Federal Register / Vol. 79, No. 116 / Tuesday, June 17, 2014 / Proposed Rules 34455 

V–416 [Amended] 

From Rosewood, OH; INT Rosewood 041° 

and Mansfield, OH, 262° radials; Mansfield; 

to INT Mansfield 045° and Dryer, OH, 123°T/ 

129°M radials. 

* * * * * 

Issued in Washington, DC, on June 11, 

2014. 

Gary A. Norek, 

Manager, Airspace Policy & Regulations 

Group. 

[FR Doc. 2014–14142 Filed 6–16–14; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 169 

[Docket ID: BIA–2014–0001; 

DR.5B711.IA000814] 

RIN 1076–AF20 

Rights-of-Way on Indian Land 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

comprehensively update and streamline 

the process for obtaining BIA grants of 

rights-of-way on Indian land, while 

supporting tribal self-determination and 

self-governance. This proposed rule 

would also further implement the policy 

decisions and approaches established in 

the leasing regulations, which BIA 

finalized in December 2012, by applying 

them to the rights-of-way context where 

applicable. This publication also 

announces the dates and locations for 

tribal consultation sessions to discuss 

this proposed rights-of-way rule. 

DATES: Comments on this rule must be 

received by August 18, 2014. Comments 

on the information collections 

contained in this proposed regulation 

are separate from those on the 

substance of the rule. Comments on the 

information collection burden should be 

received by July 17, 2014 to ensure 

consideration, but must be received no 

later than August 18, 2014. Please see 

the SUPPLEMENTARY INFORMATION section 

of this notice for dates of tribal 

consultation sessions. 

ADDRESSES: You may submit comments 

by any of the following methods: 

—Federal rulemaking portal: http://

www.regulations.gov. The rule is 

listed under the agency name ‘‘Bureau 

of Indian Affairs.’’ The rule has been 

assigned Docket ID: BIA–2014–0001. 

—Email: consultation@bia.gov. Include 

the number 1076–AF20 in the subject 

line. 

—Mail or Hand Delivery: Elizabeth 

Appel, Office of Regulatory Affairs & 

Collaborative Action, U.S. Department 

of the Interior, 1849 C Street NW., MS 

4141, Washington, DC 20240. Include 

the number 1076–AF20 on the 

envelope. 

Please note that we will not consider 

or include in the docket for this 

rulemaking comments received after the 

close of the comment period (see DATES) 

or comments sent to an address other 

than those listed above. 

Comments on the information 

collections contained in this proposed 

regulation are separate from those on 

the substance of the rule. Send 

comments on the information collection 

burden to OMB by facsimile to (202) 

395–5806 or email to the OMB Desk 

Officer for the Department of the 

Interior at OIRA_Submission@

omb.eop.gov. Please send a copy of your 

comments to the person listed in the 

FOR FURTHER INFORMATION CONTACT

section of this notice. 

Please see the SUPPLEMENTARY

INFORMATION section of this notice for 

addresses of tribal consultation sessions. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth Appel, Director, Office of 

Regulatory Affairs & Collaborative 

Action, (202) 273–4680; 

elizabeth.appel@bia.gov. You may 

review the information collection 

request online at http://

www.reginfo.gov. Follow the 

instructions to review Department of the 

Interior collections under review by 

OMB. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary of Rule 

This is a proposed rule to 

comprehensively update and streamline 

the process for obtaining BIA grants of 

rights-of-way on Indian land. The 

current regulations were promulgated in 

1968, and last updated in 1980. In 

December 2012, the Department issued 

final regulations comprehensively 

reforming residential, business, and 

wind and solar leasing on Indian land 

and streamlining the leasing process. 

Given the supportive response to the 

leasing regulatory revisions, we are 

updating 25 CFR 169 (Rights-of-Way) to 

mirror those revisions to the extent 

applicable in the rights-of-way context. 

Highlights of the proposed rights-of-way 

revisions include: 

Æ Eliminating the need to obtain BIA 

consent for surveying in preparation for 

a right-of-way; 

Æ Establishing timelines for BIA 

review of rights-of-way requests; 

Æ Clarifying processes for BIA review 

of right-of-way documents; 

Æ Allowing BIA disapproval only 

where there is a stated compelling 

reason; 

Æ Providing greater deference to 

Tribes on compensation for rights-ofway; 

Æ Clarifying the authority by which 

BIA approves rights-of-way; and 

Æ Eliminating outdated requirements 

specific to different types of rights-ofway. 

Together, these revisions will 

modernize the rights-of-way approval 

process while better supporting Tribal 

self-determination. This rule also 

updates the regulations to be in a 

question-and-answer format, in 

compliance with ‘‘plain language’’ 

requirements. 

II. Summary of All Revisions to 25 CFR 

Part 169 

The following table summarizes 

revisions to part 169, by showing where 

the substance of each section of the 

current rule is in the proposed rule and 

describing the changes. 


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34456 Federal Register / Vol. 79, No. 116 / Tuesday, June 17, 2014 / Proposed Rules 

Current 25 CFR § Current provision Proposed 25 CFR § Description of change 

169.1 ........................... Definitions of ‘‘Secretary,’’ ‘‘individually owned 

land,’’ ‘‘tribe’’, ‘‘tribal land,’’ and ‘‘Government owned land.’’.

169.002 ..................... Revises the definition of ‘‘tribe’’ to be ‘‘Indian 

tribe’’ and to refer to the Federal List Act. 

Simplifies the remaining definitions. Adds 

definitions for ‘‘abandonment,’’ ‘‘assignment,’’ ‘‘avigation hazard easement,’’ ‘‘BIA,’’ 

‘‘compensation,’’ ‘‘constructive notice,’’ 

‘‘easement,’’ ‘‘fractional interest,’’ ‘‘grant,’’ 

‘‘grantee,’’ ‘‘immediate family,’’ ‘‘Indian,’’ 

‘‘Indian land,’’ ‘‘in-kind compensation,’’ 

‘‘legal description,’’ ‘‘LTRO,’’ ‘‘map of definite location,’’ ‘‘market value,’’ ‘‘right-ofway,’’ ‘‘right-of-way document,’’ ‘‘Section 17 

corporation,’’ ‘‘service line,’’ ‘‘trespass,’’ 

‘‘tribal authorization,’’ ‘‘trust account,’’ ‘‘trust 

account encumbrance,’’ ‘‘trust and restricted 

status,’’ ‘‘Uniform Standards for Professional Appraisal Practice (USPAP),’’ and 

‘‘us/we/our.’’ 

169.2(a), (c) ................ Purpose and scope of regulations ................... 169.001 ..................... Updates the purpose of the regulations to provide that BIA will use its general statutory 

authority for granting rights-of-way. 

N/A .............................. N/A ................................................................... 169.003–169.010 ...... New sections. Specify what land part 169 applies to, when a right-of-way is needed, 

what types of rights-of-way are covered by 

part 169, whether part 169 applies to rightsof-way applications submitted before this 

version of the rule, that tribes may compact 

or contract for certain BIA realty functions 

related to rights-of-way, what laws apply to 

rights-of-way, what taxes apply to rights-ofway, and how BIA provides notice of its actions related to rights-of-way. 

169.2(b) ...................... Appeals ............................................................ 169.011 ..................... Adds exceptions to part 2 appeals and clarifies ‘‘interested party’’ to make consistent 

with availability of appeals in the leasing 

context. 

169.3(a) ...................... Tribal consent required .................................... 169.106 ..................... No substantive change. 

169.3(b)–(c) ................ Individual Indian landowner consent required 169.107, 169.108 ...... Adds a requirement for BIA to provide 30-day 

notice to landowners on whose behalf it will 

consent. Reorganizes to establish whom 

BIA can consent on behalf of. Updates to 

comply with statutory authorities that have 

been updated since the last regulatory revision. 

169.4 ........................... Permission to survey ....................................... 169.101(b) ................. Removes the requirement for BIA approval to 

survey, but retains the requirement for obtaining landowner consent to survey. 

169.5 ........................... Application for right-of-way .............................. 169.101–169.102, 

169.121.

Removes requirement for duplicate filing and 

statutory citation. Consolidates provisions 

and provides that they will be issued in the 

grant, rather than requiring grantee to submit them in a stipulation with the application. Clarifies that application must identify 

the affected tract, right-of-way location, purpose, and duration, and ownership of any 

permanent improvements. Adds that the following must accompany the application: 

legal description, bond, and information 

necessary to comply with environmental 

laws. 

N/A .............................. N/A ................................................................... 169.105 ..................... Establishes requirement for due diligence in 

construction of permanent improvements. 

169.6 ........................... Maps. Requires maps of definite location on 

tracing linen or other ‘‘permanent and reproducible material.’’ Requires a separate 

map for each 20 miles, a specific scale, 

and the parcels, sections, townships, and 

ranges affected.

162.102(b) ................. Removes specific requirements for format of 

map of definite location (e.g., tracing linen), 

scale, etc. Adds requirement that map be 

signed by a professional surveyor or engineer. 

169.7 ........................... Field notes. Requires field notes either on 

map or submitted separately.

N/A ............................ Deleted. 


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Current 25 CFR § Current provision Proposed 25 CFR § Description of change 

169.8 ........................... Public survey. Requires terminal of line of 

route to be fixed to nearest corner of public 

survey and, if terminal is on unsurveyed 

land, be connected with corner of public 

survey < 6 miles away.

169.002 ..................... Definition of map of definite location requires 

it to include reference to a public survey. 

169.9 ........................... Connection with natural objects. Requires 

connection with natural object or permanent 

monument if distance to an established corner of the public survey is > 6 miles.

N/A ............................ Deleted. Legal description and map make this 

unnecessary. 

169.10 ......................... Township and section lines. Requires map to 

show distance to nearest corner if line of 

survey crosses a township or section line of 

public survey.

169.002 ..................... Definition of map of definite location requires 

it to include reference to a public survey 

169.11 ......................... Affidavit and certificate. Requires map to include an affidavit by engineer and certificate by applicant on accuracy. Requires 

BIA-built roads transferred to county or 

State to include affidavit by BIA engineer 

and State officer on accuracy.

169.102(b)(2) ............. Maintains the requirement for an engineer to 

sign the map, but adds that a surveyor may 

sign the map instead. Deletes requirement 

for applicant to sign a certificate regarding 

the map’s accuracy, because the rule otherwise requires that the map be accurate. Deletes the section on maps covering BIA 

roads to be transferred to a county or State. 

169.12 ......................... Consideration for right-of-way grants. Requires fair market value and requires the 

Secretary to obtain and advise landowner 

of appraisal information.

169.109–169.111 ...... Provides that the Secretary will defer to the 

tribe’s negotiated compensation for tribal 

land. Maintains requirement for fair market 

value and a valuation for individually owned 

Indian land, but adds exceptions. Allows for 

market value to be determined by several 

methods (in addition to, or instead of, appraisals). 

N/A .............................. N/A ................................................................... 169.112–169.117 ...... New sections. Clarify when compensation 

payments may be due for a right-of-way, allowing for agreements to make payment at 

times other than upon application, require 

the right-of-way grant to specify how payment occurs (direct pay or to BIA) and put 

limits on availability of direct pay, allow for 

non-monetary (e.g., discount internet service) and varying types of compensation, 

clarify whether BIA will notify when a payment is due, and clarify when right-of-way 

grant must provide for compensation reviews or adjustments. 

169.13 ......................... Other damages. Requires grantee to pay all 

damages incident to the survey or construction or maintenance of the facility for which 

the right-of-way is granted.

169.118 ..................... Adds other charges that grantee may be subject to. 

169.14 ......................... Deposit and disbursement of consideration 

and damages. Requires applicant to deposit 

total estimated consideration and damages 

with application. Requires amounts to be 

held in ‘‘special deposit’’ accounts.

169.103 ..................... Requires estimated damages payment to be 

in the form of a bond or alternative security. 

Deletes reference to ‘‘special deposit’’ accounts, because the specific accounts into 

which compensation would be deposited is 

outside the scope of this regulation. 

165.15 ......................... Action on application. Provides that Secretary 

may grant right-of-way, with attached maps 

of definite location. Allows Secretary to 

issue one document for all tracts traversed 

by the right-of-way, or separate documents.

169.119–169.120 ...... Establishes the process and criteria by which 

BIA will grant a right-of-way. Establishes 

deadlines for BIA action. Maintains flexibility 

for Secretary to issue one document or 

separate documents for multiple tracts. 

169.16 ......................... Affidavit of Completion. Requires applicant to 

file an affidavit of completion once a rightof-way is constructed.

N/A ............................ Deleted. 

N/A .............................. N/A ................................................................... 161.122 ..................... New section. Clarifies that a right-of-way grant 

may include a preference for employment 

of tribal members. 

N/A .............................. N/A ................................................................... 161.123 ..................... New section. Clarifies when a new right-ofway is required for a new use within or 

overlapping an existing right-of-way. 

169.17 ......................... Change of location. Requires a new right-ofway, including consent, amended maps, 

etc., if a change from the location in the 

grant is necessary due to engineering difficulties or otherwise.

169.124 ..................... Allows flexibility for BIA to determine whether 

a new right-of-way and/or consent, amended maps, etc., are required based on 

whether the use is provided for or is within 

the same scope of use provided for in the 

original grant. 


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34458 Federal Register / Vol. 79, No. 116 / Tuesday, June 17, 2014 / Proposed Rules 

Current 25 CFR § Current provision Proposed 25 CFR § Description of change 

169.18 ......................... Tenure of approved right-of-way grants. Provides that rights-of-way under 1948 Act 

may be without limitation as to term of 

years, except as stated in the grant, but all 

others may not exceed 50 years, as determined by BIA.

169.201 ..................... Provides guidance to BIA staff for determining 

appropriate duration of a right-of-way based 

on purpose of the right-of-way. Eliminates 

distinction between rights-of-way under the 

1948 Act and others 

169.19 ......................... Renewal of right-of-way grants. Allows applications for renewal where no change in location or status, with consent and consideration. Requires new right-of-way application 

if there is any change to the size, type, or 

location.

169.202 ..................... Allows a renewal without consent if the original grant provides for it. 

N/A .............................. N/A ................................................................... 169.203 ..................... New section. Clarifies when a right-of-way 

may be renewed multiple times. 

N/A .............................. N/A ................................................................... 169.204–169.206 ...... New sections. Clarify the circumstances in 

which a right-of-way may be amended, and 

the process for amending. 

N/A .............................. N/A ................................................................... 169.207–169.209 ...... New sections. Clarify the circumstances in 

which a right-of-way may be assigned, and 

the process for assigning. 

N/A .............................. N/A ................................................................... 169.210–169.212 ...... New sections. Clarify the circumstances in 

which a right-of-way may be mortgaged, 

and the process for mortgaging. 

N/A .............................. N/A ................................................................... 169.301–169.305 ...... New sections. Clarify when a right-of-way is 

effective and must be recorded, what happens if BIA denies the right-of-way or does 

not meet a deadline for issuing a decision 

on a right-of-way, and whether appeal 

bonds are required. 

N/A .............................. N/A ................................................................... 169.401–169.402 ...... New sections. Clarify when BIA may investigate compliance with a right-of-way. 

169.20 ......................... Termination of right-of-way grants. Provides 

that the Secretary may terminate a right-ofway with 30-day notice for certain causes.

169.403–169.405 ...... Allows landowners to provide for negotiated 

remedies, including termination without BIA 

concurrence (where tribe is landowner) or 

with BIA concurrence (where individual Indians are landowners). Provides that BIA will 

consult with the landowners before determining whether to cancel the grant. 

N/A .............................. N/A ................................................................... 169.406–169.407 ...... New sections. Specify what late payment 

charges and fees apply to delinquent payments and how payment rights will be allocated. 

N/A .............................. N/A ................................................................... 169.408–169.409 ...... New sections. Specify the process by which 

BIA will cancel a right-of-way and when 

cancellation is effective. 

N/A .............................. N/A ................................................................... 169.410–169.412 ...... New sections. Specify what BIA will do if a 

grantee remains in possession after a rightof-way expires or is terminated or cancelled, what appeal bond regulations apply 

to cancellation decisions, and what happens if someone uses Indian land without a 

right-of-way or other proper authorization. 

169.21 ......................... Condemnation actions involving individually 

owned lands. Requires that BIA report condemnation actions to Interior.

N/A ............................ Deleted. 

169.22 ......................... Service lines. Requires execution of service 

line agreements. Limits service lines to certain voltage. Requires tribe’s governing 

body to consent to service line agreements 

for tribal land. Requires only a plat or diagram showing location, size and extent of 

line. Requires filing of agreement with Secretary within 30 days of execution.

169.002, 169.501– 

169.505.

Clarifies in definition that a service line is only 

a utility line running from a main line to provide landowners/occupants with utility service and deletes provisions restricting service lines to a specific voltage. 

169.23 ......................... Railroads. Lists specific statutory authorities 

for railroads and other rights-of-way, and includes specific requirements for railroad 

right-of-ways.

N/A ............................ Deleted. These provisions are unnecessary 

because the general right-of-way authority 

in 25 U.S.C. 323–328 is being relied upon, 

rather than specific authorities. 

169.24 ......................... Railroads in Oklahoma. Lists specific statutory 

authorities for railroad rights-of-way in Oklahoma.

N/A ............................ Deleted. These provisions are unnecessary 

because the general right-of-way authority 

in 25 U.S.C. 323–328 is being relied upon, 

rather than specific authorities. 


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Federal Register / Vol. 79, No. 116 / Tuesday, June 17, 2014 / Proposed Rules 34459 

Current 25 CFR § Current provision Proposed 25 CFR § Description of change 

169.25 ......................... Oil and gas pipelines. Lists specific statutory 

authorities and requirements for oil and gas 

pipeline rights-of-way.

N/A ............................ Deleted. These provisions are unnecessary 

because the general right-of-way authority 

in 25 U.S.C. 323–328 is being relied upon, 

rather than specific authorities. Specific requirements for oil and gas pipelines are unnecessary because they are already addressed in applicable State and Federal 

laws. 

169.26 ......................... Telephone and telegraph lines; radio, television, and other communications facilities. 

Lists specific statutory authorities and requirements for telephone and telegraph 

lines, etc.

N/A ............................ Deleted. These provisions are unnecessary 

because the general right-of-way authority 

in 25 U.S.C. 323–328 is being relied upon, 

rather than specific authorities. 

169.27 ......................... Power projects. Lists specific statutory authorities and requirements for power project 

rights-of-way.

N/A ............................ Deleted. These provisions are unnecessary 

because the general right-of-way authority 

in 25 U.S.C. 323–328 is being relied upon, 

rather than specific authorities. 

169.28 ......................... Public highways. Allows State and local authorities to apply under these regulations for 

rights-of-way for open public highways on 

Indian land. Allows authorities in Nebraska 

or Montana to open highways without rightof-way, under specific statutory authority. 

Cross-references 25 CFR 256.

N/A ............................ Deleted. These provisions are unnecessary 

because the general right-of-way authority 

in 25 U.S.C. 323–328 is being relied upon, 

rather than specific authorities. 

The core processes for obtaining 

landowner consent and BIA approval 

are the same as for obtaining a lease. 

The timelines this proposed rule would 

establish for rights-of-way approvals 

mirror those for business leases at 25 

CFR subpart D, allowing for a 60-day 

review of right-of-way applications, and 

30-day review of amendments, 

assignments, and mortgages. If BIA does 

not act within those established 

deadlines, the parties could elevate the 

application to the Regional Director or 

Director of BIA, as appropriate, for 

action. 

We are interested in all comments 

regarding this rule, but also would 

specifically like comment on the 

bonding provisions and whether the 

proposed durations for different types of 

rights-of-way set out in section 169.201 

are appropriate. 

III. Tribal Consultation Sessions 

We will be hosting several tribal 

consultation sessions throughout the 

country to discuss this proposed rule. 

The dates and locations for the 

consultation sessions are as follows: 

Date Time Location Venue 

Tuesday, August 5, 2014 .... 8 a.m.–12 p.m. (Local 

time).

Bismarck, North Dakota .... Bismarck Civic Center, Prairie Rose, Room 101, 315 

S. 5th Street, Bismarck, ND 58504. 

Wednesday, August 6, 2014 1 p.m.–5 p.m. (Local time) Scottsdale, Arizona ........... Talking Stick Resort, 9800 E. Indian Bend Rd., Scottsdale, AZ 85256. 

Thursday, August 7, 2014 ... 1 p.m.–4 p.m. Eastern 

Time.

Teleconference .................. Call-in number: (888) 989–7589, Passcode: 208– 

1244. 

IV. Procedural Requirements 

A. Regulatory Planning and Review 

(E.O. 12866 and 13563) 

Executive Order (E.O.) 12866 provides 

that the Office of Information and 

Regulatory Affairs (OIRA) at the Office 

of Management and Budget (OMB) will 

review all significant rules. OIRA has 

determined that this rule is not 

significant. 

E.O. 13563 reaffirms the principles of 

E.O. 12866 while calling for 

improvements in the nation’s regulatory 

system to promote predictability, to 

reduce uncertainty, and to use the best, 

most innovative, and least burdensome 

tools for achieving regulatory ends. The 

E.O. directs agencies to consider 

regulatory approaches that reduce 

burdens and maintain flexibility and 

freedom of choice for the public where 

these approaches are relevant, feasible, 

and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. This rule is also 

part of the Department’s commitment 

under the Executive Order to reduce the 

number and burden of regulations and 

provide greater notice and clarity to the 

public. 

B. Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). 

C. Small Business Regulatory 

Enforcement Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. It 

will not result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector of 

$100 million or more in any one year. 

The rule’s requirements will not result 

in a major increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions. Nor will 

this rule have significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

the ability of the U.S.-based enterprises 

to compete with foreign-based 


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34460 Federal Register / Vol. 79, No. 116 / Tuesday, June 17, 2014 / Proposed Rules 

enterprises because the rule is limited to 

rights-of-way on Indian land. 

D. Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

tribal governments or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local, or tribal 

governments or the private sector. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

E. Takings (E.O. 12630) 

Under the criteria in Executive Order 

12630, this rule does not affect 

individual property rights protected by 

the Fifth Amendment nor does it 

involves a compensable ‘‘taking.’’ A 

takings implication assessment is 

therefore not required. 

F. Federalism (E.O. 13132) 

Under the criteria in Executive Order 

13132, this rule has no substantial direct 

effect on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. This rule 

only concerns BIA’s grant of rights-ofway on Indian land. 

G. Civil Justice Reform (E.O. 12988) 

This rule complies with the 

requirements of Executive Order 12988. 

Specifically, this rule has been reviewed 

to eliminate errors and ambiguity and 

written to minimize litigation; and is 

written in clear language and contains 

clear legal standards. 

H. Consultation With Indian Tribes 

(E.O. 13175) 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments,’’ Executive Order 13175 

(59 FR 22951, November 6, 2000), and 

512 DM 2, we have evaluated the 

potential effects on federally recognized 

Indian tribes and Indian trust assets. We 

will be consulting with Indian tribes 

during the public comment period on 

this rule. 

I. Paperwork Reduction Act 

This rule contains information 

collections requiring approval under the 

Paperwork Reduction Act (PRA), 44 

U.S.C. 3501 et seq. The Department is 

seeking approval for a new OMB 

Control Number. 

OMB Control Number: 1076–NEW. 

Title: Rights-of-Way on Indian Land. 

Brief Description of Collection: This 

information collection requires 

applicants for, and recipients of, rightof-way grants to cross Indian land to 

submit information to the Bureau of 

Indian Affairs. 

Type of Review: Existing collection in 

use without OMB control number. 

Respondents: Individuals and entities. 

Number of Respondents: 550 on 

average (each year). 

Number of Responses: 3,300 on 

average (each year). 

Frequency of Response: On occasion. 

Estimated Time per Response: 1 hour 

(for applications); 0.5 hours (for 

responses to notices of violation); 0.5 

hours (for responses to trespass notices 

of violations); and 0.25 hours (for filing 

service line agreements). 

Estimated Total Annual Hour Burden: 

2,500 hours. 

Estimated Total Non-Hour Cost: 

$2,200,000. 

J. National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment 

because these are ‘‘regulations . . . 

whose environmental effects are too 

broad, speculative, or conjectural to 

lend themselves to meaningful analysis 

and will later be subject to the NEPA 

process, either collectively or case-bycase.’’ 43 CFR 46.210(j). No 

extraordinary circumstances exist that 

would require greater NEPA review. 

K. Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A Statement of Energy 

Effects is not required. 

L. Clarity of This Regulation 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the 

‘‘COMMENTS’’ section. To better help 

us revise the rule, your comments 

should be as specific as possible. For 

example, you should tell us the 

numbers of the sections or paragraphs 

that are unclearly written, which 

sections or sentences are too long, the 

sections where you believe lists or 

tables would be useful, etc. 

M. Public Availability of Comments 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

List of Subjects in 25 CFR Part 169 

Indians—lands, Rights-of-way. 

For the reasons stated in the 

preamble, the Department of the 

Interior, Bureau of Indian Affairs, 

proposes to revise 25 CFR part 169 to 

read as follows: 

PART 169—RIGHTS-OF-WAY OVER 

INDIAN LAND 

Subpart A—Purpose, Definitions, General 

Provisions 

Sec. 

169.001 What is the purpose of this part? 

169.002 What terms do I need to know? 

169.003 To what land does this part apply? 

169.004 When do I need a right-of-way to 

authorize possession over or across 

Indian land? 

169.005 What types of rights-of-way does 

this part cover? 

169.006 Does this part apply to right-of-way 

grants I submitted for approval before 

[EFFECTIVE DATE OF REGULATIONS]? 

169.007 May tribes administer this part on 

BIA’s behalf? 

169.008 What laws apply to rights-of-way 

approved under this part? 

169.009 What taxes apply to rights-of-way 

approved under this part? 

169.010 How does BIA provide notice to 

the parties to a right-of-way? 

169.011 May decisions under this part be 

appealed? 

169.012 How does the Paperwork 

Reduction Act affect this part? 

Subpart B—Obtaining a Right-of-Way 

Application 

169.101 How do I obtain a right-of-way 

across tribal or individually owned 

Indian land? 

169.102 What must an application for a 

right-of-way include? 

169.103 What bond must accompany the 

application? 

169.104 What is the release process for a 

performance bond or alternate form of 

security? 

169.105 What requirements for due 

diligence must a right-of-way grant 

include? 


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Consent Requirements 

169.106 Must I obtain tribal consent for a 

right-of-way across tribal land? 

169.107 Must I obtain individual Indian 

landowners’ consent to a grant of rightof-way across individually owned land? 

169.108 Who is authorized to consent to a 

right-of-way? 

Compensation Requirements 

169.109 How much monetary compensation 

must be paid for a right-of-way affecting 

tribal land? 

169.110 How much monetary compensation 

must be paid for a right-of-way affecting 

individually owned Indian land? 

169.111 How will BIA determine market 

value for a right-of-way? 

169.112 When are monetary compensation 

payments due under a right-of-way? 

169.113 Must a right-of-way specify who 

receives monetary compensation 

payments? 

169.114 What form of monetary 

compensation payment is acceptable 

under a right-of-way? 

169.115 May the right-of-way provide for 

non-monetary or varying types of 

compensation? 

169.116 Will BIA notify a grantee when a 

payment is due for a right-of-way? 

169.117 Must a right-of-way grant provide 

for compensation reviews or 

adjustments? 

169.118 What other types of payments are 

required for a right-of-way? 

Grants of Rights-of-Way 

169.119 What is the process for BIA to grant 

a right-of-way? 

169.120 How will BIA determine whether 

to grant a right-of-way? 

169.121 What will the grant of right-of-way 

contain? 

169.122 May a right-of-way contain a 

preference consistent with tribal law for 

employment of tribal members? 

169.123 Is a new right-of-way grant 

required for a new use within or 

overlapping an existing right-of-way? 

169.124 What is required if the location 

described in the original application and 

grant differs from the construction 

location? 

Subpart C—Term, Renewals, Amendments, 

Assignments, Mortgages 

Term & Renewals 

169.201 How long may the term of a rightof-way grant be? 

169.202 Under what circumstances will a 

grant of right-of-way be renewed? 

169.203 May a right-of-way be renewed 

multiple times? 

Amendments 

169.204 May a grantee amend a right-ofway? 

169.205 What is the approval process for an 

amendment of a right-of-way? 

169.206 How will BIA decide whether to 

approve an amendment of a right-ofway? 

Assignments 

169.207 May a grantee assign a right-ofway? 

169.208 What is the approval process for an 

assignment of a right-of-way? 

169.209 How will BIA decide whether to 

approve an assignment of a right-of-way? 

Mortgages 

169.210 May a grantee mortgage a right-ofway? 

169.211 What is the approval process for a 

mortgage of a right-of-way? 

169.212 How will BIA decide whether to 

approve a mortgage of a right-of-way? 

Subpart D—Effectiveness 

169.301 When will a right-of-way document 

be effective? 

169.302 Must a right-of-way be recorded? 

169.303 What happens if BIA denies a 

right-of-way document? 

169.304 What happens if BIA does not meet 

a deadline for issuing a decision on a 

right-of-way document? 

169.305 Will BIA require an appeal bond 

for an appeal of a decision on a right-ofway document? 

Subpart E—Compliance and Enforcement 

169.401 What is the purpose and scope of 

this subpart? 

169.402 May BIA investigate compliance 

with a right-of-way? 

169.403 May a right-of-way provide for 

negotiated remedies if there is a 

violation? 

169.404 What will BIA do about a violation 

of a right-of-way grant? 

169.405 What will BIA do if the grantee 

does not cure a violation of a right-ofway grant on time? 

169.406 Will late payment charges or 

special fees apply to delinquent 

payments due under a right-of-way 

grant? 

169.407 How will payment rights relating to 

a right-of-way grant be allocated? 

169.408 What is the process for cancelling 

a right-of-way? 

169.409 When will a cancellation of a rightof-way grant be effective? 

169.410 What will BIA do if a grantee 

remains in possession after a right-ofway expires or is terminated or 

cancelled? 

169.411 Will BIA appeal bond regulations 

apply to cancellation decisions involving 

right-of-way grants? 

169.412 What if an individual or entity 

takes possession or uses Indian land 

without a right-of-way or other proper 

authorization? 

Subpart F—Service Line Agreements 

169.501 Is a right-of-way required for 

service lines? 

169.502 What are the consent requirements 

for service line agreements? 

169.503 Is a valuation required for service 

line agreements? 

169.504 Must I file service line agreements 

with the BIA? 

Authority: 5 U.S.C. 301; 62 Stat. 17 (25 

U.S.C. 323–328), 25 U.S.C. 2218, and other 

acts cited in the text. 

Subpart A—Purpose, Definitions, 

General Provisions 

§ 169.001 What is the purpose of this part? 

(a) This part is intended to streamline 

the procedures and conditions under 

which we will approve (i.e., grant) 

rights-of-way over and across tribal 

lands, individually owned Indian lands, 

and Government-owned lands, by 

providing for the use of the broad 

authority under 25 U.S.C. 323–328, 

rather than the limited authorities under 

other statutes. 

(b) This part specifies: 

(1) Conditions and authorities under 

which we will approve rights-of-way on 

or across Indian land; 

(2) How to obtain a right-of-way; 

(3) Terms and conditions required in 

rights-of-way; 

(4) How we administer and enforce 

rights-of-ways; 

(5) How to renew, amend, assign, and 

mortgage rights-of-way; and 

(6) Whether rights-of-way are required 

for service line agreements. 

(c) This part does not cover rights-ofway on or across tribal lands within a 

reservation for the purpose of Federal 

Power Act projects, such as 

constructing, operating, or maintaining 

dams, water conduits, reservoirs, 

powerhouses, transmission lines or 

other works which must constitute a 

part of any project for which a license 

is required by the Federal Power Act. 

(1) The Federal Power Act provides 

that any license that must be issued to 

use tribal lands within a reservation 

must be subject to and contain such 

conditions as the Secretary deems 

necessary for the adequate protection 

and utilization of such lands (16 U.S.C. 

797(e)). 

(2) In the case of tribal lands 

belonging to a tribe organized under the 

Act of June 18, 1934 (48 Stat. 984), the 

Federal Power Act requires that annual 

charges for the use of such tribal lands 

under any license issued by the Federal 

Energy Regulatory Commission must be 

subject to the approval of the tribe (16 

U.S.C. 803(e)). 

(d) This part does not apply to grants 

of rights-of-way on tribal land under a 

special act of Congress authorizing 

grants without our approval under 

certain conditions. 

§ 169.002 What terms do I need to know? 

Abandonment means the grantee has 

affirmatively relinquished a right-of-way 

(as opposed to relinquishing through 

non-use). 

Assignment means an agreement 

between a grantee and an assignee, 

whereby the assignee acquires all or part 

of the grantee’s rights, and assumes all 


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of the grantee’s obligations under a 

grant. 

Avigation hazard easement means the 

right, acquired by government through 

purchase or condemnation from the 

owner of land adjacent to an airport, to 

the use of the air space above a specific 

height for the flight of aircraft. 

BIA means the Secretary of the 

Interior or the Bureau of Indian Affairs 

within the Department of the Interior 

and any tribe acting on behalf of the 

Secretary or BIA under § 169.007 of this 

part. 

Compensation means something 

bargained for that is fair and reasonable 

under the circumstances of the 

agreement. 

Constructive notice means notice: 

(1) Posted at the tribal government 

office, tribal community building, and/ 

or the United States Post Office; and 

(2) Published in the local 

newspaper(s) nearest to the affected 

land and/or announced on a local radio 

station(s). 

Easement means an interest in land 

owned by another person, consisting of 

the right to use or control, for a specific 

limited purpose, the land, or an area 

above or below it. 

Encumbered account means a trust 

fund account where some portion of the 

proceeds are obligated to another party. 

Fractional interest means an 

undivided interest in Indian land 

owned as tenancy in common by 

individual Indian or tribal landowners 

and/or fee owners. 

Government land means any tract, or 

interest therein, in which the surface 

estate is owned and administered by the 

United States, not including Indian 

land. 

Grant means the formal transfer of a 

right-of-way interest by the Secretary’s 

approval. 

Grantee means a person or entity to 

whom the Secretary grants a right-ofway. 

Immediate family means, in the 

absence of a definition under applicable 

tribal law, a spouse, brother, sister, aunt, 

uncle, niece, nephew, first cousin, lineal 

ancestor, lineal descendant, or member 

of the household. 

Indian means: 

(1) Any person who is a member of 

any Indian tribe, is eligible to become a 

member of any Indian tribe, or is an 

owner as of October 27, 2004, of a trust 

or restricted interest in land; 

(2) Any person meeting the definition 

of Indian under the Indian 

Reorganization Act (25 U.S.C. 479) and 

the regulations promulgated thereunder; 

and 

(3) With respect to the inheritance 

and ownership of trust or restricted land 

in the State of California under 25 

U.S.C. 2206, any person described in 

paragraph (1) or (2) of this definition or 

any person who owns a trust or 

restricted interest in a parcel of such 

land in that State. 

Indian land means any tract in which 

any interest in the surface estate is 

owned by a tribe or individual Indian in 

trust or restricted status and includes 

both individually owned Indian land 

and tribal land. 

Indian landowner means a tribe or 

individual Indian who owns an interest 

in Indian land. 

Indian tribe or tribe means an Indian 

tribe under section 102 of the Federally 

Recognized Indian Tribe List Act of 

1994 (25 U.S.C. 479a). 

Individually owned Indian land 

means any tract, or interest therein, in 

which the surface estate is owned by an 

individual Indian in trust or restricted 

status. 

In-kind compensation means payment 

is in goods or services rather than 

money. 

Legal description means that part of 

the conveyance document of land or 

interest in land, which identifies the 

land or interest to be affected. 

LTRO means the Land Titles and 

Records Office of BIA. 

Map of definite location means a 

survey plat showing the location, size, 

and extent of the right-of-way and other 

related parcels, with respect to each 

affected parcel of individually owned 

land, tribal land, or Government land 

and with respect to the public surveys 

under 25 U.S.C. 176, 43 U.S.C. 2, and 

1764. 

Market value means the amount of 

compensation that a right-of-way would 

most probably command in an open and 

competitive market. 

Right-of-way means a legal right to 

cross tribal land, individually owned 

Indian land, or Government land for a 

specific purpose, including but not 

limited to building and operating a line 

or road. This term may also refer to the 

land subject to the grant of right-of-way. 

Right-of-way document means a rightof-way grant, renewal, amendment, 

assignment, or mortgage of a right-ofway. 

Secretary means the Secretary of the 

Interior or an authorized representative. 

Section 17 corporation means an 

Indian corporation federally chartered 

under section 17 of the Act of June 18, 

1934, 25 U.S.C. 476. 

Service line means a utility line 

running from a main line that is used 

only for supplying owners or authorized 

occupants or users of land with 

telephone, water, electricity, gas, 

internet service, or other home utility 

service. 

Trespass means any unauthorized 

occupancy, use of, or action on tribal or 

individually owned Indian land. 

Tribal authorization means a duly 

adopted tribal resolution, tribal 

ordinance, or other appropriate tribal 

document authorizing the specified 

action. 

Tribal land means any tract, or 

interest therein, in which the surface 

estate is owned by one or more tribes in 

trust or restricted status, and includes 

such lands reserved for BIA 

administrative purposes. The term also 

includes the surface estate of lands held 

in trust for an Indian corporation 

chartered under section 17 of the Act of 

June 18, 1934 (48 Stat. 988; 25 U.S.C. 

477). 

Trust account means a tribal account 

or Individual Indian Money (IIM) 

account for trust funds maintained by 

the Secretary. 

Trust or restricted status means: 

(1) That the United States holds title 

to the tract or interest in trust for the 

benefit of one or more tribes or 

individual Indians; or 

(2) That one or more tribes or 

individual Indians holds title to the 

tract or interest, but can alienate or 

encumber it only with the approval of 

the United States because of limitations 

in the conveyance instrument under 

Federal law or limitations in Federal 

law. 

Uniform Standards of Professional 

Appraisal Practice (USPAP) means the 

standards promulgated by the Appraisal 

Standards Board of the Appraisal 

Foundation to establish requirements 

and procedures for professional real 

property appraisal practice. 

Us/we/our means the BIA. 

§ 169.003 To what land does this part 

apply? 

(a) This part applies to Indian land 

and Government land. 

(1) We will not take any action on a 

right-of-way across fee land or collect 

compensation on behalf of fee interest 

owners. We will not condition our grant 

of a right-of-way across Indian land or 

Government land on the applicant 

having obtained a right-of-way from the 

owners of any fee interests. The 

applicant will be responsible for 

negotiating directly with and making 

any payments directly to the owners of 

any fee interests that may exist in the 

property on which the right-of-way is 

granted. 

(2) We will not include the fee 

interests in a tract in calculating the 

applicable percentage of interests 

required for consent to a right-of-way. 


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(b) This paragraph (b) applies if there 

is a life estate on the land proposed to 

be subject to a right-of-way. 

(1) Unless otherwise provided in a 

will creating the life estate, when all of 

the trust or restricted interests in a tract 

are subject to the same life estate 

(created by operation of law), the life 

tenant may grant a right-of-way over the 

land without the consent of the owners 

of the remainder interests or our 

approval, for the duration of the life 

estate. 

(i) The right-of-way will terminate 

upon the expiration of the life estate. 

(ii) The life tenant must record the 

right-of-way in the LTRO. 

(iii) The grantee must pay 

compensation directly to the life tenant 

under the terms of the right-of-way 

unless the whereabouts of the life tenant 

are unknown, in which case we may 

collect compensation on behalf of the 

life tenant. 

(iv) We may monitor the use of the 

land, as appropriate, and will enforce 

the terms of the right-of-way on behalf 

of the owners of the remainder interests, 

but will not be responsible for enforcing 

the right-of-way on behalf of the life 

tenant. 

(v) We will not grant a right-of-way on 

behalf of the owners of the remainder 

interests or join in a right-of-way 

granted by the life tenant on behalf of 

the owners of the remainder interests 

except as needed to preserve the value 

of the land. 

(2) Unless otherwise provided in a 

will creating the life estate, when less 

than all of the trust or restricted 

interests in a tract are subject to a 

particular life estate (by operation of 

law), the life tenant may grant a rightof-way for his or her interest without the 

consent of the owners of the remainder 

interests, for the duration of the life 

estate, but the applicant must obtain the 

consent of the co-owners and our 

approval. 

(i) The right-of-way over the life 

interest will terminate upon the 

expiration of the life estate. 

(ii) We will not grant a right-of-way 

on the life tenant’s behalf. 

(iii) The right-of-way must provide 

that the grantee pays the life tenant 

directly, unless the life tenant’s 

whereabouts are unknown in which 

case we may collect compensation on 

behalf of the life tenant. 

(iv) The right-of-way must be 

recorded in the LTRO. 

(v) We may monitor the use of the 

land, as appropriate, and will enforce 

the terms of the right-of-way on behalf 

of the owners of the remainder interests, 

but will not be responsible for enforcing 

the right-of-way on behalf of the life 

tenant. 

(3) We may grant a right-of-way for 

longer than the duration of a life estate 

with the consent of a majority of the 

owners of the remainder interests, and 

may consent on behalf of undetermined 

owners of remainder interests. 

(4) Unless otherwise provided in a 

will creating the life estate, where the 

owners of the remainder interests and 

the life tenant have not entered into a 

right-of-way or other written agreement 

approved by the Secretary providing for 

the distribution of rent monies under 

the right-of-way, the life tenant will 

receive payment in accordance with the 

distribution and calculation scheme set 

forth in Part 179 of this chapter. 

(5) The life tenant may not cause or 

allow permanent injury to the land. 

(6) The life tenant must provide a 

copy of their right-of-way consent to us 

and must record any right-of-way 

granted under paragraph (b)(1) of this 

section in the LTRO. 

§ 169.004 When do I need a right-of-way to 

authorize possession over or across Indian 

land? 

(a) You need an approved right-ofway under this part before crossing 

Indian land if you meet one of the 

criteria in the following table, unless 

you are authorized by a land use 

agreement not subject to this part (e.g., 

under 25 CFR part 84) or a lease under 

25 CFR part 162, 211, 212, 225, or 

similar, tribe-specific authority. 

If you are . . . then you must obtain a right-of-way under this part . . . 

(1) A person or legal entity (including an independent legal entity 

owned and operated by a tribe or Federal, State, or local governmental entity) who is not an owner of the Indian land.

from us, with the consent of the owners of the majority interest in the 

land before crossing the land or any portion thereof. 

(2) An Indian landowner of a fractional interest in the land ..................... from us, with the consent of the owners of other trust and restricted interests in the land, totaling at least a majority interest, unless all of 

the owners have given you permission to cross without a right-ofway. 

(b) You do not need a right-of-way to 

cross Indian land if: 

(1) You are an Indian landowner who 

owns 100 percent of the trust or 

restricted interests in the land; or 

(2) You meet any of the criteria in the 

following table. 

You do not need a right-of-way if you are . . . but the following conditions apply . . . 

(i) A parent or guardian of a minor child who owns 100 percent of the 

trust or restricted interests in the land.

We may require you to provide evidence of a direct benefit to the 

minor child and when the child is no longer a minor, you must obtain 

a right-of-way to authorize continued possession. 

(ii) Authorized by a service line agreement to cross the land ................. You must file the agreement with us under § 169.504. 

(iii) Otherwise authorized by law (e.g., a statute, judicial order, or common law authorizes access).You must comply with the requirements of the applicable statute, judicial order, or common law. 

§ 169.005 What types of rights-of-way 

does this part cover? 

(a) This part covers rights-of-way over 

and across Indian or Government land, 

for uses including but not limited to the 

following: 

(1) Railroads; 

(2) Public roads and highways; 

(3) Access roads; 

(4) Service roads and trails essential 

to any other right-of-way purpose; 

(5) Public and community water lines 

(including pumping stations and 

appurtenant facilities); 

(6) Public sanitary and storm sewer 

lines (including sewage disposal and 

treatment plant lines); 

(7) Water control and use projects 

(including but not limited to, flowage 

easements, irrigation ditches and canals, 

and water treatment plant lines); 

(8) Oil and gas pipelines; 


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(9) Electric transmission and 

distribution lines (including poles, 

towers, and appurtenant facilities); 

(10) Telecommunications, broadband, 

fiber optic lines; 

(11) Avigation hazard easements; or 

(12) Conservation easements not 

covered by 25 CFR 84, Encumbrances of 

Tribal Land—Contract Approvals, or 25 

CFR 162, Leases and Permits. 

(b) BIA will grant rights-of-way using 

the authority in 25 U.S.C. 323–328, and 

relying on supplementary authority 

such as 25 U.S.C. 2218, where 

appropriate, and this part covers all 

rights-of-way granted under that 

statutory authority. This part also covers 

existing rights-of-way that were granted 

under other statutory authorities prior to 

the effective date of this rule, except 

that if the provisions of the preexisting 

right-of-way document conflict with this 

part, the provisions of the preexisting 

right-of-way document govern. 

§ 169.006 Does this part apply to right-ofway grants I submitted for approval before 

[EFFECTIVE DATE OF REGULATIONS]? 

This part applies to all right-of-way 

documents. If you submitted your rightof-way document to us for granting or 

approval before [EFFECTIVE DATE OF 

REGULATIONS], the qualifications in 

paragraphs (a) and (b) of this section 

also apply. 

(a) If we granted or approved your 

right-of-way document before 

[EFFECTIVE DATE OF 

REGULATIONS], this part applies to 

that right-of-way document; however, if 

the provisions of the right-of-way 

document conflict with this part, the 

provisions of the right-of-way document 

govern. 

(b) If you submitted a right-of-way 

document but we did not approve or 

grant it before [EFFECTIVE DATE OF 

REGULATIONS], then: 

(1) We will review the right-of-way 

document under the regulations in 

effect at the time of your submission; 

and 

(2) Once we grant or approve the 

right-of-way document, this part applies 

to that right-of-way document; however, 

if the provisions of the right-of-way 

document conflict with this part, the 

provisions of the right-of-way document 

govern. 

§ 169.007 May tribes administer this part 

on BIA’s behalf? 

A tribe or tribal organization may 

contract or compact under the Indian 

Self-Determination and Education 

Assistance Act (25 U.S.C. 450f et seq.) 

to administer any portion of this part 

that is not a grant, approval, or 

disapproval of a right-of-way document, 

waiver of a requirement for right-of-way 

grant or approval (including but not 

limited to waivers of market value and 

valuation), cancellation of a right-ofway, or an appeal. 

§ 169.008 What laws apply to rights-of-way 

approved under this part? 

(a) In addition to the regulations in 

this part, rights-of-way approved under 

this part: 

(1) Are subject to all applicable 

Federal laws; 

(2) Are subject to tribal law, subject to 

paragraph (b) of this section; and 

(3) Are not subject to State law or the 

law of a political subdivision thereof 

except that: 

(i) State law or the law of a political 

subdivision thereof may apply in the 

specific areas and circumstances in 

Indian country where the Indian tribe 

with jurisdiction has made it expressly 

applicable; 

(ii) State law may apply in the 

specific areas and circumstances in 

Indian country where Congress has 

made it expressly applicable; and 

(iii) State law may apply where a 

Federal court has expressly applied 

State law to a specific area or 

circumstance in Indian country in the 

absence of Federal or tribal law. 

(b) Tribal laws generally apply to land 

under the jurisdiction of the tribe 

enacting the laws, except to the extent 

that those tribal laws are inconsistent 

with these regulations or other 

applicable Federal law. However, these 

regulations may be superseded or 

modified by tribal laws, as long as: 

(1) The tribe has notified us of the 

superseding or modifying effect of the 

tribal laws; 

(2) The superseding or modifying of 

the regulation would not violate a 

Federal statute or judicial decision, or 

conflict with our general trust 

responsibility under Federal law; and 

(3) The superseding or modifying of 

the regulation applies only to tribal 

land. 

(c) Unless prohibited by Federal law, 

the parties to a right-of-way may subject 

that right-of-way to State or local law in 

the absence of Federal or tribal law, if 

the Indian landowners expressly agree, 

in writing, to the application of State or 

local law. 

(d) An agreement under paragraph (c) 

of this section does not waive a tribe’s 

sovereign immunity unless the tribe 

expressly states its intention to waive 

sovereign immunity in its consent to the 

right-of-way on tribal land. 

(e) A right-of-way is an interest in 

land, but title does not pass to the 

grantee. Unless otherwise expressly 

stated in its consent to the right-of-way 

for tribal land, or in a tribal 

authorization for a right-of-way for 

individually-owned Indian land, the 

Secretary’s grant of a right-of-way does 

not diminish to any extent: 

(1) The Indian tribe’s jurisdiction over 

the land subject to the right-of-way; 

(2) The power of the Indian tribe to 

tax the land, any improvements on the 

land, or any activity related to, and not 

inconsistent with, the right-of-way; 

(3) The Indian tribe’s authority to 

enforce tribal law of general or 

particular application on the land 

subject to the right-of-way, as if there 

were no grant of right-of-way; 

(4) The Indian tribe’s inherent 

sovereign power to exercise civil 

jurisdiction over non-members on tribal 

land by regulating, through taxation, 

licensing, or other means, the activities 

of non-members who enter into 

consensual relationships with the 

Indian tribe or its members; or 

(5) The character of the land subject 

to the right-of-way as Indian country 

under 18 U.S.C. 1151. 

§ 169.009 What taxes apply to rights-ofway approved under this part? 

(a) Subject only to applicable Federal 

law, permanent improvements in a 

right-of-way, without regard to 

ownership of those improvements, are 

not subject to any fee, tax, assessment, 

levy, or other charge imposed by any 

State or political subdivision of a State. 

Improvements may be subject to 

taxation by the Indian tribe with 

jurisdiction. 

(b) Subject only to applicable Federal 

law, activities under a right-of-way grant 

are not subject to any fee, tax, 

assessment, levy, or other charge (e.g., 

business use, privilege, public utility, 

excise, gross revenue taxes) imposed by 

any State or political subdivision of a 

State. Activities may be subject to 

taxation by the Indian tribe with 

jurisdiction. 

(c) Subject only to applicable Federal 

law, the right-of-way or possessory 

interest is not subject to any fee, tax, 

assessment, levy, or other charge 

imposed by any State or political 

subdivision of a State. Possessory 

interests may be subject to taxation by 

the Indian tribe with jurisdiction. 

§ 169.010 How does BIA provide notice to 

the parties to a right-of-way? 

(a) When this part requires us to 

notify the parties of the status of our 

review of a right-of-way document 

(including but not limited to, providing 

notice to the parties of the date of 

receipt, informing the parties of the 

need for additional review time, and 

informing the parties that an application 

package is not complete): 


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(1) For rights-of-way affecting tribal 

land, we will notify the grantee and the 

tribe by mail; and 

(2) For rights-of-way affecting 

individually owned Indian land, we 

will notify the grantee by mail and, 

where feasible, the individual Indian 

landowners by constructive notice or 

mail. 

(b) When this part requires us to 

notify the parties of our determination 

to approve or disapprove a right-of-way 

document, and to provide any right of 

appeal: 

(1) For rights-of-way affecting tribal 

land, we will notify the applicant and 

the tribe by mail; and 

(2) For rights-of-way affecting 

individually owned Indian land, we 

will notify the applicant by mail and the 

individual Indian landowners by 

constructive notice, mail, or electronic 

mail. 

§ 169.011 May decisions under this part be 

appealed? 

(a) Appeals from BIA decisions under 

this part may be taken under part 2 of 

this chapter, except: 

(1) Our decision to disapprove a rightof-way may be appealed only by an 

Indian landowner. 

(2) Our decision to disapprove any 

other right-of-way document may be 

appealed only by the Indian landowners 

or the applicant. 

(b) For purposes of appeals from BIA 

decisions under this part, ‘‘interested 

party’’ is defined as any person whose 

own direct economic interest is 

adversely affected by an action or 

decision. 

§ 169.012 How does the Paperwork 

Reduction Act affect this part? 

The collections of information in this 

part have been approved by the Office 

of Management and Budget under 44 

U.S.C. 3501 et seq. and assigned OMB 

Control Number 1076–NEW. Response 

is required to obtain a benefit. A Federal 

agency may not conduct or sponsor, and 

you are not required to respond to, a 

collection of information unless it 

displays a currently valid OMB Control 

Number. 

Subpart B—Obtaining a Right-of-Way 

Application 

§ 169.101 How do I obtain a right-of-way 

across tribal or individually owned Indian 

land? 

(a) To obtain a right-of-way across 

tribal or individually owned Indian 

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 in the following manner 

before accessing the land, but our 

approval to access is not required. 

(1) For tribal land, you must obtain 

written authorization or a permit from 

the tribe. 

(2) For individually owned Indian 

land, you must notify all Indian 

landowners and obtain the consent of 

the Indian landowners of the majority 

interest under § 169.107. 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. 

(3) 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. 

§ 169.102 What must an application for a 

right-of-way include? 

(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 rightof-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 rightof-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 and existing facilities 

adjacent to the proposed project, signed 

by a professional surveyor or engineer 

(this requirement does not apply to 

easements covering the entire tract of 

land); 

(3) A bond meeting the requirements 

of § 169.103; 

(4) Record of consent for the right-ofway meeting the requirements of 

§ 169.106 for tribal land, and § 169.107 

for individually owned Indian land; 

(5) If applicable, a valuation meeting 

the requirements of § 169.111; 

(6) 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; 

(7) Environmental and archeological 

reports, surveys, and site assessments, 

as needed to facilitate compliance with 

applicable Federal and tribal 

environmental and land use 

requirements. 

(c) There is no standard application 

form. 

§ 169.103 What bond must accompany the 

application? 

(a) You must include payment of a 

performance bond or alternative form of 

security with your application for a 

right-of-way in an amount that covers: 

(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 operation and maintenance 

charges for any land located within an 

irrigation project; and 

(4) The restoration and reclamation of 

the premises to their condition at the 

start of the right-of-way or some other 

specified condition. 

(b) The performance 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. 

(c) The grant will specify the 

conditions under which we may adjust 

the security or performance bond 

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 performance 

bond or alternative form of security will 

be enforceable, and that the surety will 

be able to perform the guaranteed 

obligations. 

(e) The performance bond or other 

security instrument must require the 

surety to provide notice to us at least 60 

days before canceling a performance 

bond or other security. This will allow 

us to notify the grantee of its obligation 

to provide a substitute performance 

bond or other security before the 

cancellation date. Failure to provide a 

substitute performance bond or security 

is a violation of the right-of-way. 


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(f) We may waive the requirement for 

a performance bond or alternative form 

of security if the Indian landowners of 

the majority of the interests request it 

and we determine a waiver is in the 

Indian landowners’ best interest. For 

tribal land, we will defer, to the 

maximum extent possible, to the tribe’s 

determination that a waiver of a 

performance bond or alternative form of 

security is in its best interest. 

(g) We will accept a performance 

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 and 

assigned savings account. 

(i) All forms of performance bonds or 

alternative security must, if applicable: 

(1) Indicate 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 right-of-way; 

(3) Be irrevocable during the term of 

the performance bond or alternative 

security; and 

(4) Be automatically renewable during 

the term of the right-of-way. 

(j) We will not accept cash bonds. 

§ 169.104 What is the release process for 

a performance bond or alternative form of 

security? 

Upon expiration, termination, or 

cancellation of the right-of-way, the 

grantee may ask BIA in writing to 

release the performance bond or 

alternative form of security. 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 grant obligations; and 

(b) Release the performance 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. 

§ 169.105 What requirements for due 

diligence must a right-of-way grant include? 

(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-ofway under § 169.408. 

(c) BIA may waive the requirements 

in this section if such waiver is in the 

best interest of the Indian landowners. 

Consent Requirements 

§ 169.106 Must I obtain tribal consent for 

a right-of-way across tribal land? 

The applicant must obtain tribal 

consent, in the form of a tribal 

authorization, to a grant of right-of-way 

across tribal land. 

§ 169.107 Must I obtain individual Indian 

landowners’ consent to a grant of right-ofway across individually-owned land? 

(a) Except as provided in paragraph 

(b) of this section, the applicant must 

notify all individual Indian landowners 

and must obtain consent from the 

owners of the majority interest in each 

tract affected by the grant of right-ofway. 

(b) We may issue the grant of right-ofway without the consent of any of the 

individual Indian owners if: 

(1) The owners of interests in the land 

are so numerous that it would be 

impracticable to obtain consent; 

(2) We determine the grant will cause 

no substantial injury to the land or any 

landowner; 

(3) We determine that all of the 

landowners will be adequately 

compensated for consideration and any 

damages that may arise from a grant of 

right-of-way; and 

(4) We provide notice of our intent to 

issue the grant of right-of-way to all of 

the owners at least 30 days prior to the 

date of the grant using the procedures in 

§ 169.010. 

(c) For the purposes of this section, 

the owners of interests in the land are 

so numerous that it would be 

impracticable to obtain consent, where 

there are: 

(1) 50 or more, but less than 100, coowners of undivided trust or restricted 

interests, and no one of such co-owners 

holds a total undivided trust or 

restricted interest in the parcel that is 

greater than 10 percent of the entire 

undivided ownership of the parcel; or 

(2) 100 or more co-owners of 

undivided trust or restricted interests. 

(d) The right-of-way will not bind a 

non-consenting Indian tribe, except 

with respect to the tribally owned 

fractional interest, and the nonconsenting Indian tribe will not be 

treated as a party to the right-of-way. 

Nothing in this paragraph affects the 

sovereignty or sovereign immunity of 

the Indian tribe. 

(e) Successors are bound by consent 

granted by their predecessors-ininterest. 

§ 169.108 Who is authorized to consent to 

a right-of-way? 

(a) Indian tribes, adult Indian 

landowners, and emancipated minors, 

may consent to a right-of-way affecting 

their land, including undivided 

interests in fractionated tracts. 

(b) The following individuals or 

entities may consent on behalf of an 

individual Indian landowner: 

(1) An adult with legal custody acting 

on behalf of his or her minor children; 

(2) A guardian, conservator, or other 

fiduciary appointed by a court of 

competent jurisdiction to act on behalf 

of an individual Indian landowner; 

(3) Any person who is authorized to 

practice before the Department of the 

Interior under 43 CFR 1.3(b) and has 

been retained by the Indian landowner 

for this purpose; 

(4) BIA, under the circumstances in 

paragraph (c) of this section; or 

(5) An adult or legal entity who has 

been given a written power of attorney 

that: 

(i) Meets all of the formal 

requirements of any applicable law 

under § 169.008; 

(ii) Identifies the attorney-in-fact; and 

(iii) Describes the scope of the powers 

granted, to include granting rights-ofway on land, and any limits on those 

powers. 

(c) BIA may give written consent to a 

right-of-way, as long as we determine 

that the grant will cause no substantial 

injury to the land or any landowner, and 

that consent must be counted in the 

majority interest under § 169.107, on 

behalf of: 

(1) The individual owner, if the owner 

is deceased, and the heirs to, or devisees 

of, the interest of the deceased owner 

have not been determined; 

(2) An individual whose whereabouts 

are unknown to us, after we make a 


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reasonable attempt to locate the 

individual; 

(3) An individual who is found to be 

non compos mentis or determined to be 

an adult in need of assistance who does 

not have a guardian duly appointed by 

a court of competent jurisdiction, or an 

individual under legal disability as 

defined in part 115 of this chapter; 

(4) An orphaned minor who does not 

have a guardian duly appointed by a 

court of competent jurisdiction; and 

(5) An individual who has given us a 

written power of attorney to consent to 

a right-of-way of their land. 

Compensation Requirements 

§ 169.109 How much monetary 

compensation must be paid for a right-ofway affecting tribal land? 

(a) A right-of-way affecting tribal land 

may allow for any payment amount 

negotiated by the tribe, and we will 

defer to the tribe and not require a 

valuation if the tribe submits a tribal 

authorization expressly stating that it: 

(1) Has negotiated compensation 

satisfactory to the tribe; 

(2) Waives valuation; and 

(3) Has determined that accepting 

such negotiated compensation and 

waiving valuation is in its best interest. 

(b) The tribe may request, in writing, 

that we determine market value, in 

which case we will use a valuation in 

accordance with § 169.111. After 

providing the tribe with the market 

value, we will defer to a tribe’s decision 

to allow for any compensation 

negotiated by the tribe. 

(c) If the conditions in paragraph (a) 

or (b) of this section are not met, we will 

require that the grantee provide for 

market value based on a valuation in 

accordance with § 169.111. 

§ 169.110 How much monetary 

compensation must be paid for a right-ofway affecting individually owned Indian 

land? 

(a) A right-of-way affecting 

individually owned Indian land must 

require payment of not less than market 

value before any adjustments, based on 

a fixed amount, a percentage of the 

projected income, or some other 

method, unless paragraphs (b) or (c) of 

this section permit a lesser amount. The 

grant must establish how the fixed 

amount, percentage, or combination will 

be calculated and the frequency at 

which the payments will be made. 

Compensation will include market 

value and may include additional fees, 

such as throughput fees, severance 

damages, franchise fees, avoidance 

value, bonuses, or other factors. 

(b) We may approve a right-of-way 

affecting individually owned Indian 

land that provides for the payment of 

nominal compensation, or less than a 

market value, if: 

(1) The Indian landowners execute a 

written waiver of the right to receive 

market value; and 

(2) We determine it is in the Indian 

landowners’ best interest, based on 

factors including, but not limited to: 

(i) The grantee is a member of the 

immediate family, as defined in 

§ 169.002, of an individual Indian 

landowner; 

(ii) The grantee is a co-owner in the 

affected tract; 

(iii) A special relationship or 

circumstances exist that we believe 

warrant approval of the right-of-way; or 

(iv) We have waived the requirement 

for a valuation under paragraph (d) of 

this section. 

(c) We will require a valuation, 

unless: 

(1) 100 percent of the Indian 

landowners submit to us a written 

request to waive the valuation 

requirement; or 

(2) We waive the requirement under 

paragraph (d) of this section. 

(d) The grant must provide that the 

non-consenting Indian landowners, and 

those on whose behalf we have 

consented under § 169.108(c), or granted 

the right-of-way without consent under 

§ 169.107(b), receive market value, as 

determined by a valuation, unless we 

waive the requirement because the tribe 

or grantee will construct infrastructure 

improvements benefitting the Indian 

landowners, and we determine it is in 

the best interest of all the landowners. 

§ 169.111 How will BIA determine market 

value for a right-of-way? 

(a) We will use a market analysis, 

appraisal, or other appropriate valuation 

method to determine the market value 

before we grant a right-of-way affecting 

individually owned Indian land or, at 

the request of the tribe, for tribal land. 

(b) We will either: 

(1) Prepare, or have prepared, a 

market analysis, appraisal, or other 

appropriate valuation method; or 

(2) Use an approved market analysis, 

appraisal, or other appropriate valuation 

method from the Indian landowners or 

grantee. 

(c) We will use or approve use of a 

market analysis, appraisal, or other 

appropriate valuation method only if it: 

(1) Has been prepared in accordance 

with USPAP or a valuation method 

developed by the Secretary under 25 

U.S.C. 2214 and complies with 

Departmental policies regarding 

appraisals, including third-party 

appraisals; or 

(2) Has been prepared by another 

Federal agency. 

§ 169.112 When are monetary 

compensation payments due under a rightof-way? 

(a) If compensation is a one-time, 

lump sum payment, the grantee must 

make the payment within 10 days of our 

grant of the right-of-way. 

(b) If compensation is to be paid in 

increments, the right-of-way grant must 

specify the dates on which all payments 

are due. Payments are due at the time 

specified in the grant, regardless of 

whether the grantee receives an advance 

billing or other notice that a payment is 

due. Increments may not be more 

frequent than quarterly. 

§ 169.113 Must a right-of-way specify who 

receives monetary compensation 

payments? 

(a) A right-of-way grant must specify 

whether the grantee will make payments 

directly to the Indian landowners (direct 

pay) or to us on their behalf. 

(b) The grantee may make payments 

directly to the Indian landowners if: 

(1) The Indian landowners’ trust 

accounts are encumbered accounts; 

(2) There are 10 or fewer beneficial 

owners; and 

(3) One hundred percent of the 

beneficial owners (including those on 

whose behalf we have consented) agree 

to receive payment directly from the 

grantee at the start of the right-of-way. 

(c) If the right-of-way document 

provides that the grantee will directly 

pay the Indian landowners, then: 

(1) The right-of-way document must 

include provisions for proof of payment 

upon our request. 

(2) When we consent on behalf of an 

Indian landowner, the grantee must 

make payment to us on behalf of that 

landowner. 

(3) The grantee must send direct 

payments to the parties and addresses 

specified in the right-of-way, unless the 

grantee receives notice of a change of 

ownership or address. 

(4) Unless the right-of-way document 

provides otherwise, payments may not 

be made payable directly to anyone 

other than the Indian landowners. 

(5) Direct payments must continue 

through the duration of the right-of-way, 

except that: 

(i) The grantee must make all Indian 

landowners’ payments to us if 100 

percent of the Indian landowners agree 

to suspend direct pay and provide us 

with documentation of their agreement; 

and 

(ii) The grantee must make an 

individual Indian landowner’s payment 

to us if that individual Indian 

landowner dies, is declared non compos 

mentis, owes a debt resulting in an 

encumbered account, or his or her 

whereabouts become unknown. 


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§ 169.114 What form of monetary 

compensation is acceptable under a rightof-way? 

(a) Our preferred method of payment 

is electronic funds transfer payments. 

We will also accept: 

(1) Money orders; 

(2) Personal checks; 

(3) Certified checks; or 

(4) Cashier’s checks. 

(b) We will not accept cash or foreign 

currency. 

(c) We will accept third-party checks 

only from financial institutions or 

Federal agencies. 

§ 169.115 May the right-of-way provide for 

non-monetary or varying types of 

compensation? 

(a) A right-of-way grant may provide 

for the following, subject to the 

conditions in paragraphs (b) and (c) of 

this section: 

(1) Alternative forms of 

compensation, including but not limited 

to, in-kind consideration and payments 

based on throughput or percentage of 

income; or 

(2) Varying types of compensation at 

specific stages during the life of the 

right-of-way grant, including but not 

limited to, fixed annual payments 

during construction, payments based on 

income during an operational period, 

and bonuses. 

(b) For tribal land, we will defer to the 

tribe’s determination that the 

compensation under paragraph (a) of 

this section is in its best interest, if the 

tribe submits a signed certification or 

tribal authorization stating that it has 

determined the compensation under 

paragraph (a) of this section to be in its 

best interest. 

(c) For individually owned land, we 

may grant a right-of-way that provides 

for compensation under paragraph (a) of 

this section if we determine that it is in 

the best interest of the Indian 

landowners. 

§ 169.116 Will BIA notify a grantee when a 

payment is due for a right-of-way? 

Upon request of the Indian 

landowners, we may issue invoices to a 

grantee in advance of the dates on 

which payments are due under the 

right-of-way. The grantee’s obligation to 

make these payments in a timely 

manner will not be excused if invoices 

are not issued, delivered, or received. 

§ 169.117 Must a right-of-way grant 

provide for compensation reviews or 

adjustments? 

(a) For a right-of-way grant affecting 

tribal land, no periodic review of the 

adequacy of compensation or 

adjustment is required, unless the tribe 

negotiates for reviews or adjustments. 

(b) For a right-of-way grant of 

individually owned Indian land, no 

periodic review of the adequacy of 

compensation or adjustment is required 

if: 

(1) Payment is a one-time lump sum; 

(2) The term of the right-of-way grant 

is 5 years or less; 

(3) The grant provides for automatic 

adjustments; or 

(4) We determine it is in the best 

interest of the Indian landowners not to 

require a review or automatic 

adjustment based on circumstances 

including, but not limited to, the 

following: 

(i) The right-of-way grant provides for 

payment of less than market value; 

(ii) The right-of-way grant provides 

for most or all of the compensation to 

be paid during the first 5 years of the 

grant term or before the date the review 

would be conducted; or 

(iii) The right-of-way grant provides 

for graduated rent or non-monetary or 

varying types of compensation. 

(c) If the conditions in paragraph (b) 

of this section are not met, a review of 

the adequacy of compensation must 

occur at least every fifth year, in the 

manner specified in the grant. The grant 

must specify: 

(1) When adjustments take effect; 

(2) Who can make adjustments; 

(3) What the adjustments are based 

on; and 

(4) How to resolve disputes arising 

from the adjustments. 

(d) When a review results in the need 

for adjustment of compensation, the 

Indian landowners must consent to the 

adjustment in accordance with 

§ 169.107, unless the grant provides 

otherwise. 

§ 169.118 What other types of payments 

are required for a right-of-way? 

(a) The grantee may be required to pay 

additional fees, taxes, and assessments 

associated with the use of the land, as 

determined by entities having 

jurisdiction, except as provided in 

§ 169.009. The grantee must pay these 

amounts to the appropriate office. 

(b) In addition to the compensation 

for a right-of-way provided for in 

paragraph (a) of this section, the 

applicant for a right-of-way will be 

required to pay all damages incident to 

the survey of the right-of-way or 

incident to the construction or 

maintenance of the facility for which 

the right-of-way is granted. 

Grants of Rights-of-Way 

§ 169.119 What is the process for BIA to 

grant a right-of-way? 

(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 ensure compliance with all 

applicable environmental laws, land use 

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 the information and supporting 

documents required under this subpart, 

including but not limited to, an accurate 

legal description for each affected tract, 

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 

parties of the date of our receipt of the 

complete package. Within 60 days of 

that receipt date, 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 have 30 days from sending the 

letter informing the applicant that we 

need additional time to grant or deny 

the right-of-way. 

(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 

grant or 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-ofway. 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. 


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§ 169.120 How will BIA determine whether 

to grant a right-of-way? 

(a) We will grant a right-of-way 

unless: 

(1) The required consents have not 

been obtained from the parties to the 

right-of-way under § 169.106 and 

§ 169.107; 

(2) The requirements of this subpart 

have not been met; or 

(3) 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 rightof-way, or we may issue separate grants 

for one or more tracts traversed by the 

right-of-way. 

§ 169.121 What will the grant of right-ofway contain? 

(a) The grant will incorporate the 

conditions or restrictions set out in the 

consents obtained pursuant to § 169.106 

for tribal land and § 169.107 for 

individually owned Indian land 

(b) The grant will state that: 

(1) 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; 

(2) BIA may treat any provision of a 

grant that violates Federal law as a 

violation of the grant; and 

(3) The grantee must: 

(i) Construct and maintain the rightof-way in a professional manner 

consistent with industry standards; 

(ii) Pay promptly all damages and 

compensation, in addition to the 

performance 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, 

unless otherwise negotiated by the 

parties; 

(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) Repair and maintain 

improvements consistent with the rightof-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 land to its original 

condition, as much as reasonably 

possible, upon revocation or 

termination of the right-of-way, unless 

otherwise negotiated by the parties; 

(x) At all times keep the BIA 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; 

and 

(xii) Comply with due diligence 

requirements under § 169.105. 

(4) 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. 

(c) The grant must attach or 

incorporate by reference maps of 

definite location reviewed in 

accordance with the Standards for 

Indian Trust Land Boundary Evidence. 

§ 169.122 May a right-of-way contain a 

preference consistent with tribal law for 

employment of tribal members? 

A grant of right-of-way over 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. 

§ 169.123 Is a new right-of-way grant 

required for a new use within or 

overlapping an existing right-of-way? 

(a) 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, or not within 

the same scope of the use specified in 

the original grant of the existing rightof-way, you must request a new right-ofway within or overlapping the existing 

right-of-way for the new use. 

(b) We may grant a new right-of-way 

within or overlapping an existing rightof-way if it meets the following 

conditions: 

(1) The applicant follows the 

procedures and requirements in this 

part to obtain a new right-of-way. 

(2) The new right-of-way does not 

interfere with the use or purpose of the 

existing right-of-way or the applicant 

has obtained the consent of the existing 

right-of-way grantee. The existing rightof-way grantee may not unreasonably 

withhold consent. 

(3) If the existing right-of-way was 

granted under the Act of March 3, 1901, 

25 U.S.C. 311, to a State or local 

authority for public highways, before 

the effective date of this part, we may 

grant the new right-of-way only if it is 

not prohibited by State law. 

§ 169.124 What is required if the location 

described in the original application and 

grant of right-of-way differs from the 

construction location? 

(a) If there were engineering or other 

complications that prevented 

construction within the location 

identified in the original application 

and grant, we 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; 

(4) Additional compensation; and/or 

(5) A new right-of-way grant. 

(b) If we grant a right-of-way for the 

new route or location, the applicant 

must execute instruments to extinguish 

the right-of-way at the original location 

identified in the application. 

(c) We will transmit the instruments 

to extinguish the right-of-way to the 

LTRO for recording. 

Subpart C—Term, Renewals, 

Amendments, Assignments, 

Mortgages 

§ 169.201 How long may the term of a 

right-of-way grant be? 

(a) All rights-of-way granted under 

this part are limited to the time periods 

stated in the grant. 

(b) For tribal land, we will defer to the 

tribe’s determination that the right-ofway term, including any renewal, is 

reasonable. 

(c) For individually owned Indian 

land, we will review the right-of-way 


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term, including any renewal, to ensure 

that it is reasonable, given the purpose 

of the right-of-way. We will use the 

following table as guidelines for what 

terms are reasonable given the purpose 

of the right-of-way: 

Purpose Term 

Railroads ........................................................................................................................................................... In Perpetuity. 

Public roads and highways ............................................................................................................................... In Perpetuity. 

Access roads ..................................................................................................................................................... 25 years, with renewal option. 

Service roads and trails essential to any other right-of-way purpose .............................................................. Consistent with use. 

Public and community water lines (including pumping stations and appurtenant facilities) ............................ In Perpetuity. 

Utility Gas Lines ................................................................................................................................................ In Perpetuity. 

Public sanitary and storm sewer lines including sewage disposal and treatment plants ................................ In Perpetuity. 

Water control and use projects (including but not limited to dams, reservoirs, flowage easements, irrigation/ditches and canals and water treatment plants).In Perpetuity. 

Oil and gas pipelines ........................................................................................................................................ 20 years. 

Electric power projects, generating plants, switchyards, electric transmission and distribution lines (including poles, towers, and appurtenant facilities).50 years. 

Telecommunication lines ................................................................................................................................... 30 years. 

Broadband or fiber optic lines ........................................................................................................................... 30 years. 

Avigation hazard easements ............................................................................................................................. 20 years. 

Conservation easements .................................................................................................................................. Consistent with use. 

(c) Unless the right-of-way grant 

provides otherwise, a right-of-way may 

not be extended by holdover. 

§ 169.202 Under what circumstances will a 

grant of right-of-way be renewed? 

(a) The grantee may request a renewal 

(an extension of term without any other 

change) of an existing right-of-way grant 

and we will renew the grant as long as: 

(1) The original right-of-way grant 

allows for renewal and specifies any 

compensation; 

(2) The grantee provides us with a 

signed attestation that there is no 

change in size, type, location, or 

duration of the right-of-way; and 

(3) The grantee provides us with 

confirmation that landowner consent 

has been obtained, unless it is not 

required under paragraph (b) of this 

section. 

(b) Consent is not required if the 

original right-of-way grant allows for 

renewal without the owners’ consent. 

(c) We will record any renewal of a 

right-of-way grant in the LTRO. 

(d) If the proposed renewal involves 

a change in size, type, location, or 

duration of the right-of-way, the grantee 

must reapply for a new right-of-way, in 

accordance with § 169.101, and we will 

handle the application for renewal as an 

original application for a right-of-way. 

§ 169.203 May a right-of-way be renewed 

multiple times? 

There is no prohibition on renewing 

a right-of-way multiple times. 

Amendments 

§ 169.204 May a grantee amend a right-ofway? 

(a) A grantee may request that we 

amend a right-of-way grant if the grantee 

meets the consent requirements in 

§ 169.106 for tribal land or § 169.107 for 

individually owned Indian land and 

obtains our approval, except that a 

grantee may request that we amend a 

right-of-way to correct a legal 

description or make other technical 

corrections without meeting consent 

requirements. 

(b) An amendment is required to 

change any provisions of a right-of-way 

grant or to accommodate a change in the 

location of permanent improvements to 

previously unimproved land within the 

right-of-way corridor. 

§ 169.205 What is the approval process for 

an amendment of a right-of-way? 

(a) When we receive an amendment 

for our approval, we will notify the 

parties of the date we receive it. If our 

approval is required, we have 30 days 

from receipt of the executed 

amendment, proof of required consents, 

and required documentation (including 

but not limited to a corrected legal 

description, if any, and NEPA 

compliance) to approve or disapprove 

the amendment or inform the parties in 

writing that we need additional review 

time. Our determination whether to 

approve the amendment will be in 

writing and will state the basis for our 

approval or disapproval. 

(b) Our letter informing the parties 

that we need additional review time 

must identify our initial concerns and 

invite the parties to respond within 15 

days of the date of the letter. We have 

30 days from sending the letter 

informing the parties that we need 

additional time to approve or 

disapprove the amendment. 

(c) If we do not meet the deadline in 

paragraph (a) of this section, or 

paragraph (b) of this section if 

applicable, the grantee or Indian 

landowners may take appropriate action 

under § 169.304. 

§ 169.206 How will BIA decide whether to 

approve an amendment of a right-of-way? 

(a) We may disapprove a request for 

an amendment of a right-of-way only if 

at least one of the following is true: 

(1) The Indian landowners have not 

consented; 

(2) The grantee’s sureties have not 

consented; 

(3) The grantee is in violation of the 

right-of-way grant; 

(4) The requirements of this subpart 

have not been met; or 

(5) We find a compelling reason to 

withhold our approval 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 

amendment is in their best interest. 

(c) We may not unreasonably 

withhold approval of an amendment. 

Assignments 

§ 169.207 May a grantee assign a right-ofway? 

(a) A grantee may assign a right-ofway by meeting the consent 

requirements in § 169.106 for tribal land 

or § 169.107 for individually owned 

Indian land and obtaining our approval, 

or by meeting the conditions in 

paragraph (b). 

(b) A grantee may assign a right-ofway without BIA approval only if: 

(1) The original right-of-way grant 

allows for assignment without BIA 

approval; and 

(2) The assignee and grantee provide 

a copy of the assignment and supporting 

documentation to BIA for recording in 

the LTRO. 

§ 169.208 What is the approval process for 

an assignment of a right-of-way? 

(a) When we receive an assignment 

for our approval, we will notify the 


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parties of the date we receive it. If our 

approval is required, we have 30 days 

from receipt of the executed assignment, 

proof of required consents, and required 

documentation to approve or 

disapprove the assignment. Our 

determination whether to approve the 

assignment will be in writing and will 

state the basis for our approval or 

disapproval. 

(b) If we do not meet the deadline in 

this section, the grantee or Indian 

landowners may take appropriate action 

under § 169.304. 

§ 169.209 How will BIA decide whether to 

approve an assignment of a right-of-way? 

(a) We may disapprove an assignment 

of a right-of-way only if at least one of 

the following is true: 

(1) The Indian landowners have not 

consented and their consent is required; 

(2) The grantee’s sureties have not 

consented; 

(3) The grantee is in violation of the 

right-of-way grant; 

(4) The assignee does not agree to be 

bound by the terms of the right-of-way 

grant; 

(5) The requirements of this subpart 

have not been met; or 

(6) We find a compelling reason to 

withhold our approval 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 

assignment is in their best interest. 

(c) We may not unreasonably 

withhold approval of an assignment. 

Mortgages 

§ 169.210 May a grantee mortgage a rightof-way? 

A grantee may mortgage a right-ofway by meeting the consent 

requirements in § 169.106 for tribal land 

or § 169.107 for individually owned 

Indian land and obtaining our approval. 

§ 169.211 What is the approval process for 

a mortgage of a right-of-way? 

(a) When we receive a right-of-way 

mortgage for our approval, we will 

notify the parties of the date we receive 

it. We have 30 days from receipt of the 

executed mortgage, proof of required 

consents, and required documentation 

to approve or disapprove the mortgage. 

Our determination whether to approve 

the mortgage will be in writing and will 

state the basis for our approval or 

disapproval. 

(b) If we do not meet the deadline in 

this section, the grantee or Indian 

landowners may take appropriate action 

under § 169.304. 

§ 169.212 How will BIA decide whether to 

approve a mortgage of a right-of-way? 

(a) We may disapprove a right-of-way 

mortgage only if at least one of the 

following is true: 

(1) The Indian landowners have not 

consented; 

(2) The grantee’s mortgagees or 

sureties have not consented; 

(3) The requirements of this subpart 

have not been met; or 

(4) We find a compelling reason to 

withhold our approval in order to 

protect the best interests of the Indian 

landowners. 

(b) In making the finding required by 

paragraph (a)(4) of this section, we may 

consider whether: 

(1) The mortgage proceeds would be 

used for purposes unrelated to the rightof-way purpose; and 

(2) The mortgage is limited to the 

right-of-way. 

(c) We will defer, to the maximum 

extent possible, to the Indian 

landowners’ determination that the 

mortgage is in their best interest. 

(d) We may not unreasonably 

withhold approval of a right-of-way 

mortgage. 

Subpart D—Effectiveness 

§ 169.301 When will a right-of-way 

document be effective? 

A right-of-way document will be 

effective on the date we approve the 

right-of-way document, even if an 

appeal is filed under part 2 of this 

chapter. 

§ 169.302 Must a right-of-way be 

recorded? 

(a) Any right-of-way document must 

be recorded in our LTRO with 

jurisdiction over the affected Indian 

land. 

(1) We will record the right-of-way 

document immediately following our 

approval or granting. 

(2) In the case of assignments that do 

not require our approval under 

§ 169.207(b), the parties must provide us 

with a copy of the assignment and we 

will record the assignment in the LTRO 

with jurisdiction over the affected 

Indian land. 

(b) The tribe must record right-of-way 

documents for the following types of 

rights-of-way in the LTRO with 

jurisdiction over the affected Indian 

lands, even though BIA approval is not 

required: 

(1) Grants on tribal land for a tribal 

utility that is not a separate legal entity 

under § 169.004; 

(2) Grants on tribal land under a 

special act of Congress authorizing 

grants without our approval under 

certain conditions. 

§ 169.303 What happens if BIA denies a 

right-of-way document? 

If we deny the right-of-way grant, 

renewal, amendment, assignment, or 

mortgage, we will notify the parties 

immediately and advise the landowners 

of their right to appeal the decision 

under part 2 of this chapter. 

§ 169.304 What happens if BIA does not 

meet a deadline for issuing a decision on 

a right-of-way document? 

(a) If a Superintendent does not meet 

a deadline for granting or denying a 

right-of-way, renewal, amendment, 

assignment, or mortgage, the parties 

may file a written notice to compel 

action with the appropriate Regional 

Director. 

(b) The Regional Director has 15 days 

from receiving the notice to: 

(1) Grant or deny the right-of-way; or 

(2) Order the Superintendent to grant 

or deny the right-of-way within the time 

set out in the order. 

(c) The parties may file a written 

notice to compel action with the BIA 

Director if: 

(1) The Regional Director does not 

meet the deadline in paragraph (b) of 

this section; 

(2) The Superintendent does not grant 

or deny the right-of-way within the time 

set by the Regional Director under 

paragraph (b)(2) of this section; or 

(3) The initial decision on the rightof-way, renewal, amendment, 

assignment, or mortgage is with the 

Regional Director, and he or she does 

not meet the deadline for such decision. 

(d) The BIA Director has 15 days from 

receiving the notice to: 

(1) Grant or deny the right-of-way; or 

(2) Order the Regional Director or 

Superintendent to grant or deny the 

right-of-way within the time set out in 

the order. 

(e) If the Regional Director or 

Superintendent does not grant or deny 

the right-of-way within the time set out 

in the order under paragraph (d)(2), then 

the BIA Director must issue a decision 

within 15 days from the expiration of 

the time set out in the order. 

(f) The parties may file an appeal from 

our inaction to the Interior Board of 

Indian Appeals if the Director does not 

meet the deadline in paragraph (d) or (e) 

of this section. 

(g) The provisions of 25 CFR 2.8 do 

not apply to the inaction of BIA officials 

with respect to a granting or denying a 

right-of-way, renewal, amendment, 

assignment, or mortgage under this 

subpart. 


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§ 169.305 Will BIA require an appeal bond 

for an appeal of a decision on a right-of-way 

document? 

(a) If a party appeals our decision on 

a right-of-way document, then the 

official to whom the appeal is made may 

require the appellant to post an appeal 

bond in accordance with part 2 of this 

chapter. We will not require an appeal 

bond if the tribe is a party to the appeal 

and requests a waiver of the appeal 

bond. 

(b) The appellant may not appeal the 

appeal bond decision. The appellant 

may, however, request that the official 

to whom the appeal is made reconsider 

the bond decision, based on 

extraordinary circumstances. Any 

reconsideration decision is final for the 

Department. 

Subpart E—Compliance and 

Enforcement 

§ 169.401 What is the purpose and scope 

of this subpart? 

This subpart describes the procedures 

we use to address compliance and 

enforcement related to rights-of-way on 

Indian land. Any abandonment, nonuse, or violation of the right-of-way 

grant, including but not limited to 

encroachments beyond the defined 

boundaries, accidental, willful, and/or 

incidental trespass, unauthorized new 

construction or changes in use, and late 

or insufficient payment may result in 

enforcement actions. 

§ 169.402 May BIA investigate compliance 

with a right-of-way? 

BIA may investigate compliance with 

a right-of-way. 

(a) If an Indian landowner notifies us 

that a specific abandonment, non-use, or 

violation has occurred, we will 

promptly initiate an appropriate 

investigation. 

(b) We may enter the Indian land 

subject to a right-of-way at any 

reasonable time, upon reasonable 

notice, and consistent with any notice 

requirements under applicable tribal 

law and applicable grant documents, to 

protect the interests of the Indian 

landowners and to determine if the 

grantee is in compliance with the 

requirements of the right-of-way. 

§ 169.403 May a right-of-way provide for 

negotiated remedies? 

(a) The tribe and the grantee on tribal 

land may negotiate remedies for the 

event of a violation, abandonment, or 

non-use. The negotiated remedies must 

be stated in the tribe’s consent to the 

right-of-way grant. The negotiated 

remedies may include, but are not 

limited to, the power to terminate the 

right-of-way grant. If the negotiated 

remedies provide one or both parties 

with the power to terminate the grant: 

(1) BIA approval of the termination is 

not required; 

(2) The termination is effective 

without BIA cancellation; and 

(3) The Indian landowners must 

provide us with written notice of the 

termination so that we may record it in 

the LTRO. 

(b) The Indian landowners and the 

grantee to a right-of-way grant on 

individually owned Indian land may 

negotiate remedies, so long as the 

consent also specifies the manner in 

which those remedies may be exercised 

by or on behalf of the Indian 

landowners of the majority interest 

under § 169.107 of this part. If the 

negotiated remedies provide one or both 

parties with the power to terminate the 

grant: 

(1) BIA concurrence with the 

termination is required to ensure that 

the Indian landowners of the applicable 

percentage of interests have consented; 

and 

(2) BIA will record the termination in 

the LTRO. 

(c) The parties must notify any surety 

or mortgagee of any violation that may 

result in termination and the 

termination of a right-of-way. 

(d) Negotiated remedies may apply in 

addition to, or instead of, the 

cancellation remedy available to us, as 

specified in the right-of-way grant. The 

landowners may request our assistance 

in enforcing negotiated remedies. 

(e) A right-of-way grant may provide 

that violations will be addressed by a 

tribe, and that disputes will be resolved 

by a tribal court, any other court of 

competent jurisdiction, or by a tribal 

governing body in the absence of a tribal 

court, or through an alternative dispute 

resolution method. We may not be 

bound by decisions made in such 

forums, but we will defer to ongoing 

actions or proceedings, as appropriate, 

in deciding whether to exercise any of 

the remedies available to us. 

§ 169.404 What will BIA do about a 

violation of a right-of-way grant? 

(a) In the absence of actions or 

proceedings described in § 169.403 

(negotiated remedies), or if it is not 

appropriate for us to defer to the actions 

or proceedings, we will follow the 

procedures in paragraphs (b) and (c) of 

this section. 

(b) If we determine there has been a 

violation of the conditions of a grant, 

other than a violation of payment 

provisions covered by paragraph (c) of 

this section, we will promptly send the 

grantee a written notice of violation. 

(1) We will send a copy of the notice 

of violation to the tribe for tribal land, 

or provide constructive notice to Indian 

landowners for individually owned 

Indian land. 

(2) The notice of violation will advise 

the grantee that, within 10 business 

days of the receipt of a notice of 

violation, the grantee must: 

(i) Cure the violation and notify us, 

and the tribe for tribal land, in writing 

that the violation has been cured; 

(ii) Dispute our determination that a 

violation has occurred; or 

(iii) Request additional time to cure 

the violation. 

(3) The notice of violation may order 

the grantee to cease operations under 

the right-of-way grant. 

(c) A grantee’s failure to pay 

compensation in the time and manner 

required by a right-of-way grant is a 

violation, and we will issue a notice of 

violation in accordance with this 

paragraph. 

(1) We will send the grantees a 

written notice of violation promptly 

following the date on which the 

payment was due. 

(2) We will send a copy of the notice 

of violation to the tribe for tribal land, 

or provide constructive notice to the 

Indian landowners for individually 

owned Indian land. 

(3) The notice of violation will require 

the grantee to provide adequate proof of 

payment. 

(d) The grantee will continue to be 

responsible for the obligations in the 

grant until the grant expires, or is 

terminated or cancelled. 

§ 169.405 What will BIA do if the grantee 

does not cure a violation of a right-of-way 

grant on time? 

(a) If the grantee does not cure a 

violation of a right-of-way grant within 

the required time period, or provide 

adequate proof of payment as required 

in the notice of violation, we will 

consult with the tribe for tribal land or, 

where feasible, with Indian landowners 

for individually owned Indian land, and 

determine whether: 

(1) We should cancel the grant; 

(2) The Indian landowners wish to 

invoke any remedies available to them 

under the grant; 

(3) We should invoke other remedies 

available under the grant or applicable 

law, including collection on any 

available performance bond or, for 

failure to pay compensation, referral of 

the debt to the Department of the 

Treasury for collection; or 

(4) The grantee should be granted 

additional time in which to cure the 

violation. 

(b) Following consultation with the 

tribe for tribal land or, where feasible, 

with Indian landowners for individually 


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owned Indian land, we may take action 

to recover unpaid compensation and 

any associated late payment charges. 

(1) We do not have to cancel the grant 

or give any further notice to the grantee 

before taking action to recover unpaid 

compensation. 

(2) We may still take action to recover 

any unpaid compensation if we cancel 

the grant. 

(c) If we decide to cancel the grant, we 

will send the grantee a cancellation 

letter by certified mail, return receipt 

requested, within 5 business days of our 

decision. We will send a copy of the 

cancellation letter to the tribe for tribal 

land, and will provide Indian 

landowners for individually owned 

Indian land with actual or constructive 

notice of the cancellation. The 

cancellation letter will: 

(1) Explain the grounds for 

cancellation; 

(2) If applicable, notify the grantee of 

the amount of any unpaid compensation 

or late payment charges due under the 

grant; 

(3) Notify the grantee of the grantee’s 

right to appeal under part 2 of this 

chapter, including the possibility that 

the official to whom the appeal is made 

may require the grantee to post an 

appeal bond; 

(4) Order the grantee to vacate the 

property within 31 days of the date of 

receipt of the cancellation letter, if an 

appeal is not filed by that time; and 

(5) Order the grantee to take any other 

action BIA deems necessary to protect 

the Indian landowners. 

(d) We may invoke any other 

remedies available to us under the grant, 

including collecting on any available 

performance bond, and the Indian 

landowners may pursue any available 

remedies under tribal law. 

§ 169.406 Will late payment charges, 

penalties, or special fees apply to 

delinquent payments due under a right-ofway grant? 

(a) Late payment charges and 

penalties will apply as specified in the 

grant. The failure to pay these amounts 

will be treated as a violation. 

(b) We may assess the following 

special fees to cover administrative 

costs incurred by the United States in 

the collection of the debt, if 

compensation is not paid in the time 

and manner required, in addition to the 

late payment charges that must be paid 

to the Indian landowners under the 

grant: 

The grantee will pay . . . For . . . 

(1) $50.00 ........................................................................... Any dishonored check. 

(2) $15.00 ........................................................................... Processing of each notice or demand letter. 

(3) 18 percent of balance due ........................................... Treasury processing following referral for collection of delinquent debt. 

§ 169.407 How will payment rights relating 

to a right-of-way grant be allocated? 

The right-of-way grant may allocate 

rights to payment for any proceeds, 

trespass damages, condemnation 

awards, settlement funds, and other 

payments between the Indian 

landowners and the grantee. If not 

specified in the grant, applicable policy, 

order, award, judgment, or other 

document, the Indian landowners or 

grantees will be entitled to receive these 

payments. 

§ 169.408 What is the process for 

cancelling a right-of-way for non-use or 

abandonment? 

(a) We may cancel, in whole or in 

part, any rights-of-way granted under 

this part 30 days after mailing written 

notice to the grantee at its latest address, 

for any of the following causes: 

(1) A nonuse of the right-of-way for a 

consecutive 2-year period for the 

purpose for which it was granted; or 

(2) An abandonment of the right-ofway. 

(b) If the grantee fails to correct the 

basis for cancellation by the 30th day 

after we mailed the notice, we will issue 

an appropriate instrument cancelling 

the right-of-way and transmit it to the 

office of record pursuant to 25 CFR part 

150 for recording and filing. 

§ 169.409 When will a cancellation of a 

right-of-way grant be effective? 

(a) A cancellation involving a right-ofway grant will not be effective until 31 

days after the grantee receives a 

cancellation letter from us, or 41 days 

from the date we mailed the letter, 

whichever is earlier. 

(b) The cancellation decision will not 

be effective if an appeal is filed unless 

the cancellation is made immediately 

effective under part 2 of this chapter. 

While a cancellation decision is 

ineffective, the grantee must continue to 

pay compensation and comply with the 

other terms of the grant. 

§ 169.410 What will BIA do if a grantee 

remains in possession after a right-of-way 

expires or is terminated or cancelled? 

If a grantee remains in possession 

after the expiration, termination, or 

cancellation of a right-of-way, we may 

treat the unauthorized possession as a 

trespass under applicable law in 

consultation with the Indian 

landowners. Unless the Indian 

landowners of the applicable percentage 

of interests under § 169.106 or 169.107 

have notified us in writing that they are 

engaged in good faith negotiations with 

the holdover grantee to renew or obtain 

a new right-of-way, we may take action 

to recover possession on behalf of the 

Indian landowners, and pursue any 

additional remedies available under 

applicable law, such as a forcible entry 

and detainer action. 

§ 169.411 Will BIA appeal bond regulations 

apply to cancellation decisions involving 

right-of-way grants? 

(a) Except as provided in paragraph 

(b) of this section, the appeal bond 

provisions in part 2 of this chapter will 

apply to appeals from right-of-way 

cancellation decisions. 

(b) The grantee may not appeal the 

appeal bond decision. The grantee may, 

however, request that the official to 

whom the appeal is made reconsider the 

appeal bond decision, based on 

extraordinary circumstances. Any 

reconsideration decision is final for the 

Department. 

§ 169.412 What if an individual or entity 

takes possession of or uses Indian land 

without a right-of-way or other proper 

authorization? 

If an individual or entity takes 

possession of, or uses, Indian land 

without a right-of-way and a right-ofway is required, the unauthorized 

possession or use is a trespass. An 

unauthorized use within an existing 

right-of-way is also a trespass. We may 

take action to recover possession, 

including eviction, on behalf of the 

Indian landowners and pursue any 

additional remedies available under 

applicable law. The Indian landowners 

may pursue any available remedies 

under applicable law. 

Subpart F—Service Line Agreements 

§ 169.501 Is a right-of-way required for 

service lines? 

A right-of-way is not required for 

service lines. Service line agreements 

are for the purpose of supplying the 

owners (or authorized occupants or 

users, as demonstrated by a lease or 

tribal authorization) of tribal or 


tkelley on DSK3SPTVN1PROD with PROPOSALS
34474 Federal Register / Vol. 79, No. 116 / Tuesday, June 17, 2014 / Proposed Rules 

individually owned Indian land with 

utilities for use by such owners (or 

occupants or users) on the premises. A 

service line agreement should address 

the mitigation of any damages incurred 

during construction and the restoration 

of the premises at the termination of the 

agreement. 

§ 169.502 What are the consent 

requirements for service line agreements? 

(a) Before the applicant may begin any 

work to construct service lines across 

tribal land, the applicant and the tribe 

(or the legally authorized occupants or 

users of the tribal land and the tribe) 

must execute a service line agreement. 

(b) Before the applicant may begin 

any work to construct service lines 

across individually owned land, the 

applicant and the owners (or the legally 

authorized occupants or users) must 

execute a service line agreement. 

§ 169.503 Is a valuation required for 

service line agreements? 

We do not require a valuation for 

service line agreements. 

§ 169.504 Must I file service line 

agreements with the BIA? 

The parties must file an executed 

copy of service line agreements, together 

with a plat or diagram, with us within 

30 days after the date of execution for 

recording in the LTRO. The plat or 

diagram must show the boundary of the 

ownership parcel and point of 

connection with the distribution line. 

When the plat or diagram is placed on 

a separate sheet it must include the 

signatures of the parties. 

Dated: June 2, 2014. 

Kevin K. Washburn, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2014–13964 Filed 6–16–14; 8:45 am] 

BILLING CODE 4310–6W–P 

DEPARTMENT OF THE TREASURY 

Alcohol and Tobacco Tax and Trade 

Bureau 

27 CFR Part 9 

[Docket No. TTB–2014–0005; Notice No. 

143] 

RIN 1513–AC07 

Proposed Expansion of the Fair Play 

Viticultural Area 

AGENCY: Alcohol and Tobacco Tax and 

Trade Bureau, Treasury. 

ACTION: Notice of Proposed Rulemaking. 

SUMMARY: The Alcohol and Tobacco Tax 

and Trade Bureau (TTB) proposes to 

expand the approximately 33-square 

mile ‘‘Fair Play’’ viticultural area in El 

Dorado County, California, by 

approximately 1,200 acres 

(approximately 2 square miles). The 

established Fair Play viticultural area 

and the proposed expansion area are 

located entirely within the larger El 

Dorado and Sierra Foothills viticultural 

areas. TTB designates viticultural areas 

to allow vintners to better describe the 

origin of their wines and to allow 

consumers to better identify wines they 

may purchase. TTB invites comments 

on this proposed addition to its 

regulations. 

DATES: Comments must be received by 

August 18, 2014. 

ADDRESSES: Please send your comments 

on this notice to one of the following 

addresses: 

• Internet: http://www.regulations.gov 

(via the online comment form for this 

notice as posted within Docket No. 

TTB–2014–0005 at ‘‘Regulations.gov,’’ 

the Federal e-rulemaking portal); 

• U.S. Mail: Director, Regulations and 

Rulings Division, Alcohol and Tobacco 

Tax and Trade Bureau, 1310 G Street 

NW., Box 12, Washington, DC 20005; or 

• Hand Delivery/Courier In Lieu of 

Mail: Alcohol and Tobacco Tax and 

Trade Bureau, 1310 G Street NW., Suite 

200–E, Washington, DC 20005. 

See the Public Participation section of 

this notice for specific instructions and 

requirements for submitting comments, 

and for information on how to request 

a public hearing or view or obtain 

copies of the petition and supporting 

materials. 

FOR FURTHER INFORMATION CONTACT: 

Karen A. Thornton, Regulations and 

Rulings Division, Alcohol and Tobacco 

Tax and Trade Bureau, 1310 G Street 

NW., Box 12, Washington, DC 20005; 

phone 202–453–1039, ext. 175. 

SUPPLEMENTARY INFORMATION: 

Background on Viticultural Areas 

TTB Authority 

Section 105(e) of the Federal Alcohol 

Administration Act (FAA Act), 27 

U.S.C. 205(e), authorizes the Secretary 

of the Treasury to prescribe regulations 

for the labeling of wine, distilled spirits, 

and malt beverages. The FAA Act 

provides that these regulations should, 

among other things, prohibit consumer 

deception and the use of misleading 

statements on labels, and ensure that 

labels provide the consumer with 

adequate information as to the identity 

and quality of the product. The Alcohol 

and Tobacco Tax and Trade Bureau 

(TTB) administers the FAA Act 

pursuant to section 1111(d) of the 

Homeland Security Act of 2002, 

codified at 6 U.S.C. 531(d). The 

Secretary has delegated various 

authorities through Treasury 

Department Order 120–01 (Revised), 

dated December 10, 2013, to the TTB 

Administrator to perform the functions 

and duties in the administration and 

enforcement of this law. 

Part 4 of the TTB regulations (27 CFR 

part 4) authorizes the establishment of 

definitive viticultural areas and the use 

of their names as appellations of origin 

on wine labels and in wine 

advertisements. Part 9 of the TTB 

regulations (27 CFR part 9) sets forth 

standards for the preparation and 

submission of petitions for the 

establishment or modification of 

American viticultural areas (AVAs) and 

lists the approved American viticultural 

areas. 

Definition 

Section 4.25(e)(1)(i) of the TTB 

regulations (27 CFR 4.25(e)(1)(i)) defines 

a viticultural area for American wine as 

a delimited grape-growing region having 

distinguishing features, as described in 

part 9 of the regulations, and a name 

and a delineated boundary, as 

established in part 9 of the regulations. 

These designations allow vintners and 

consumers to attribute a given quality, 

reputation, or other characteristic of a 

wine made from grapes grown in an area 

to its geographic origin. The 

establishment of AVAs allows vintners 

to describe more accurately the origin of 

their wines to consumers and helps 

consumers to identify wines they may 

purchase. Establishment of an AVA is 

neither an approval nor an endorsement 

by TTB of the wine produced in that 

area. 

Requirements 

Section 4.25(e)(2) of the TTB 

regulations (27 CFR 4.25(e)(2)) outlines 

the procedure for proposing the 

establishment of an AVA and provides 

that any interested party may petition 

TTB to establish a grape-growing region 

as an AVA. Petitioners may use the 

same procedures to request changes 

involving existing AVAs. Section 9.12 of 

the TTB regulations (27 CFR 9.12) 

prescribes standards for petitions for 

modifying established AVAs. Petitions 

to expand an established AVA must 

include the following: 

• Evidence that the region within the 

proposed expansion area boundary is 

nationally or locally known by the name 

of the established AVA; 

• An explanation of the basis for 

defining the boundary of the proposed 

expansion area; 


tkelley on DSK3SPTVN1PROD with PROPOSALS