Do you want to get married, or just shack up?
This article is the second in a series of issues concerning rights-of-ways across Indian lands. This issue is probably the most difficult regarding negotiating rights-of-way over land in Indian Country. Today I will address key components to consider when consenting to a rights-of-way. You must treat a right-of-way negotiation as if you are negotiating a marriage. Why do you think folks make up marriage vows to recite at weddings and or execute pre-nuptial agreements. A wife is supposed to be for life, but stuff happens sometimes. Things can change a whole lot after the courtship and honeymoon! When you enter into a right-of-way, you going to be married to it for a long time so you better get what you are looking for.
Rights-of-Way are fairly simple processes, but you have to remember that whatever you consent to may last throughout your lifetime and the lifetime of those who inherit your land. You can identify the basic components in a right-of-way and you will understand each component is negotiable and require your involvement to be successful.
Generally, a right-of-way applicant will approach a landowner to lay the groundwork for obtaining an easement on your property. This is what I call the courtship. They show their best, dress their best, and act their best to win you over. They will provide a notice of intent by either letter, or meeting with the landowner(s) identifying the project and purpose. You will be asked to consent to a permit to survey and the survey application is submitted to the Bureau of Indian Affairs (“BIA”) for approval. The survey determines where the exact placement of the easement will occur and it’s at this time that an adjustment is made by the applicant if there needs to be changes in the path, or footprint as we call it. Situations such as placement, natural obstacles, pipelines, utilities, etc., may require an adjustment to avoid interfering with those existing facilities. Monetary damages are usually paid to the surface lessee rather than the owner because there isn’t any damage or disturbance to the land other than driving across grassland or farmland paid for use by the lessee.
Once the survey is completed and the footprint established, an appraisal and environmental review is initiated. Upon completion of the appraisal, the landowner is notified of the fair market value (“FMV”) for the taking of land for use in the right-of-way. Depending on your interest in the land, you will be provided a consent form to sign identifying the legal description, purpose, and compensation being offered by the applicant. Remember that the FMV isn’t the ending value, but a point of reference for beginning negotiation. The BIA is required to ensure that a grant of right-of-way will not be for less than FMV, but any amount negotiated higher than the FMV is acceptable.
At this point, you need to have considered how the right-of-way will impact the land not only presently but in the future. For example, if the land is 160 acres of farmland valued at $20 per acre, and the easement would remove 10 acres of land from the farm lease, you lose $200 per year in income not including inflation or increased value. If the right-of-way payment is $1,000 total compensation for a pipeline, the life expectancy is at least 20 years meaning the loss of income is $4,000 but you only received a $1,000 one time payment and therefore you lose $3,000 in income for the duration of the right-of-way. Negotiate a payment every five years during the term of the right-of-way of $1,000 or more to ensure adequate compensation and current FMV is captured.
Also, you can negotiate maintenance such as ensuring that the road to their equipment and lines is maintained properly and the surface is not damaged without repair. There is nothing worse than washboard roads on a nice car. Require that the footprint area is maintained, grass cut, trimmed, and if you cut hay from the barrow ditch areas, retain access to do so. If there isn’t a cattle guard and it’s grazing land, require an upgraded approach and cattle guard be installed. And finally, require that storage of equipment and or materials does not occur at any time without consent and or compensation paid to the landowner.
Upon completion of negotiation, require on the consent form you sign that the final grant of right-of-way is provided to you and is not granted by the BIA without your initials on the final grant. This ensures that the grant of right-of-way does not contain any surprises because you are not a signatory party to the final grant. The BIA is the only signatory on the final grant and then it’s final unless they fail to follow what it is required on the consent form. Although landowners may have consented previously to a right-of-way, consent may be withdrawn anytime prior to the granting by the BIA. In Nellie Moccasin v. Acting Billings Area Director, Bureau of Indian Affairs 19 IBIA 184 (02/05/1991), the Interior Board of Indian Appeals, the Board held that appellant was entitled to withdraw her consent at any time prior to the time the Superintendent signed the right-of-way document.
And finally, as a landowner, it will be your primary responsibility to ensure that the terms and conditions of the right-of-way are enforced. BIA sadly and due to inadequate funding levels for staffing is usually unable to monitor compliance on a regular basis. BIA is responsible, but they lack eyes and ears in the field on a regular basis and non-compliance can occur and continue unless reported.
You need to know your rights. A right-of-way is like a marriage, it can last for a lifetime. It can be a good thing, or it can be a pain in your neck.
Jay Daniels has 30 years of experience working in Indian Country, managing trust lands and is a member of the Cherokee Nation of Oklahoma. You can find resources and information at http://roundhousetalk.com/
LINK: Read all 4 parts of the Rights-of-Way Series