COMMENTS OF THE EDISON ELECTRIC INSTITUTE ON THE … · 11/26/2014 · BIA-2014-0001; DR.5B711.IA000814. 79 Fed. Reg. 34455 (Jun. 17, 2014) (Proposed Rule). The proposed rule is

COMMENTS OF THE EDISON ELECTRIC INSTITUTE

ON THE RIGHTS-OF-WAY ON INDIAN LAND

Docket No. BIA–2014–0001; DR.5B711.IA000814

November 26, 2014

The Edison Electric Institute (EEI) submits these comments on the proposed rule entitled:

Rights-of-Way on Indian Land and issued by the Bureau of Indian Affairs (BIA) in Docket No.

BIA-2014-0001; DR.5B711.IA000814. 79 Fed. Reg. 34455 (Jun. 17, 2014) (Proposed Rule).

The proposed rule is intended to 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 leasing regulations, which BIA finalized in December 2012, by

applying them to the rights-of-way context where applicable.

EEI is the association that represents U.S. investor-owned electric companies, with

international affiliates and industry associates worldwide. Our members provide electricity for

220 million Americans, operate in all 50 states and the District of Columbia, and directly employ

more than 500,000 workers. With more than $85 billion in annual capital expenditures, the

electric power industry is also responsible for millions of jobs outside of our direct operations.

Reliable, affordable, and sustainable electricity powers the economy and enhances the lives of all

Americans.

In providing electricity for their customers, EEI member companies operate electric

transmission and distribution lines and other electric system facilities on lands of many tribes.

As such, EEI and its members have a direct interest in BIA’s rulemaking. We recognize and

appreciate the positive contribution to the nation’s energy infrastructure that the tribes and their

EEI Comments on BIA Proposed Rule for

Rights-of-Way on Indian Land at 25 CFR Part 169

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individual members have made in the past by allowing transmission and distribution rights-of-

way and other electric facilities on Indian lands. It is important that electric utilities and their

customers be able to continue to rely on those transmission, distribution, and other facilities,

confident that the rights-of-way for the facilities will remain available in the long term at

reasonable cost, for reasonable permit durations, and subject to reasonable conditions. The

process for obtaining and renewing such rights-of-way should provide for consistency and

predictability, and fees should be based on a commercially accepted valuation standard for

valuing the encumbered land.

Executive Summary

The preamble to the proposed rule states that the proposal is intended to update and

streamline the procedures and conditions under which the BIA will approve rights-of-way over

and across Indian lands, which the proposed rule at 25 CFR § 169.001 describes as including

tribal lands, individually owned Indian lands, and Government-owned lands. Specifically, the

proposed rule calls for eliminating the need to obtain BIA consent for certain activities requiring

access to right-of-ways and providing greater deference to tribes on compensation for rights-of-

way, among other changes. However, a number of these changes have the potential to add

substantial costs and uncertainty to the current process for obtaining new or renewed rights-of-

way on Indian lands.

In order to streamline the process for obtaining and renewing rights-of-way on Indian

lands, BIA should retain the authority to approve the rights-of-way and to permit access to them

where obtaining consent of all Indian landowners would be impractical. Also, while EEI

recognizes and appreciates the unique sovereignty interests that tribes have in managing their



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lands and their interest in obtaining just compensation for use of their lands, we encourage BIA

to provide reasonable guidelines as to just compensation and fees and to act as a moderating

influence to ensure reasonable charges to grantees. Our member companies are required to

provide reliable electric service at the lowest cost to consumers. Yet they face increased

operating costs where methodologies used to set fees for rights-of-way are not based on the

economic value of the land being used or are not consistent with widely accepted appraisal

practices use by the federal government and the private sector.

Taken together, BIA’s proposed changes affecting the right-of-way application and

approval process, compensation and fees, and use and duration of rights-of-way are likely to

make new rights-of-ways and renewals for existing rights-of-ways prohibitively expensive and to

reduce the ability of companies to rely on the rights-of-way. Uncertainties associated with

renewals of existing rights-of-way across Indian land already are increasingly leading companies

to avoid siting new transmission and distribution facilities on such lands if possible. In some

instances, avoiding Indian lands has become the standard approach to siting. For renewals on

existing rights-of-way, some companies are beginning to explore the option of rerouting existing

facilities off of Indian lands, often at substantial cost to ratepayers. We encourage BIA to look

for ways to make the use of rights-of-way on Indian lands more affordable, reasonable and

dependable.

EEI members appreciate the BIA’s efforts in its current proposal to update and modernize

the process for obtaining rights-of-way grants. EEI members welcome this initiative and submit

the following detailed comments on the proposed new regulations at 25 CFR Part 169 in hopes

of assisting the BIA in developing a final rule that provides clear oversight and guidance, in



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order to work towards mutually acceptable processes that regulate rights-of-ways across Indian

lands.

Concerns About Specific Proposed Regulatory Provisions

The following discussion refers to the proposed new regulations, which would be

codified at 25 CFR Part 169.

§ 169.002 What terms do I need to know?

The objective of a service line agreement, as noted in current regulations §169.002, is to

“encourage the use of telephone, water, electric power, gas, and other utilities and to facilitate

the extension of these modern conveniences to sparsely settled Indian areas without undue

costs.” The current regulation states that “A service line shall be for the sole purpose of

supplying the individual owner or authorized occupant or use of land” with such services.

However, the proposed rule would narrow this definition significantly by stating:

Service line means a utility line running from a main line that is used only for supplying

owner or authorized occupants or users of land with telephone, water, electricity, gas,

internet service, or other home utility service.

EEI maintains that a service line is not just a single line extension running directly from a

main line to a household or authorized occupant. It is recommended that a service line

agreement should apply to any distribution line or facility that plays a part in the energy delivery

process on Indian land to serve the tribe, individual Indians, and other authorized inhabitants and

occupants. For example, a distribution main line that provides service to five residences on

Indian land (and may rely on five transformers and single lines) is all part of the overall system

serving these customers.



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The federal regulations should allow utility companies and tribal governments the

flexibility to build utility infrastructure through a service line agreement process when

applicable. A broadened definition of service line under §169.002 is suggested:

Service line means any distribution facilities or systems that are constructed and used for

the sole purpose of supplying owners or authorized occupants of Indian Land with

telephone, water, electricity, gas, internet service, or other utility services, regardless of

size, type, capacity, length or number of facilities.

§ 169.008 What laws apply to rights-of-way approved under this part?

EEI recommends that the BIA strike §169.008 in its entirety before adopting the

proposed rule. Section 169.008 is problematic on multiple grounds. First, this section is not

needed for the primary purpose of the proposed rule, which is to establish the procedures for

obtaining rights-of-way on Indian lands. Second, §169.008 complicates the proposed rule

significantly by delving into the complex issues of tribal, federal, state, and local jurisdiction

regarding Indian lands. The jurisdictional issue over Indian lands has been debated and

addressed for over two centuries, and continues to be debated and addressed, in countless federal

laws and regulations, tribal rules, and Supreme Court decisions (e.g. Montana v. U.S., 450 U.S.

544 (1981), Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408

(1989), and Nevada v. Hicks, 533 U.S. 353 (2001)). For §169.008 to provide a summary decree

of the relative jurisdictional rights of tribal, federal, state, and local governments on Indian lands

is both beyond the authority of the BIA and completely unnecessary for establishing the

procedures for obtaining rights-of-way on Indian lands.

In addition, § 169.008 ignores the fact that many rights-of-way on Indian lands are used

by public utilities that are regulated by state public utility commissions (PUCs). In many states,



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electrical service to all customers within specifically defined service territories, including

customers located on Indian lands, is governed by the regulations of the state PUCs. Electric

utilities’ service rules and tariffs on file with the PUCs generally include rules for acquiring

rights-of-way to serve customers. As an example, one EEI member’s filing with their state PUC

has the following sections:

Rights-of-Way and Easements. The Company will construct, own, operate, and

maintain lines only along public streets, roads, and highways that the Company

has the legal right to occupy, and on public lands and private property across

which rights-of-way or easements satisfactory to the Company will be obtained at

the Applicant’s or Additional Applicant’s expense.

Rights-of-Way and Easement Charge. Applicants or Additional Applicants will be

responsible for any costs associated with the acquisition of rights-of-way or

easements.

These two sections specify that the customer requesting a line extension from the utility

is responsible for the cost of acquiring the rights-of-way for the power line, which may cross

multiple land parcels. However, since §169.008 prohibits the application of state law on Indian

lands (unless expressly agreed to by the tribe or expressly applied by Congress or federal courts),

the tribe could ignore the line extension rules and require that electric utility companies pay for

the right-of-way costs for line extensions, rather than the customer requesting the extension.

This would call into question the application of the electric utility tariff rules on Indian lands,

including the company’s obligation to provide electric service under state law.

Furthermore, by thus truncating state jurisdiction regarding Indian lands, § 169.008

invalidates a key procedural assurance regarding Federalism provided at section IV.F of the

proposed rule preamble, which says:

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



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States, or on the distribution of power and responsibilities among the various

levels of government. This rule only concerns BIA’s grant of rights-of-way on

Indian land.

In sum, EEI recommends that the BIA strike §169.008 in its entirety because the

section’s declarations regarding jurisdiction on Indian lands (a) exceed the authority of the BIA,

(b) are unnecessary for establishing the procedures for obtaining rights-of-way on Indian lands

under the proposed rule, (c) ignore the application of state laws and regulations to utility service

provided on Indian lands, and (d) run counter to BIA’s assurance that the proposed rule has no

substantial direct effect on states and the relationship between the national government and the

states.

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

Section 169.009 states that activities and permanent improvements on Indian land rights-

of-way are not subject to any taxes by states or political subdivisions of states, but may be

subject to taxation by the Indian tribe with jurisdiction. The BIA extends its authority too far by

expressly providing that improvements and activities within the right-of-way granted could be

subject to taxation. This section also runs contrary to current practices where utilities pay county

property taxes for facilities located on Indian lands. As with §169.008 above, §169.009 appears

to represent an unnecessary foray into jurisdictional issues regarding Indian lands. EEI requests

that BIA delete this provision.

§ 169.011 May decisions under this part be appealed?

Section 169.011(a) (1) should be modified to state:

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

landowner, right-of-way applicant or grantee, or other interested party.



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§ 169.101 How do I obtain a right-of-way across tribal or individually owned Indian land?

EEI assumes that the proposed regulations would govern obtaining rights-of-way on all

Indian lands, including Government-owned lands managed in trust for tribes. BIA should clarify

this in the context of the application provisions of § 169.101.

In addition, EEI seeks more streamlining with respect to § 169.101(b)(2) relating to

notification and consent of individual Indian landowners to access their land. Many tracts can be

fractured, thereby causing the number of landowners to be in the hundreds. As a result, in order

to carry out the intent of truly streamlining the right-of-way acquisition process as purported by

the BIA, EEI suggests that obtaining consent by “the majority” may not be practically achievable

as the number of landowners increases. Instead, EEI suggests a reduction from the majority

standard as the number of landowners increases, or some other reasonable methodology to reflect

consent when the number of landowners is administratively unwieldy. At a minimum, BIA

should retain the authority to permit access to Indian land to prepare information required for

right-of-way applications (e.g. to conduct surveys) without the consent of all Indian landowners

under the same conditions in § 169.107 (b)(1); i.e. if “the owners of interest in land are so

numerous that it would be impractical to obtain consent.”

§ 169.102 What must an application for a right-of-way include?

EEI recommends that BIA delete provision § 169.102(c) and instead develop a

standardized application form to provide certainty and consistency for applicants. This will also

aid both applicants and the BIA in their evaluation of when an application is deemed to be

complete.



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EEI recommends that BIA provide additional clarity regarding what “promptly” means in

the regulations by adding specific time frames. For example, the term is used in § 169.119(b) [“

… we will promptly notify the applicant whether the packages is complete…”]. Here EEI would

recommend that BIA revise this provision to state that it “will notify the applicant within five

business days…”

EEI also recommends that BIA update its notification provisions in the regulations to

state that it will notify applicants by e-mail, where e-mail contact information is provided the

applicant, as well as by mail.

§ 169.103 What bond must accompany the application?

EEI recommends deleting the requirement in § 169.103 relating to the obligation of a

utility to include a payment of a performance bond or alternative form of security with its right-

of-way application. This provision would unnecessarily tie up the applicant’s funds for

potentially a lengthy period while the application is pending. Moreover, the requirement would

add administrative burden for the BIA, which must return these funds in the event of a denial of

an application. In lieu of this requirement, EEI suggests that the BIA implement a credit-

worthiness test that could be met through a commonly available metric such as investment-grade

ratings or the like that can bypass this additional cost to investor-owned utilities.

§ 169.104 What is the release process for a performance bond or alternative form of

security?

In conjunction with EEI comments on § 169.103, § 169.104 would not be applicable if

such requirement is eliminated.



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§ 169.107 Must I obtain individual Indian landowners’ consent to a grant of right-of-way

across individually-owned land?

In recent years, EEI member companies have seen the costs of obtaining individual-

owner allotment consents for rights-of-ways escalate at an alarming rate. In some cases, the

costs of obtaining consents, in accordance with BIA regulations, has far exceeded the amount of

actual right-of-way payments owed and paid to allotment owners based on the market value of

the right-of-way. A significant driver of this increase is the need to locate individual-owners

who are scattered throughout Indian lands or even the entire country. This category of

individuals is commonly referred to by the BIA and industry as “Whereabouts Unknown.” BIA

staff often have instructed our member companies to make multiple efforts to contact such

individuals, not only by mail or phone, but also by vehicle to isolated portions of Indian lands,

with little or no chance of locating the person owning a small percentage interest in the

allotment.

EEI suggests that the regulations addressing the obtaining of consents from individual

allotment owners (identified as “whereabouts unknown”) provide for a “constructive notice”

procedure which will insure that serious, but not overly excessive, efforts are made by the

applicant to locate such individuals.

The processes defined under proposed §169.002 (constructive notice) should be

incorporated into §169.107, and additional processes should be delineated within the regulations,

in order to streamline obtaining consents from individual landowners. We recommend that BIA

adopt the following “constructive notice” provision:

The applicant shall provide constructive notice either by: announcement via local radio

advertisement; notice published in the local newspapers(s) nearest to affected land;

posted notice at the chapter house(s) nearest to the affected land; or posted notice at the



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BIA Offices and website nearest to the affected land. Notice shall be posted and

documented for a minimum of 30 days and contain the Allotment Number, Owner’s

Name(s), and information regarding the applicant’s contact information. If an individual

owner does not respond to the public notice within 60 days of initial posting, the

individual owner’s whereabouts shall be considered unknown and documented by the

BIA.

EEI asks for clarification with respect to § 169.107(d), which states: “The right-of-way

will not bind a non-consenting Indian tribe, except with respect to the tribally owned fractional

interest, and the non-consenting 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.” At

a minimum, all owners of Indian lands involved in an approved right-of-way must be bound by

its terms, to give the right-of-way proper legal effect.

§ 169.109 How much monetary compensation must be paid for a right-of-way affecting

tribal land?

The proposed rule continues to allow unlimited compensation for rights-of-way over

tribal lands. EEI strongly objects to this standard. At a minimum, section 169.109 must be

modified to provide valuation limits for right-of-way renewals for existing utility facilities on

tribal land. The BIA’s current rules for rights-of-way over Indian lands at 25 CFR Part 169 do

not provide limitations for right-of-way compensation, and the result has been wildly excessive

fees for power line right-of-way renewals on Indian lands.

For existing power lines, particularly large transmission lines, utilities often may not have

the option to remove or relocate the lines off Indian lands without great expense and/or system

degradation. In such cases, Indian tribes have a virtual blank check to demand whatever amount

they wish for the right-of-way renewal, regardless of the actual market value of the land in



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question. This approach is at odds with the federal government’s efforts to promote power line

development and reliable critical infrastructure.

Furthermore, new facilities are unlikely to be constructed on Indian lands if there is no

limit on the price for securing and renewing rights-of-way for the facilities. EEI recommends

establishing land valuation schedules for right-of-way grants on Indian lands – similar to the land

valuation schedules used for right-of-way grants across Bureau of Land Management (BLM) and

Forest Service lands – or employing the Uniform Appraisal Standards for Federal Land

Acquisitions (USAFLA, commonly known as the “yellow book”) or the Uniform System of

Professional Appraisal Practice (USPAP), to arrive at monetary compensation for rights-of-way

on tribal lands.

§ 169.110 How much monetary compensation must be paid for a right-of-way affecting

individually owned Indian land?

The proposed regulations contain language that broadens the range of valuation

methodologies for rights-of-ways on individually-owned Indian land, including allotments. A

standard application and methods to appraise both tribal and individually owned Indian lands

should be adopted in order to provide a consistent approach to determine a fair market value for

rights-of-way across those lands, both at initial acquisition and on renewal.

Again, we encourage BIA to adopt the federal land agency valuation method, the yellow

book or USPAP, to determine the fair market value of the rights-of-way on Indian lands. The

valuation ranges provided for BLM and Forest Service lands provide the best and most

applicable valuation limits for rights-of-way over tribal and individually owned Indian land.

Alternatively, BIA could work with the tribes and industry to establish a reasonable and fair



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methodology that builds on these widely accepted approaches. A systemic approach agreed to

by tribes and industry alike, to the processes and valuation governing right-of-way grants and

renewals, should be evaluated in order to protect the utility rate-payer, including tribal

customers, while adequately compensating tribal governments and owners of individual

allotments.

In addition, §169.110 must be modified to eliminate the references to hypothetical

valuation methodologies that are entirely unfitting for land valuations, as follows:

(a) A right-of-way affecting individually owned Indian land must require

payment of not less than fair 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 the

amount of the right-of-way payments 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.

The proposed valuation methodologies of “percentage of the projected income,”

“throughput fees,” and “avoidance value” are difficult, cumbersome, and wholly inappropriate

for valuing land rights-of-way. Attempting to establish the “projected income” or “throughput

fees” for a power line would be an exercise in futility, considering that one particular segment of

a power line typically represents only a miniscule fraction of a power company’s entire

generation, transmission, and distribution system. “Avoidance value” is also an amorphous term

that could be claimed to represent the utility’s cost of relocating an existing power line to a

location off Indian lands, which could cost multiple millions of dollars. Accepted right-of-way

valuation methodologies focus on the fair market value (FMV) of the underlying land, which is

the standard that applies if EEI members are forced to seek legal recourse to obtain rights-of-way



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over particular lands. The BIA’s use of alternate right-of-way valuation methodologies in

§169.110 could threaten the viability of existing utility facilities and needs to be removed.

The proposed rule would allow tribal governments to impose additional fees and

damages, at the tribe’s sole discretion, including: additional damages, severance fees, avoidance

fees, application fees, and bonuses. By contrast, the current regulations (at §169.13 Other

Damages) only require additional compensation for “damages incident to the survey of the ROW

or incident to the construction or maintenance of the facility.”

In past years, EEI member companies have been able to arrive at mutually acceptable

terms related to such fees when warranted without the proposed new language. The proposed

revisions to the regulations would increase uncertainty in negotiations. Instead, the regulations

should provide a transparent and balanced approach with respect to the processes and

methodologies used to determine fees, other damages, and value. EEI encourages BIA to return

to the narrower current § 169.13 “other damages” language.

§ 169.111 How will BIA determine market value for a right-of-way?

Again, EEI recommends revising §169.111(b) to provide that the BIA will use standard

practices such as those used by the federal land agencies, the yellow book or USPAP, to provide

a reasonable, consistent and certain methodology for both parties or a certified appraiser instead

of preparing its own market analysis, appraisal or other valuation method.

§ 169.113 Must a right-of-way specify who receives monetary compensation payments?

EEI is concerned that the proposal to have grantees pay individual landowners directly

may be difficult in practice and runs counter to BIA’s trust responsibilities. Grantees may not

have the wherewithal to track changes in ownership and liens or other constraints (for example



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relating to child support) that may apply to payments to particular owners. Furthermore, BIA is

the trustee for funds paid for use of Indian lands and should be the entity to which payments are

made so BIA can implement that responsibility.

§ 169.115 May the right-of-way provide for non-monetary or varying types of

compensation?

Section 169.115(a)(1) should be modified to eliminate inappropriate valuation

methodologies in alternative forms or varying types of compensation. Thus, §169.115(a)(1)

should be modified to state:

(1) Alternative forms of compensation, including but not limited to in-kind

consideration; or

Furthermore, §169.115(a)(2) should be eliminated in its entirety due to the difficulty in

calculating the varying types of compensation proposed during the life of the right-of-way grant

such as fixed annual payments during construction, payments based on income during an

operational period, and bonuses.

§ 169.117 Must a right-of-way grant provide for compensation reviews or adjustments?

Section 169.117 should be deleted in its entirety. Under the current BIA regulations,

there is no provision for reviewing or adjusting compensation payable under a right-of-way grant

on Indian lands, and none should be added in the revised regulations. If the parties wish to

provide for future compensation reviews or adjustments in a right-of-way grant, they can include

such a provision in the grant for either tribal land or individually owned Indian land. Utility

companies already are facing rising costs for the renewal of existing transmission line rights-of-

way over both tribal and individually owned Indian lands. Under the proposed rule, a utility

could be faced with additional unlimited compensation payments under § 169.117 every five



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years during the term of the right-of-way grant for individually owned Indian lands. This runs

contrary to current right-of-way practices on Indian and non-Indian lands and so is patently

unfair.

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

EEI encourages BIA to provide a link or other way for readers to obtain the Standards for

Indian Trust Land Boundary Evidence referenced at §169.121(c).

§ 169.122 May a right-of-way contain a preference consistent with tribal law for

employment of tribal members?

EEI objects to a provision in a right-of-way grant requiring the grantee to give a

preference for employment of tribal members or any other extension of tribal rights expressly

allowed through these regulations. This could easily run afoul of utility employment and

contracting requirements, including applicable labor laws and agreements. Also, this provision

is inconsistent with the stated purpose and intent of the rulemaking, which is to develop the

procedures for approving rights-of-way.

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

The term for “Electric power projects, generating plants, switchyards, electric

transmission and distribution lines (including poles, towers and appurtenant facilities)” set forth

in the table in §169.201 should be increased from “50 years” to “In Perpetuity,” to match the

term set forth for “Utility Gas Lines.” If BIA chooses to retain the 50-year term, our members

request that BIA remove the five-year compensation review language in §169.117(c); or

lengthen the compensation review periods to every 25 years.



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§ 169.303 What happens if BIA denies a right-of-way document?

The following change should be made to § 169.303, consistent with EEI’s proposed

change to §169.011 above.

If we deny the right-of-way grant, renewal, amendment, assignment, or mortgage,

we will notify the parties immediately and advise the landowners and the

applicant of their right to appeal the decision under part 2 of this chapter.

§ 169.403 May a right-of-way provide for negotiated remedies?

Proposed subsection 169.403(c) states that “The parties must notify any surety or

mortgagee of any violation that may result in termination and the termination of a right-of-way.”

Required notifications to sureties or mortgagees is a private matter determined by the company

and the surety or mortgagee and should not be addressed in the BIA regulations. Accordingly,

proposed §169.403(c) should be deleted.

§ 169.404 What will BIA do about a violation of a right-of-way grant?

Subsection 169.404(b) should be amended as follows:

(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 30 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.



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The deletion of §169.404(b)(3) is appropriate because the grantee should not be required

to cease operations on the right-of-way grant before the grantee has had the opportunity to cure

the alleged violation under §169.404(b)(2). Such a measure should not be applied without good

cause and an opportunity for appeal.

§ 169.503 Is a valuation required for service line agreements?

Section 169.503 should specify that there will be no charge to the grantee for service line

agreements as indicated in the following markup. Service line agreements are for the installation

of facilities specifically to provide service the individual Indian land owner(s), and the grantee

should not be charged a fee or other expense to provide that service.

We do not require a valuation for service line agreements. In order to

encourage the use of telephone, water, electric power, gas and other utilities and

to facilitate the extension of these modern conveniences to sparsely settled Indian

areas without undue costs, there will be no charge to the grantee for service line

agreements.

This change is consistent with electric utility line extension rules, which require the

applicant to provide the electric utility with access to the applicant’s premises for any purpose

connected with furnishing electric service (e,g, meter reading, inspection, testing, routine repairs

and maintenance). For example, one company’s right-of-way provisions on file at its PUC

specify:

7. Rights of Way. The Customer shall, without cost to the Company, grant the

Company a right of way for the Company's lines and apparatus across and upon

the property owned or controlled by the Customer, necessary or incidental to the

supplying of Electric Service and shall permit access thereto by the Company’s’

employees at all reasonable hours.

§ 169.504 Must I file service line agreements with the BIA?

The following correction should be made to §169.504:



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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 of the service line with the distribution line. When the

plat or diagram is placed on a separate sheet it must include the signatures of the

parties.

Conclusion

EEI recognizes and appreciates the unique sovereignty interests that tribes have in

managing their lands. Close collaboration between EEI member companies and tribal, state,

federal and local governments is essential for the siting, permitting and operation of power lines

on Indian land. EEI encourages BIA to address the issues of concern identified in these

comments and to facilitate the needed collaboration between utilities and Indian land

owners. BIA can and should help to find a middle ground that accommodates tribal consent but

allows electric utilities to provide reliable, economical and clean electricity to all customers in

compliance with federal, state, local government and tribal regulations.

Documents

COMMENTS OF THE EDISON ELECTRIC INSTITUTE ON THE … · 11/26/2014 · BIA-2014-0001; DR.5B711.IA000814. 79 Fed. Reg. 34455 (Jun. 17, 2014) (Proposed Rule). The proposed rule is