4.07.030 Rights of Way

(a) Definitions

Terms not defined in this ordinance shall have the meanings set forth at 25 C.F.R. Part 169.

(b) Application

(1) An applicant for Right-of-Way Agreement shall submit to the Realty Officer a complete application, including

(A) The applicant's name and address;

(B) The purpose of the Right-of-Way and a statement describing the Public Interest(s) it serves;

(D) The permanent Improvements associated with the Right-of-Way and the proposed responsibility for constructing, operating, maintaining, and managing permanent Improvements and how the applicant proposes to meet the due diligence requirements prescribed at 25 C.F.R. § 169.105;

(E) The proposed ownership and disposition of Improvements upon termination of the Right-of-Way;

(F) An accurate legal description of the Right-of-Way, its boundaries, and parcels associated with the Right-of-Way;

(G) A map of definite location of the Right-of-Way;

(H) Bonds, insurance, and/or other security meeting the requirements of Section 4.07.030(d) and federal regulations;

(I) If the applicant is a corporation, limited liability company, partnership, joint venture, or other legal entity, except a Tribal Entity, information such as organizational documents, certificates, filing records, and resolutions, demonstrating that:

(i) The representative has authority to execute the application;

(ii) The Right-of-Way will be enforceable against the applicant; and

(iii) The legal entity is in good standing and authorized to conduct business in the jurisdiction where the land is located;

(J) Environmental and archaeological reports, surveys, and site assessments, as needed to facilitate compliance with applicable Federal and tribal environmental and land use requirements.

(1) An applicant who owns, operates, licenses or otherwise benefits from, unauthorized existing facilities on Tribal Land, or any applicant who is the successor-in-interest of such owner, operator, licensee or beneficiary, shall include in the application a notarized statement describing -

(A) the date and the circumstances under which the facilities were placed on Tribal Lands,

(B) whether the facilities whether the siting of the facilities on Tribal Lands was approved;

(D) copies of any documentation related to the above matters.

(2) No Right-of-Way application shall be considered complete for an applicant described under paragraph (a) unless the applicant first pays to the Tribe the surcharge amount described below, multiplied by the length (in feet) of the unauthorized energy product line or other facility, multiplied by the diameter of the line or other facility, multiplied by the number of years, or fraction thereof, that the facility was present without authorization. The Council, may, at its discretion, agree to a lesser amount in the public interest, such as for facilities providing service to the Tribe or its members:

(A) The surcharge amount for applications otherwise complete and filed before January 31, 2020 shall be $0.10.

(B) The surcharge amount for applications otherwise complete and filed after January 31, 2020 shall be $0.15 and shall be indexed annually for inflation each year thereafter.

(d) Security Document Requirements

(1) Unless the Tribe determines that the best interests of the Tribe will be served by waiving the requirement, an applicant must provide bonds, insurance or alternative forms of security in amounts that cover:

(A) The highest annual rental specified in the grant, unless compensation is a one-time payment made at the time the Right-of- Way is approved;

(B) The estimated damages resulting from the construction of any Improvements;

(C) The estimated damages and remediation costs from any potential release of contaminants, explosives, hazardous material or waste;

(D) The operation and maintenance charges for any land located within an irrigation project;

(E) The restoration of the premises to their condition at the start of the Right-of-Way or reclamation to some other specified condition if agreed to by the landowners.

(2) The bond or other security must be deposited with and made payable to the Tribe and may not be modified without the approval of the Tribe. Any insurance must identify both the Tribe and the United States as additional insured parties.

(3) The Right-of-Way Agreement will specify the conditions under which the bond, insurance, or security requirements may be adjusted to reflect changing conditions.

(4) The Tribe may require that the surety provide any supporting documents needed to show that the bond, insurance, or alternative form of security will be enforceable, and that the surety will be able to perform the guaranteed obligations.

(5) The bond, insurance, or other security instrument must require the surety to provide notice to the BIA and the Tribe, at least 60 days before canceling a bond, insurance, or other security.

(6) Bonds or alternative security must satisfy the requirements of 25 C.F.R. § 169.103.

(e) Due Diligence

(1) If permanent Improvements are to be constructed, the Right-of-Way Agreement must include due diligence requirements that require the grantee to complete construction of any permanent Improvements within the schedule specified in the Right-of-Way grant or general schedule of construction, and a process for changing the schedule by mutual consent of the parties. If construction does not occur, or is not expected to be completed within the time period specified in the grant, the grantee must provide the Tribe and BIA with an explanation of good cause as to the nature of any delay, the anticipated date of construction of facilities, and evidence of progress toward commencement of construction.

(2) Failure of the grantee to comply with the due diligence requirements of the grant is a violation of the grant and may lead to termination of the Right- of-Way Agreement.

(f) Compensation

(1) Subject to subparagraph (2), the Right-of-Way Agreement shall provide for annual payment of just compensation that is in the Public Interest, as determined by the Tribe, but not less than $ 0.25 per year, indexed annually for inflation, multiplied by the length (in feet) of the energy product line or other facility, multiplied by the diameter of the line or other facility.

(2) The Tribe may require or permit alternatives to monetary compensation that it deems in the Public Interest, including, but not limited to:

(A) in-kind consideration;

(B) payments based on throughput or percentage of income;

(C) payments at specific stages during the life of the Right-of-Way grant, such as fixed annual payments during construction, payments based on income during an operational period; or

(D) bonuses.

(3) Payments due under a Right-of-Way Agreement shall be made directly to the Tribe.

(g) Mandatory Provisions

(1) Each Right-of-Way Agreement must address:

(A) The permissible uses of the Right-of-Way;

(B) Whether the Right-of-Way may be assigned or mortgaged and the associated consent requirements;

(D) The duration of the Right-of-Way and the conditions, if any, for renewal.

(2) Every Right-of-Way Agreement shall include substantially the following provisions:

(A) The Tribe maintains its existing jurisdiction over the land, activities, and persons within the Right-of-Way and reserves the right to reasonable access to determine grantee's compliance with consent conditions or to protect public health and safety;

(3) The grantee has no right to any of the products or resources of the land, including but not limited to, timber, forage, mineral, and animal resources, unless otherwise provided for in the Right-of- Way Agreement;

(4) If historic properties, archeological resources, human remains, or other cultural items not previously reported are encountered during the course of any activity associated with the Right-of-Way Agreement, all activity in the immediate vicinity of the properties, resources, remains, or items will cease and the grantee will contact the Tribal Historic Preservation Office and the BIA to determine how to proceed and appropriate disposition;

(5) The grantee must:

(A) Construct and maintain Improvements within the Right-of- Way in a professional manner consistent with industry standards;

(B) Pay promptly all damages and compensation, in addition to bond or alternative form of security prescribed in the Right- of-Way Agreement, determined by the Tribe to be due as a result of the granting, construction, and maintenance of the Right-of-Way;

(C) Upon completion of construction, restore the land as nearly as possible to its original condition, to the extent compatible with the purpose for which the Right-of-Way was granted, or reclaim the land if agreed to by the Tribe;

(D) Clear and keep clear the land within the Right-of-Way, to the extent compatible with the purpose of the Right-of- Way, and dispose of all vegetative and other material cut, uprooted, or otherwise accumulated during the construction and maintenance of the project;

(E) Comply with all applicable laws and obtain all required permits;

(F) Not commit waste;

(G) Operate, repair and maintain Improvements consistent with the Right-of-Way grant;

(H) Build and maintain necessary and suitable crossings for all roads and trails that intersect the Improvements constructed, maintained, or operated under the Right-of- Way;

(I) Upon cancellation or termination of the right-or-way, restore the land to its original condition, to the maximum extent reasonably possible, or reclaim the land if agreed to by the Tribe;

(J) At all times keep the Tribe informed of the grantee's address;

(K) Refrain from interfering with the Tribe's use of the land, provided that the Tribe's use of the land is not inconsistent with the Right-of-Way;

(L) Comply with due diligence requirements imposed by the Right-of-Way Agreement;

(M) Notify the Tribe and the BIA if it files for bankruptcy or is placed in receivership;

(N) Hold the United States and the Tribe harmless from any loss, liability, or damages resulting from the applicant's use or occupation of the premises; and

(O) Indemnify the United States and the Tribe against all liabilities or costs relating to the use, handling, treatment, removal, storage, transportation, or disposal of hazardous materials, or release or discharge of any hazardous material from the premises that occurs during the term of the grant, regardless of fault, with the exception that the applicant is not required to indemnify the Tribe for liability or cost arising from the Tribe's negligence or willful misconduct.

(h) Assignments, Amendments and Mortgages

Unless otherwise specifically provided in the Right-of-Way Agreement, a Right- of-Way may be assigned, amended or mortgaged only with the approval of the Tribe.

(i) Right to impose taxes, fees and assessments

The Tribe reserves the right to impose fees, taxes or assessments in connection with an application for Right-of-Way Agreement or in connection with a grantee's use of a Right-of-Way pursuant to a Right-of-Way Agreement. The Tribe may also agree in a particular Right-of-Way Agreement to waive such taxes, fees and assessments.

(j) Initial Realty Officer Review

Within fifteen business days after receipt of a complete application, the Realty Officer shall

(1) Deliver a copy of the application packet to the Director for review pursuant to Section 4.07.050;

(2) Prepare a form of Right-of-Way Agreement; and

(3) Deliver a copy of the application packet to the Tribal Attorney for legal review.

(k) Legal Review

The Tribal Attorney shall review and make appropriate modifications to the Right-of-Way Agreement and provide the Realty Officer with a written report including the attorney's statement whether the Right-of-Way Agreement complies with this ordinance, including its Public Interest requirements, and any recommendations or concerns.

(l) Environmental Review

The Director shall assess the environment impact of a proposed Right-of-Way in accordance with the standards of Section 4.07.050. In the event that a proposed Right-of-Way is not categorically excluded, the Director shall:

(1) request any additional information needed from the applicant that may be needed to complete an environmental review, and;

(2) perform an environmental review, and

(3) report the results of his or her determination to the Realty Officer.

(m) Final Realty Officer Review

(1) After receipt of the final environmental review report prepared pursuant to Section 4.07.050D., the Realty Officer shall determine whether the applicant has satisfied all application requirements of this ordinance. If the Realty Officer identifies deficiencies in the application, the Realty Officer shall:

(A) so advise the applicant and provide a reasonable period of time for the applicant to cure the deficiencies, and;

(B) determine the extent of deficiencies and the necessary recourse action, which may require revisions to the environmental review, and/or;

(2) If the Realty Officer determines that the application meets the requirements of this ordinance, the Realty Officer shall submit the application packet, together with the environmental review report, to the Tribal Council for a final decision whether to approve or disapprove the Right-of-Way Agreement. The application packet submitted to the Tribal Council shall include:

(A) the proposed Right-of-Way Agreement document(s), together with the Realty Officer's recommendation, if any, whether to approve the Right-of-Way Agreement;

(B) the application submitted to the BIA pursuant to 25 C.F.R. § 169.102:

(D) the Director's environmental review statement, including the recommendations;

(E) any documents that the Tribal Council may specifically request; and

(F) any other relevant documents.

(n) Tribal Council Decision

(1) The Tribal Council shall have the sole authority to approve or disapprove the Right-of-Way Agreement application by resolution based on its judgment whether the benefits of the Right-of-Way Agreement outweigh any identified adverse impacts and whether the Right-of-Way is in the Public Interest.

(2) Triplicate originals of an approved Right-of-Way Agreement shall be executed by the Chairperson, on behalf of the Tribe, and by the applicant.

(o) Realty Officer's Post Execution Duties

Following the execution of an approved Right-of-Way Agreement by the Chairperson, the Realty Officer shall:

(1) provide an original Right-of-Way Agreement to the BIA for recording and return to the Tribe;

(2) provide an original or certified copy of the Right-of-Way Agreement to the applicant;

(3) preserve original and digital copies of executed Right-of-Way Agreement documents;

(4) if the BIA grants a Right-of-Way pursuant to the Tribe's Right-of-Way Agreement, obtain and record a copy of the approved Right-of-Way; and

(5) in coordination with tribal technical staff monitor the grantee's compliance with the Right-of-Way.