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Obama Administration proposes new rules for leasing on Native American lands
“This reform underscores President Obama’s commitment to empower Indian nations and strengthen their economies by expanding opportunities for individual landowners and tribal governments -- generating investment, new jobs and revenues.” - Ken Salazar, Secretary of the Interior
In an effort to stimulate certain development on Native American lands, the Department of Interior (DOI) has proposed new rules that will expedite leasing permits for residential, business and wind and solar leases. These rules will replace regulations that have not been updated in 50 years, but will not affect regulations regarding agricultural or subsurface leases, which may be revised at some later point. The Bureau of Indian Affairs (BIA) can now expedite leases to speed economic development on Native American lands.
The DOI holds approximately 56 million acres in trust for Native American tribes and individuals. The old rules required that BIA review every lease prior to approval, regardless of the size of the leasehold. That meant that every lease, no matter how small, would receive the same review as an extremely large lease, resulting in unnecessary delays.
Under the new rules, the BIA has 30 days to make a decision on residential leases. Solar and business leases must be reviewed within 60 days. Currently existing leases and subleases will be automatically approved if the review extends beyond the time requirement. In addition, some activities on Native American lands will not require reviews if they have been approved by Native American Tribes or individuals. Finally, the regulation will impose a streamlined process for wind and solar energy projects on Native American lands.
DOI has also expressed the Obama Administration's support for the "Helping Expedite and Advance Responsible Tribal Homeownership Act" or HEARTH Act. The HEARTH Act also reforms federal leasing requirements and allows Native Americans to develop their own regulations concerning leases on restricted lands for business, agricultural, public, religious, educational, recreational, or residential purposes without the approval of the DOI. However, under the Act, DOI would have to review and approve the regulations adopted by the Native American tribes.
The proposed rules are subject to a 60-day public comment period. After a review of the comments to the regulations, DOI expects that a final rule will be promulgated in the spring or summer of 2012.
The author, Saulius Mikalonis, is an environmental attorney with over 25 years of experience in the Bloomfield Hills offices of Plunkett Cooney. He is also the author of The Green Blawg, in which he writes about environmental law issues for the non-lawyer. In addition to practicing law, Mr. Mikalonis is an adjunct professor at the Thomas M. Cooley Law School, Auburn Hills Campus, at which he teaches a course entitled "Sustainable Development Law & Policy" and a Board Member of the Detroit Regional Chapter of the United States Green Building Council (USGBC).
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