BY JAY DANIELS
for Buffalo’s Fire
On Sept. 12, 2012, an “Order to Limit the Scope of Relief “ by the plaintiffs was deemed moot by the U.S District Court of North Dakota in Houle v. Central Power Electric Cooperative. The case is tentatively scheduled for hearing in the spring of 2013.
This case involves issues that have been ongoing before the ink had dried on the first Indian treaties. Can the Bureau of Indian Affairs issue a permit allowing utilities to “piggyback” off of existing BIA roads right-of-ways, or also referred to as easements, without landowner consent, or without compensation to the landowner(s)? Income can be lost if there is a road, electric, telephone, Internet line, etc. rolled into the same easement for a road.
This case arises from CPECI’s construction of a 69kv high-voltage transmission line across the Turtle Mountain Indian Reservation, including a tract of allotted land owned by the United States in trust for Houle. CPECI initially did not believe they needed to acquire easements for the underlying land owned by Houle because the BIA granted CPECI a right-of-way permit.
The following key issues in this case are:
• CPECI filed a motion to have the judge dismiss the complaint because the case was resolved in tribal court. The tribal court decision was a form of condemnation. 25 United States Code § 357 permits the condemnation of individually owned Indian land for public purposes. The action must filed in a federal court of jurisdiction and the U.S. government must be a party named in the suit. The tribal court decision was outside the scope of their authority.
• CPECI claims that a Turtle Mountain Band of Chippewa Tribal Resolution authorized CPECI rights-of-ways on allotted lands in contradiction to federal statutes requiring landowner(s) consent.
• CPECI claims that the BIA Roads Department authorized use, or piggybacking, on BIA’s existing road easements. BIA easements include a “purpose” provision. If the easement is for construction and maintenance of a road, use for other purposes violates the terms and could be subject to termination. If BIA granted an easement permit non-compliant with 25 CFR § 169.3(b), it could be deemed void ab initio or an invalid.
Also, easements for construction of a power line of 66kv or higher to generate or transmit power requires a review by the assistant secretary of the Interior for water and power resources (25 CFR § 169.27(b)) before final consideration to grant an easement by the BIA.
The confusion for most landowners is rights-of-way acts applicable to Indian land easements. In this case, I reference two acts specific to Indian lands. The act of March 3, 1901, 25 USC § 311 gave the secretary of the Interior authority to grant road easements to state or local authorities through any reservation or allotment without landowner consent; and the act of Feb. 5, 1948, 25 USC. § 324, which required landowner(s) consent.
CPECI contends that Houle was compensated to consent for the easement pursuant to a tribal court order, but that is neither here nor there because the court exceeded its authority. Houle did not consent in writing as required under 25 CFR § 169.3(b).
Easements essentially limit your right to use a portion of your trust land and restrict your ability to obtain future income for the land taken.
If the subject land is five acres of a 40- acre allotment leased for agriculture, the leased and compensated acreage is diminished for five acres for the entire term of the easement. Easements usually receive a one-time payment to the landowner(s) but there is no income for future heirs unless a schedule of payment is agreed upon. There are ways to safeguard your interests, but it must be negotiated up front. Easements must be treated as a negotiated contractual agreement.
This is a case that could change the way business is done in Indian Country and generate income to Indian landowners. Know your rights because your future heirs depend on it.
Jay Daniels retired from Bureau of Indian Affairs after more than 26 years of service. He has an extensive background in real estate services. He has managed oil and gas leasing, agricultural leasing, residential leasing, acquisition and disposal of land, rights protection, and business leasing.