(a) This part is intended to streamline the procedures and conditions under which BIA will consider a request to approve (i.e., grant) rights-of-way over and across tribal lands, individually owned Indian lands, and BIA 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. This part is also intended to support tribal self-determination and self-governance by acknowledging and incorporating tribal law and policies in processing a request for a right-of-way across tribal lands and defer to the maximum extent possible to Indian landowner decisions regarding their Indian land.

(b) This part specifies:

(1) Conditions and authorities under which we will consider a request to approve rights-of-way over 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-of-way over 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 Indian Reorganization Act of 1934 (25 U.S.C. 476), 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 specifically authorizing rights-of-way on tribal land without our approval.

The following terms apply to this part:

Abandonment means the grantee has affirmatively relinquished a right-of-way (as opposed to relinquishing through non-use) either by notifying the BIA of the abandonment or by performing an act indicating an intent to give up and never regain possession of the right-of-way.

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 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 § 169.008.

BIA land means any tract, or interest therein, in which the surface estate is owned and administered by the BIA, not including Indian land.

Cancellation means BIA action to end a right-of-way grant.

Compensation means something bargained for that is fair and reasonable under the circumstances of the agreement.

Consent means written authorization by an Indian landowner to a specified action.

Easement means an interest, consisting of the right to use or control, for a specific limited purpose, land owned by another person, or an area above or below it, while title remains vested in the landowner.

Encumbered account means a trust account where some portion of the proceeds are obligated to another party.

Fair market value means the amount of compensation that a right-of-way would most probably command in an open and competitive market.

Fractional interest means an undivided interest in Indian land owned as tenancy in common by individual Indian or tribal landowners and/or fee owners.

Grant means the formal transfer of a right-of-way interest by the Secretary's approval or the document evidencing the formal transfer, including any changes made by a right-of-way document.

Grantee means a person or entity to whom the Secretary grants a right-of-way or to whom the right-of-way has been assigned once the assignment is effective.

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 individually owned Indian land and/or 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 in which the surface estate, or an undivided interest in the surface estate, is owned by one or more individual Indians in trust or restricted status.

In-kind compensation means payment is in goods or services rather than money.

Life estate means an interest in property held only for the duration of a designated person(s)' life. A life estate may be created by a conveyance document or by operation of law.

LTRO means the Land Titles and Records Office of BIA.

Map of definite location means a survey plat signed by a professional surveyor or engineer 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 BIA land and with reference to the public surveys under 25 U.S.C. 176, 43 U.S.C. 2 and 1764, and showing existing facilities adjacent to the proposed project.

Permanent improvement means pipelines, roads, structures, and other infrastructure attached to the land subject to the right-of-way.

Right-of-way means an easement or a legal right to go over or across tribal land, individually owned Indian land, or BIA 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; however, in all cases, title to the land remains vested in the landowner. This term does not include service lines.

Right-of-way document means a right-of-way grant, renewal, amendment, assignment, or mortgage of a right-of-way.

Secretary means the Secretary of the Interior or an authorized representative.

Termination means action by Indian landowners to end a right-of-way.

Trespass means any unauthorized occupancy, use of, or action on tribal or individually owned Indian land or BIA 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 in which the surface estate, or an undivided interest in the surface estate, is owned by one or more tribes in trust or restricted status. The term also includes the surface estate of lands held in trust for a tribe but reserved for BIA administrative purposes and includes the surface estate of lands held in trust for an Indian corporation chartered under section 17 of the Indian Reorganization Act of 1934 (25 U.S.C. 477).

Tribal utility means a utility owned by one or more tribes that is established for the purpose of providing utility service, and that is certified by the tribe to meet the following requirements:

(1) The combined Indian tribe ownership constitutes not less than 51 percent of the utility;

(2) The Indian tribes, together, receive at least a majority of the earnings; and

(3) The management and daily business operations of the utility are controlled by one or more representatives of the tribe.

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 and/or individual Indians; or

(2) That one or more tribes and/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.

Utility cooperative means a cooperative that provides public utilities to its members and either reinvests profits for infrastructure or distributes profits to members of the cooperative.

(a) This part applies to Indian land and BIA land.

(b) 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 BIA 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.

(c) 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.

(a) You need an approved right-of-way under this part before crossing Indian land if you meet one of the criteria in the following table:

(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 are authorized by:

(i) A lease under 25 CFR part 162, 211, 212, or 225 or permit under 25 CFR part 166;

(ii) A tribal land assignment or similar instrument authorizing use of the tribal land without Secretarial approval; or

(iii) Other, tribe-specific authority authorizing use of the tribal land without Secretarial approval; or

(iv) Another land use agreement not subject to this part (e.g., under 25 CFR part 84); or

(3) You meet any of the criteria in the following table:

(a) This part covers rights-of-way over and across Indian or BIA 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, even where they are appurtenant 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 (including pump stations, meter stations, and other appurtenant facilities);

(9) Electric transmission and distribution systems (including lines, poles, towers, telecommunication, protection, measurement and data acquisition equipment, other items necessary to operate and maintain the system, and appurtenant facilities);

(10) Telecommunications, broadband, fiber optic lines;

(11) Avigation hazard easements;

(12) Conservation easements not covered by 25 CFR part 84, Encumbrances of Tribal Land—Contract Approvals, or 25 CFR part 162, Leases and Permits; or

(13) Any other new use for which a right-of-way is appropriate but which is unforeseeable as of the effective date of these regulations.

(b) Each of the uses listed above includes the right to access the right-of-way to manage vegetation, inspect, maintain and repair equipment, and conduct other activities that are necessary to maintain the right-of-way use.

BIA will act on requests for 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.

(a) If your right-of-way grant is issued on or after April 21, 2016, this part applies.

(b) If we granted your right-of-way before April 21, 2016, the procedural provisions of this part apply except that if the procedural provisions of this part conflict with the explicit provisions of the right-of-way grant or statute authorizing the right-of-way document, then the provisions of the right-of-way grant or authorizing statute apply instead. Non-procedural provisions of this part do not apply.

(c) If you submitted an application for a right-of-way but we did not grant the right-of-way before April 21, 2016, then:

(1) You may choose to withdraw the document and resubmit after April 21, 2016, in which case this part will apply to that document; or

(2) You may choose to proceed without withdrawing, in which case:

(i) We will review the application under the regulations in effect at the time of your submission; and

(ii) Once we grant the right-of-way, the procedural provisions of this part apply except that if the procedural provisions of this part conflict with the explicit provisions of the right-of-way grant or statute authorizing the right-of-way document, then the provisions of the right-of-way grant or authorizing statute apply instead. Non-procedural provisions of this part do not apply.

(d) For any assignments completed before April 21, 2016, the current assignee must, by August 16, 2016, provide BIA with documentation of any past assignments or notify BIA that it needs an extension and explain the reason for the extension.

(e) To the maximum extent possible, BIA will interpret any ambiguous language in the right-of-way document or statute to be consistent with these regulations.

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 on BIA's behalf 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 fair market value and valuation), cancellation of a right-of-way, or an appeal. Applicants may inquire at either the BIA office or the tribal office to determine whether the tribe has compacted or contracted to administer realty functions.

In addition to the regulations in this part, rights-of-way approved under this part:

(a) Are subject to all applicable Federal laws;

(b) Are subject to tribal law; except to the extent that those tribal laws are inconsistent with applicable Federal law; and

(c) Are generally not subject to State law or the law of a political subdivision thereof.

A right-of-way is a non-possessory interest in land, and title does not pass to the grantee. The Secretary's grant of a right-of-way will clarify that it does not diminish to any extent:

(a) The Indian tribe's jurisdiction over the land subject to, and any person or activity within, the right-of-way;

(b) The power of the Indian tribe to tax the land, any improvements on the land, or any person or activity within, the right-of-way;

(c) The Indian tribe's authority to enforce tribal law of general or particular application on the land subject to and within the right-of-way, as if there were no grant of right-of-way;

(d) The Indian tribe's inherent sovereign power to exercise civil jurisdiction over non-members on Indian land; or

(e) The character of the land subject to the right-of-way as Indian country under 18 U.S.C. 1151.

(a) Subject only to applicable Federal law:

(1) 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;

(2) 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; and

(3) The right-of-way interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State.

(b) Improvements, activities, and right-of-way interests may be subject to taxation by the Indian tribe with jurisdiction.

When this part requires BIA to notify the parties of our intent to grant a right-of-way under § 169.107(b) or our determination to approve or disapprove a right-of-way document, and to provide any right of appeal:

(a) For rights-of-way over or across tribal land, we will notify the applicant and the tribe by first class U.S. mail or, upon request, electronic mail; and

(b) For rights-of-way over or across individually owned Indian land, we will notify the applicant and individual Indian landowners by first class U.S. mail or, upon request, electronic mail. If the individually owned land is located within a tribe's jurisdiction, we will also notify the tribe by first class U.S. mail or, upon request, electronic mail.

(a) Appeals from BIA decisions under this part may be taken under part 2 of this chapter, except our decision to disapprove a right-of-way grant or any other right-of-way document may be appealed only by the applicant or an Indian landowner of the tract over or across which the right-of-way was proposed.

(b) For purposes of appeals from BIA decisions under this part, “interested party” is defined as any person whose land is subject to the right-of-way or located adjacent to or in close proximity to the right-of-way whose own direct economic interest is adversely affected by an action or decision.

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 1076-0181. 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.