Rights of Way

This class is a comprehensive overview of two of Falmouth Institute’s most popular classes, Rights of Way I: Rights of Way Over Indian Land and Rights of Way II: Negotiating and Renegotiating Rights of Way Over Indian Land. Over the course of three days, we’ll cover the relationships of tribal, state, and federal governments, the federal process of taking land into trust, as well as a historic overview of how current protections for Indian land originated.

This class offers a complete view of current federal policies regarding Indian land. We’ll review the laws that govern their creation, including condemnation, as well as discuss remedies for addressing trespassing issues. Rights of way are one of the most important, but often least understood, facets of managing and protecting tribal real estate. The class offers essential negotiation methods that apply to rights of ways, utilizing hands-on examples to help tribal negotiators seek the best deals.

T O P I C S   I N C L U D E
Fundamentals of Rights of Way
  • Legal terms
  • Background
  • Federal Statute protections
Rights of Way — An Overview
  • Terminology
  • Traditional rights of way
  • Historical legal requirements under the Federal Statutes
  • Current applicability of statutes from the 1800s
  • Current applicability of statutes from the early 1900s
  • Comprehensive statutes from 1948:
    • Federal regulations — 25 CFR, Part 169
    • BIA policies
  • How treaty rights apply
Existing or Proposed Realignment of Rights of Way
  • Assessing status
  • General rules of real property law that apply or do not apply
  • Condemnation for rights of way
  • Trespass implications
  • Effects of recent Supreme Court decisions
  • Case studies
  • Examining case studies and applying strategies
Tribal Assumption of Rights of Way
  • Balancing considerations for possible tribal assumption of rights of way
  • Assessing existing and future infrastructure costs necessary to assume control
  • Evaluating service history and future needs
  • Regulatory solutions as an alternative
Rights of Way Over Reservation Lands
  • Statues:
    • 25 USC, Sec. 312 and Sec. 319 (e.g., railway, telegraph and telephone lines)
    • 25 USC, Sec. 323-28 (e.g., all purposes, consent, compensation, rules and regulations)
    • 43 USC, Sec. 961 (e.g., power and communications facilities)
  • Regulations:
    • 25 CFR, Part 169 (rights of way over Indian lands)
    • Treaty rights
Condemnation for Rights of Way
  • When is condemnation used?
  • Condemnation process
  • Condemnation of Indian lands:
    • State authority
    • Federal authority
    • Tribal authority
BIA's 2015 Final Rule on Rights of Way on Indian Land (25 CRF 169)
  • Comparison of old and new regulations
  • Important changes you should be aware of
  • Litigation over the 2015 changes
The Current Federal Rights of Way Application Process
  • Bureau of Indian Affairs' Rights of Way Handbook
  • Bureau of Indian Affairs' Sample Forms
  • Utilizing the Trust Assets & Accounting Management System (TAAMS) to provide ease in managing rights of way
  • Bonding requirements and use
Determining Proper Compensation
  • Appraisal fundamentals
  • Leveraging costs of alternative routes
  • Case studies
Setting Terms
  • Duration considerations
  • Scope of use considerations
  • Rights of way vs. lease:
    • Difference between rights of way and lease
    • Regular consideration/rent adjustment
  • Asserting regulatory, taxation-monitoring control
Regulatory Concerns
  • National Environmental Policy Act (NEPA) and other environmental regulations
  • National Historic Preservation Act (NHPA) compliance
  • Tribal Historic Preservation Office (THPO) compliance
  • Tribal regulations
  • Graves and cultural resources protection
Negotiation Process
  • Choosing and empowering negotiators
  • Setting parameters and timetables
  • Assessing and maximizing bargaining positions
  • Preparing for successful negotiations
  • Seizing and maintaining control of negotiations
  • Renegotiation
  • Closing the deal
The Future of Rights of Way
  • Power lines
  • Telecommunications
  • Roadways
  • Other

*Topics subject to change.

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