On November 28, the Department of the Interior issued a proposed leasing rule, 25 C.F.R. § 162. According to the DOI, the rule will “remove referral roadblocks to economic development[,] restore greater control to tribal governments[,]streamline the approval process for home ownership, expedite economic development[,] and spur renewable energy development in Indian Country.” Although not as comprehensive as it could be, the proposed regulation change is a significant step in the right direction.
The proposed regulations will streamline the leasing process by imposing timelines on the Department for reviewing leases: up to 30 days for residential leases, and up to 60 days for business leases and wind and solar energy leases.
The proposed regulations will also distinguish between residential, business, and wind and solar energy leases, and establish separate processes for review, as well as permitting the automatic approval of subleases and amendments to existing leases.
Further, the proposed regulations eliminate the requirement for Department approval of “permits” for activities on Indian lands, and defer to the judgment of tribes and individual Indians on land use and rental rates.
The proposed regulations will also establish a new, streamlined process for the development of wind and solar energy projects on Indian lands, by distinguishing between leases based on whether they are for residential, business, or wind and solar energy development.
The proposed rule will not apply to subsurface lands or agricultural leases, nor will it modify the agency’s obligation to comply with federal environmental laws and policies. However, because the proposed regulations require federal approval in fewer instances – the “federal action” triggering the application of federal environmental laws – it is likely that a significant environmental-regulatory burden will be lifted.
The Department of the Interior has drafted a comparison chart of existing and proposed regulations, available here.
Ryan Dreveskracht is an Associate at Galanda Broadman PLLC. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or firstname.lastname@example.org.