provisions conflict with the ROW grant or authorizing statute.

These rules apply to BIA review and approval of access to ROW for electric transmission and distribution systems (including lines, poles, towers, telecommunication, protection, measurement and data acquisition equipment, other items necessary to operate and maintain the system and appurtenant facilities) as well as telecommunications, broadband, and fiber optic lines.

The most noteworthy provisions of the updated rules provide a clear process and timeline for applying for and receiving a ROW. Under the old rules, applicants never knew when to expect a response or what happened to the application once filed. Now, BIA will notify applicants once it receives an application of its completeness and any missing components. Applicants can now expect BIA to grant or deny the ROW within 60 days of receiving a completed application. Simultaneously, BIA will notify the Tribal or landowners of its intent to grant the ROW at least 60 days prior to the grant, giving the Tribal or landowners 30 days to object to the grant of the ROW. BIA also reserves the right to use an additional 30 days to review the application and request the applicant to submit additional information within 15 days. BIA will then grant or deny the application within 30 days of notifying the applicant of needing more time. If BIA denies the application, BIA will provide a written basis for the denial as well as the process for appeal. These provisions provide much needed clarity as to the process and timeline for review, easing the burden and cost of uncertainty to companies. Further, if BIA does not take action under these new timelines, the applicant can first elevate the matter to the BIA Regional Director and then the BIA Director, an appeal process that was not available under the old rules.

Also significant is that BIA deleted the rules specific to telephone lines and communication facilities, removing the size limitations for poles, lines and receiving structures and facilities. Rather, the updated rules expand the definition of Service Lines from telephone, water, electric power, gas and other utilities to include Internet Service. BIA offers additional clarification for service providers, noting that utilities can construct a Service Line from one of the utility's existing ROWs without obtaining a new ROW if the utility serves one structure. If the utility plans to serve more than one structure, then the Service Line will require a ROW. Regardless of the number of structures serves, Service Lines require a Service Line Agreement, which both the utility and the Tribe (or land-owner) must execute and file with BIA prior to constructing Service Lines across Tribal Land or individually-owned land.

In terms of the length of the grant, BIA will defer to a Tribe's determination that the ROW terms are reasonable. For individually owned Indian land, BIA will review the ROW duration to ensure the term is reasonable given the purpose of the ROW. BIA will generally consider a maximum term of up to 50 years for all ROWs other than oil and gas.

The updated rules also include other key provisions:

  • Tribes and individual Native American landowners now have more freedom to negotiate their compensation. A ROW may allow for any payment amount negotiated by the Tribe and BIA will defer to the Tribe. BIA will consider access to broadband services as in-kind compensation.
  • The old rules require anyone seeking to survey the land to request written permission from BIA. The updated rule eliminates this requirement, significantly shorting the time needed to conduct the survey.
  • BIA decisions to grant or deny a ROW will be in writing and BIA will grant the ROW unless the applicant fails to meet the requirements or obtain landowner consent where required, or BIA finds a compelling reason not to grant the ROW in order to protect the best interest of Indian landowners.
  • ROW documents are effective on the date of approval, even if an administrative appeal is filed.
Lastly, the old rules did not require notification of assignments to BIA and the landowner, but under the updated rules, current assignees must notify BIA with documentation of past assignments by April 18, 2016, enabling BIA and the landowners to update their records. This will likely be burdensome for current ROW holders who will now need to determine the chain of title for each ROW.

The new rules represent a huge step forward by clarifying the process and expedited timelines for obtaining ROWs on Tribal lands to deploy communications infrastructure. Should you have any questions about what these new rules mean for your business, please feel free to reach out to Jennifer Holtz at [email protected] or your usual Kelley Drye Communications Practice attorneys.