A legal update from our colleagues Michael O’Connell and Stephen Kelly:
The Bureau of Indian Affairs (BIA) on November 29, 2011 published proposed regulations for leasing tribal and individual Indian trust land for business and residential uses. The comment period runs through January 30, 2012. It will take the BIA some time to review and respond to comments before issuing final regulations. The Federal Register notice for the proposed new regulations runs 44 pages. See 76 Fed. Reg. 73,784 (Nov. 29, 2011).
The BIA’s proposed regulations apply to surface leases of trust land. Subsurface leases and mineral development agreements are governed by different regulations and statutes, as are rights-of-way and contracts or agreements that encumber tribal land.
Revised Subpart D of the proposed regulations covers leases for biomass, waste-to-energy, and other commercial and business uses. Subpart E establishes procedures for Wind and Solar Resource Leases and short-term (three years, with an option for one renewal term of three years) Wind Energy Evaluation Leases (WEELs) for purposes of installing instrumentation and related infrastructure, such as met towers, to evaluate wind resources for electricity generation. No similar provision is included for solar energy evaluation leases on the theory that physical possession of land is not required to evaluate a solar resource. WEELs take the place of short-term BIA permits that were included in an earlier version of the draft regulations.