New Right-of-Way Regulations Take Effect
The first major overhaul of regulations governing rights-of-way (ROWs) over Indian lands since 1968 took effect April 21. The regulations modernize 25 C.F.R. Part 169 to conform to the policy of tribal self-determination. Although federal statutes still require Bureau of Indian Affairs (BIA) approval of ROWs, the new rules give much greater deference to tribal decisions and support tribes’ right to freely negotiate compensation and exercise governmental authority over the ROWs. Predictably, a group of utilities, Western Energy Alliance, sued, arguing that the new rule “is contrary to law because the rule alters property rights, expands tribal jurisdiction, authorizes tribal taxation of rights-of-way, and conflicts with well-established United States Supreme Court precedent.” On April 24, a South Dakota federal court denied Western Alliance’s motion to enjoin implementation of the regulations but the litigation continued.