IIB
114th CONGRESS
1st Session
H. R. 538
IN THE SENATE OF THE UNITED STATES
October 19, 2015
Received; read twice and referred to the Committee on Indian Affairs
AN ACT
To facilitate the development of energy on Indian lands by reducing Federal regulations that impede tribal development of Indian lands, and for other purposes.
Short title
This Act may be cited as the Native American Energy Act
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Appraisals
Amendment
Title XXVI of the Energy Policy Act of 1992 (25 U.S.C. 3501 et seq.) is amended by adding at the end the following:
Appraisal reforms
Options to Indian Tribes
With respect to a transaction involving Indian land or the trust assets of an Indian tribe that requires the approval of the Secretary, any appraisal relating to fair market value required to be conducted under applicable law, regulation, or policy may be completed by—
the Secretary;
the affected Indian tribe; or
a certified, third-party appraiser pursuant to a contract with the Indian tribe.
Time Limit on Secretarial Review and Action
Not later than 30 days after the date on which the Secretary receives an appraisal conducted by or for an Indian tribe pursuant to paragraphs (2) or (3) of subsection (a), the Secretary shall—
review the appraisal; and
provide to the Indian tribe a written notice of approval or disapproval of the appraisal.
Failure of Secretary To Approve or Disapprove
If, after 60 days, the Secretary has failed to approve or disapprove any appraisal received, the appraisal shall be deemed approved.
Option to Indian Tribes To Waive Appraisal
An Indian tribe wishing to waive the requirements of subsection (a), may do so after it has satisfied the requirements of paragraphs (2) and (3).
An Indian tribe wishing to forego the necessity of a waiver pursuant to this section must provide to the Secretary a written resolution, statement, or other unambiguous indication of tribal intent, duly approved by the governing body of the Indian tribe.
The unambiguous indication of intent provided by the Indian tribe to the Secretary under paragraph (2) must include an express waiver by the Indian tribe of any claims for damages it might have against the United States as a result of the lack of an appraisal undertaken.
Definition
For purposes of this subsection, the term appraisal includes appraisals and other estimates of value.
Regulations
The Secretary shall develop regulations for implementing this section, including standards the Secretary shall use for approving or disapproving an appraisal.
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Conforming amendment
The table of contents of the Energy Policy Act of 1992 (42 U.S.C. 13201 note) is amended by adding at the end of the items relating to title XXVI the following:
Sec. 2607. Appraisal reforms.
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Standardization
As soon as practicable after the date of the enactment of this Act, the Secretary of the Interior shall implement procedures to ensure that each agency within the Department of the Interior that is involved in the review, approval, and oversight of oil and gas activities on Indian lands shall use a uniform system of reference numbers and tracking systems for oil and gas wells.
Environmental reviews of major Federal actions on Indian lands
Section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332) is amended by inserting (a) In general.—
before the first sentence, and by adding at the end the following:
Review of major Federal actions on Indian lands
Review and comment
In general
Except as provided in subparagraph (B), the statement required under subsection (a)(2)(C) for a major Federal action regarding an activity on Indian lands of an Indian tribe shall only be available for review and comment by the members of the Indian tribe, other individuals residing within the affected area, and State, federally recognized tribal, and local governments within the affected area.
Exception
Subparagraph (A) shall not apply to a statement for a major Federal action regarding an activity on Indian lands of an Indian tribe related to gaming under the Indian Gaming Regulatory Act.
Regulations
The Chairman of the Council on Environmental Quality shall develop regulations to implement this section, including descriptions of affected areas for specific major Federal actions, in consultation with Indian tribes.
Definitions
In this subsection, each of the terms Indian land and Indian tribe has the meaning given that term in section 2601 of the Energy Policy Act of 1992 (25 U.S.C. 3501).
Clarification of authority
Nothing in the Native American Energy Act, except section 6 of that Act, shall give the Secretary any additional authority over energy projects on Alaska Native Claims Settlement Act lands.
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Judicial review
Time for filing complaint
Any energy related action must be filed not later than the end of the 60-day period beginning on the date of the final agency action. Any energy related action not filed within this time period shall be barred.
District court venue and deadline
All energy related actions—
shall be brought in the United States District Court for the District of Columbia; and
shall be resolved as expeditiously as possible, and in any event not more than 180 days after such cause of action is filed.
Appellate review
An interlocutory order or final judgment, decree or order of the district court in an energy related action may be reviewed by the United States Court of Appeals for the District of Columbia Circuit. The District of Columbia Circuit Court of Appeals shall resolve such appeal as expeditiously as possible, and in any event not more than 180 days after such interlocutory order or final judgment, decree or order of the district court was issued.
Limitation on certain payments
Notwithstanding section 1304 of title 31, United States Code, no award may be made under section 504 of title 5, United States Code, or under section 2412 of title 28, United States Code, and no amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury to pay any fees or other expenses under such sections, to any person or party in an energy related action.
Legal fees
In any energy related action in which the plaintiff does not ultimately prevail, the court shall award to the defendant (including any intervenor-defendants), other than the United States, fees and other expenses incurred by that party in connection with the energy related action, unless the court finds that the position of the plaintiff was substantially justified or that special circumstances make an award unjust. Whether or not the position of the plaintiff was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the energy related action for which fees and other expenses are sought.
Definitions
For the purposes of this section, the following definitions apply:
Agency action
The term agency action
has the same meaning given such term in section 551 of title 5, United States Code.
Indian land
The term Indian Land
has the same meaning given such term in section 203(c)(3) of the Energy Policy Act of 2005 (Public Law 109–58; 25 U.S.C. 3501), including lands owned by Native Corporations under the Alaska Native Claims Settlement Act (Public Law 92–203; 43 U.S.C. 1601).
Energy related action
The term energy related action
means a cause of action that—
is filed on or after the effective date of this Act; and
seeks judicial review of a final agency action to issue a permit, license, or other form of agency permission allowing:
any person or entity to conduct activities on Indian Land, which activities involve the exploration, development, production or transportation of oil, gas, coal, shale gas, oil shale, geothermal resources, wind or solar resources, underground coal gasification, biomass, or the generation of electricity; or
any Indian Tribe, or any organization of two or more entities, at least one of which is an Indian tribe, to conduct activities involving the exploration, development, production or transportation of oil, gas, coal, shale gas, oil shale, geothermal resources, wind or solar resources, underground coal gasification, biomass, or the generation of electricity, regardless of where such activities are undertaken.
Ultimately prevail
The phrase ultimately prevail
means, in a final enforceable judgment, the court rules in the party’s favor on at least one cause of action which is an underlying rationale for the preliminary injunction, administrative stay, or other relief requested by the party, and does not include circumstances where the final agency action is modified or amended by the issuing agency unless such modification or amendment is required pursuant to a final enforceable judgment of the court or a court-ordered consent decree.
Tribal biomass demonstration project
The Tribal Forest Protection Act of 2004 is amended by inserting after section 2 (25 U.S.C. 3115a) the following:
Tribal biomass demonstration project
In general
For each of fiscal years 2016 through 2020, the Secretary shall enter into stewardship contracts or other agreements, other than agreements that are exclusively direct service contracts, with Indian tribes to carry out demonstration projects to promote biomass energy production (including biofuel, heat, and electricity generation) on Indian forest land and in nearby communities by providing reliable supplies of woody biomass from Federal land.
Definitions
The definitions in section 2 shall apply to this section.
Demonstration projects
In each fiscal year for which projects are authorized, the Secretary shall enter into contracts or other agreements described in subsection (a) to carry out at least 4 new demonstration projects that meet the eligibility criteria described in subsection (d).
Eligibility criteria
To be eligible to enter into a contract or other agreement under this subsection, an Indian tribe shall submit to the Secretary an application—
containing such information as the Secretary may require; and
that includes a description of—
the Indian forest land or rangeland under the jurisdiction of the Indian tribe; and
the demonstration project proposed to be carried out by the Indian tribe.
Selection
In evaluating the applications submitted under subsection (c), the Secretary—
shall take into consideration the factors set forth in paragraphs (1) and (2) of section 2(e) of Public Law 108–278; and whether a proposed demonstration project would—
increase the availability or reliability of local or regional energy;
enhance the economic development of the Indian tribe;
improve the connection of electric power transmission facilities serving the Indian tribe with other electric transmission facilities;
improve the forest health or watersheds of Federal land or Indian forest land or rangeland; or
otherwise promote the use of woody biomass; and
shall exclude from consideration any merchantable logs that have been identified by the Secretary for commercial sale.
Implementation
The Secretary shall—
ensure that the criteria described in subsection (c) are publicly available by not later than 120 days after the date of enactment of this section; and
to the maximum extent practicable, consult with Indian tribes and appropriate intertribal organizations likely to be affected in developing the application and otherwise carrying out this section.
Report
Not later than one year subsequent to the date of enactment of this section, the Secretary shall submit to Congress a report that describes, with respect to the reporting period—
each individual tribal application received under this section; and
each contract and agreement entered into pursuant to this section.
Incorporation of management plans
In carrying out a contract or agreement under this section, on receipt of a request from an Indian tribe, the Secretary shall incorporate into the contract or agreement, to the extent practicable, management plans (including forest management and integrated resource management plans) in effect on the Indian forest land or rangeland of the respective Indian tribe.
Term
A stewardship contract or other agreement entered into under this section—
shall be for a term of not more than 20 years; and
may be renewed in accordance with this section for not more than an additional 10 years.
Tribal forest management demonstration project
The Secretary of the Interior and the Secretary of Agriculture may carry out demonstration projects by which federally recognized Indian tribes or tribal organizations may contract to perform administrative, management, and other functions of programs of the Tribal Forest Protection Act of 2004 (25 U.S.C. 3115a et seq.) through contracts entered into under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.).
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Tribal resource management plans
Unless otherwise explicitly exempted by Federal law enacted after the date of the enactment of this Act, any activity conducted or resources harvested or produced pursuant to a tribal resource management plan or an integrated resource management plan approved by the Secretary of the Interior under the National Indian Forest Resources Management Act (25 U.S.C. 3101 et seq.) or the American Indian Agricultural Resource Management Act (25 U.S.C. 3701 et seq.), shall be considered a sustainable management practice for purposes of any Federal standard, benefit, or requirement that requires a demonstration of such sustainability.
Leases of restricted lands for the Navajo Nation
Subsection (e)(1) of the first section of the Act of August 9, 1955 (25 U.S.C. 415(e)(1); commonly referred to as the Long-Term Leasing Act
), is amended—
by striking , except a lease for
and inserting , including leases for
;
in subparagraph (A), by striking 25
the first place it appears and all that follows and inserting 99 years;
;
in subparagraph (B), by striking the period and inserting ; and
; and
by adding at the end the following:
in the case of a lease for the exploration, development, or extraction of mineral resources, including geothermal resources, 25 years, except that any such lease may include an option to renew for one additional term not to exceed 25 years.
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Nonapplicability of certain rules
No rule promulgated by the Department of the Interior regarding hydraulic fracturing used in the development or production of oil or gas resources shall have any effect on any land held in trust or restricted status for the benefit of Indians except with the express consent of the beneficiary on whose behalf such land is held in trust or restricted status.
Passed the House of Representatives October 8, 2015.
Karen L. Haas,
Clerk
