TERA Consultation wTribes on Burden Hours

TERA burdens for Tribes and issues with the regulations and statues 
Background: 
“In 2013, Congress, the Office of Management and Budget (OMB), and tribes expressed renewed 
interest in tribal energy resource agreement (TERA) legislation and regulation.  Congress noted that no 
tribe had yet obtained a TERA, and started considering legislative “fixes” to make the TERA application 
and approval process more streamlined.  OMB saw the same issue and used its role enforcing the 
Paperwork Reduction Act to ask whether there are regulatory adjustments that could reduce the burden 
on tribes otherwise interested in TERAs.  At the same time, two tribes decided to take a fresh look at the 
TERA process, to see whether it could be useful to them.” Please see Attachment 3 for greater detail. 
Also in 2013, IEED has “responded to several calls for ideas on how to simplify or otherwise amend the 
TERA process to make it more readily usable, and our thoughts on that topic remain under 
consideration.  We also attended the August 20‐21, 2013 Four Corners Tribal Summit in Ignacio, 
Colorado where we conducted a TERA brainstorming session to seek further views on whether and how 
the TERA process could be improved.  The Jicarilla Apache Nation, Navajo Nation, Northern Ute, 
Southern Ute, and Ute Mountain Ute tribes that attended the Summit offered their thoughts.” 
Furthermore, “In addition to the expertise of our Office, the Energy Act also allows IEED to periodically 
make available tribal energy capacity‐building (TEDC) grants to tribes wishing to build their capacity to 
develop tribal energy resources.  As of FY 2015 we have awarded TEDC 10 grants.” The details of this 
meeting are described in Attachment 2, and the details of the capacity grant are discussed in the 
“Actions Taken” section of this memorandum. 
The basic conclusion of the work done for this recommendation was “while thoughtful and thorough, 
few of the suggestions at this brainstorming session suggested a silver bullet to “fix” TERA legislation, 
regulations, or procedure, and there were no real “ah‐Ha!” moments.  One thought that merits further 
review, however, may be the second suggestion under Legislative Changes, above.  Perhaps an 
amendment to the IMDA or some other statute, currently used to get at subsurface mineral 
development, would be simpler than trying to revise and simplify the lengthy TERA legislation.” Please 
see Attachment 3 for more details. 
Actions Taken:  IEED officials considered multiple requests for reflection on improving the TERA process, 
with internal meetings, meetings with two tribes then interested in pursuing a TERA, and a 
brainstorming session at the Four Corners Tribal Energy Summit in August, 2013.  The general consensus 
was that regulatory and administrative procedures cannot be simplified to any great extent, because 
they largely track the detailed and complex TERA statute.  Rather than try to simplify the procedures 
required by statute, however, many discussion participants thought it would be quicker and cleaner to 
modify another, existing statute (such as the Indian Minerals Development Act) and insert provisions 
similar to those found in the HEARTH Act.  Doing so would allow tribes to adopt regulatory procedures 
similar to those followed by Federal officials, and implement them without extensive Department 
involvement.  This idea was recommended to the Department by a joint SOL/IEED proposal, which is still 
under consideration by the Department. 

The TEDC grant solicitation was revised to better enhance tribe’s ability to exercise tribal self‐
determination over oil and gas operations, this is in direct response to addressing capacity 
recommendations.  TEDC will provide tribes with funding to analyze training needs and capacity gaps for 
tribes on the policies and procedures for oil and gas leasing and plan to develop model policies and 
procedures that tribes could adopt to exercise authority over all or portions of oil and gas development. 
The grant solicitation for TEDC was issued and 10 grants were awarded in FY 2015.  See attached revised 
TEDC grant solicitation.  
See Attachments 

MEMO

To:

Karen Atkinson, Director, IEED

From:

David Johnson, Program Analyst

Re:

TERA Progress in 2013

Date:

December 3, 2013

In 2013, Congress, the Office of Management and Budget (OMB), and tribes expressed
renewed interest in tribal energy resource agreement (TERA) legislation and regulation.
Congress noted that no tribe had yet obtained a TERA, and started considering legislative “fixes”
to make the TERA application and approval process more streamlined. OMB saw the same issue
and used its role enforcing the Paperwork Reduction Act to ask whether there are regulatory
adjustments that could reduce the burden on tribes otherwise interested in TERAs. At the same
time, two tribes decided to take a fresh look at the TERA process, to see whether it could be
useful to them. This memo summarizes what has resulted from this recent interest.
Legislation.
Concerning Congress, we believe efforts to streamline the TERA process to date have
been misguided. Congress’ approach thus far has been to shorten the time the Interior Secretary
has to determine whether a tribe has the capacity to perform energy development functions
identified in its TERA application, and to create something of a standard for the determination of
tribal capacity. Shortening deadlines would be unlikely to help, and may in fact make matters
worse. There is no indication Secretarial delay or inaction is the problem. Rather, the problem
seems to be that the law is too complex, has no associated funding, contains ambiguous
environmental standards likely to induce litigation regardless of approach, and contains certain
standards that appear poorly matched with the notion of tribal sovereignty (such as a high level
of public scrutiny required for projects). As for tribal capacity determinations, some guidance
might be useful if done correctly, but so far the standards suggested do not appear quite ready.
Rather than try to respond to this suggested legislation, we took advantage of a request
for legislative drafting services and proposed alternative legislation: a modification of the Indian
Minerals Development Act (IMDA) adopting an approach similar to that used in the HEARTH
Act. This approach would let tribes enter into IMDA agreements without Secretarial approval,
merely by adopting regulations similar to those that bind DOI. This way, tribes could quickly
and easily pursue the vast majority of their energy projects without following the daunting
procedures associated with TERAs, and without DOI having to reach a determination of tribal
capacity at all. But it is not clear whether this approach has been endorsed by senior DOI
officials, so we may yet have to attempt to significantly modify what we see as unfortunate
Congressional efforts.

INTERNAL DELIBERATIONS

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Regulation/Administration.
OMB’s interest does not afford us much room to make a helpful response. Most of the
regulatory and administrative features of TERAs involve only slight embellishment of statutory
requirements. Thus, to cut down on paperwork or administrative work, we could not simply
modify or waive regulations at 25 CFR Part 224. The underlying statute would have to be
changed. Nonetheless, we anticipate needing to conduct a thorough review of our regulations
and procedures soon, to search for anything we may have overlooked.
Tribal Interest.
Two tribes have expressed interest in TERAs during 2013: the Moapa Band of Paiutes
(which currently hosts the only two commercial scale solar projects on any Indian reservation)
and the Southern Ute Indian Tribe (which suggested the TERA legislation in the first place).
We conducted a pre-TERA application consultation with Moapa on September 10-11,
2013. Moapa is interested primarily in developing more solar energy. Our meeting was very
informative, but inconclusive. It appears the tribe is internally divided over what further tribal
energy projects it would like to pursue, if any. We are therefore unable to proceed with TERA
activities involving Moapa until that tribe makes some internal decisions.
We also conducted pre-TERA application consultation meetings with Southern Ute on
August 22 and again on November 21-22, 2013. Southern Ute is interested primarily in taking
over greater control of its oil and gas development activities. The tribe has made it plain that it is
not yet committed to submitting a TERA application, but it has nonetheless devoted a great deal
of attention to these meetings, with good representation from tribal council members, legal staff,
administrative personnel, environmental staff, etc. The level of exploration and detail at these
meetings – from what process (638, TERA, HEARTH Act, etc.) would make the most sense for
the assumption of certain functions, to the precise limits of “inherently Federal functions” that
the tribe may not be able to assume under any circumstance – is helping both the tribe determine
its level of interest in pursuing a TERA under existing law, and how IEED would broker a TERA
among DOI bureaus in the context of oil and gas. Thus, even if Southern Ute eventually decided
not to apply for a TERA, the nature of its conversations with IEED have been enormously
helpful in distilling concepts for future TERA discussions, whether about modifying current law,
or preparing an application under existing law.

INTERNAL DELIBERATIONS

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Tribal Energy Resource Agreements (TERAs) and Capacity Building
The Energy Act of 2005 introduced a procedure to allow tribes to develop energy resources on
tribal trust land without Secretarial approval, pursuant to a tribal energy resource agreement
(TERA). Like other important Indian initiatives with significant potential, however, the TERA
concept has been slow to catch on. One reason is that a tribe must have the demonstrated
capacity to develop the energy resource(s) identified in the TERA, and few tribes have had the
opportunity to establish the expertise and internal structure needed to meet this requirement.
Anticipating this problem, the Energy Act also provides IEED with some tools to help interested
tribes build their energy development capacity.
Since TERAs offer the opportunity not only to spur the development of domestic conventional
and renewable energy resources, consistent with the Administrations “all of the above” energy
strategy, but also an opportunity to vastly improve the economies of Indian nations with tribal
energy resources, the Office of Management and Budget, Congress and the tribal community all
have taken a renewed interest in the TERA concept. This year we have responded to several
calls for ideas on how to simplify or otherwise amend the TERA process to make it more readily
usable, and our thoughts on that topic remain under consideration. We also attended the August
20-21, 2013 Four Corners Tribal Summit in Ignacio, Colorado where we conducted a TERA
brainstorming session to seek further views on whether and how the TERA process could be
improved. The Jicarilla Apache Nation, Navajo Nation, Northern Ute, Southern Ute, and Ute
Mountain Ute tribes that attended the Summit offered their thoughts, which we also passed along
to those interested in reviewing TERA legislation and regulatory procedures.
Meanwhile, both the Southern Ute Indian Tribe and the Moapa Band of Paiutes requested preapplication TERA consultation meetings in accordance with 25 CFR §224.51 this year. We
conducted these consultations on August 22 and September 10-11, 2013 respectively. Southern
Ute, a well-known leader among tribes engaged in conventional energy development, has already
requested a follow-up meeting to further explore the parameters of a TERA application. Moapa,
the only tribe in the nation to have begun development of commercial-scale solar energy
projects, has indicated that it too will be interested in further TERA discussions once it has more
closely considered its next solar project.
In addition to the expertise of our Office, the Energy Act also allows IEED to periodically make
available tribal energy capacity-building (TEDC) grants to tribes wishing to build their capacity
to develop tribal energy resources. We have prepared a fresh grant solicitation for this purpose,
and are awaiting its publication in the Federal Register.

MEMO

To:

Karen Atkinson, Director, IEED

From:

David Johnson, Program Analyst

Re:

TERA Brainstorming Session, Four Corners Tribal Energy Summit,
Ignacio, Colorado, August 20-21, 2013

Date:

December 3, 2013

On August 20-21, 2013, the Southern Ute Tribe hosted what it billed as the first annual
energy summit for area energy tribes of the San Juan Basin: itself, the Navajo Nation, the
Northern Ute Tribe, the Jicarilla Apache Nation, and the Ute Mountain Ute Tribe. The goal was
to discuss and share information and experiences concerning the development of tribal oil and
gas resources, to see where the tribes could initiate changes that might improve Federal
permitting procedures and other perceived areas of concern. The Summit was intended to help
the tribes get prepared for what they believe will be a new boom in oil and gas development in
the Mancos Shale deposits of the San Juan Basin, made recoverable by technological advances
like horizontal drilling and hydraulic fracturing.
The Summit was attended by roughly 70 attendees, consisting of tribal leaders, tribal
technology experts, attorneys, Federal officials from Interior’s Office of Indian Energy and
Economic Development and the Bureau of Land Management, and the Chief of Staff for the U.S.
House of Representatives Subcommittee on Natural Resources.
Summit presentations and discussion began with a description of the energy development
history of the Southern Ute Tribe. Participants then heard a detailed presentation concerning the
potential of the San Juan Basin in general, and the Mancos Shale in particular. The subject of
hydraulic fracturing came next, followed by presentations by each of the tribes concerning their
past, present, and anticipated energy development activities.
Our office was already planning to be in town to conduct a tribal energy resource
agreement (TERA) pre-application consultation pursuant to 25 U.S.C. §3503(c) and 25 CFR
§224.51, so we agreed to attend the Summit and make a presentation concerning TERAs.
TERAs were created in the 2005 Energy Act, and were designed to allow tribes which
demonstrate the capacity to handle their own energy development activities (i.e., negotiating and
approving leases, business agreements, and rights-of-way) the ability to do so without seeking
approval in each case from the Secretary of the Interior. No tribe has applied for a TERA yet,
however, and the Administration and Congress are both wondering why. Our presentation on
TERAs was designed to encourage participants to discuss what the main reasons might be that
no TERAs have yet been sought, and how legislative or administrative adjustments might
encourage their future use.

INTERNAL DELIBERATIONS

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What came up in conversation was as follows:
Legislative Changes –
1. Restrict the environmental review process tribes must follow. The tribes believe that many
laws applicable to Federal lands ought not to apply to Indian lands, which they insist are not
Federal lands. The tribes point out that, if they had true sovereignty, they should be able to
decide for themselves what environmental analysis and precautions to conduct with respect to
energy development. After all, they observe, it isn’t as though they can be careless with their
land base – the tribes aren’t going anywhere.
2. Instead of addressing TERA legislation, consider modifying other laws that may be easier to
adapt to a HEARTH Act-like process. Participants observed that TERA legislation may be too
long and detailed to simplify without a huge effort at re-drafting. Other laws that involve leasing
and/or mineral extraction might be comparatively simple to amend, adopting an approach like
that used in the HEARTH Act, e.g., allowing a tribe that adopts certain acceptable laws and
practices to take over the functions those laws cover (without necessarily having the tribe prove
in advance it has the “capacity” to follow or enforce its laws).
3. Provide funding as an incentive for a tribe to take over functions the Federal government
would otherwise perform for free. Several participants noted that, unlike self-determination
compacting or contracting, if a tribe takes over energy development functions that would
otherwise have been performed by the Secretary, with a TERA the tribe does not get any portion
of the funding the Secretary saves by no longer having to perform that function.
4. Reduce the public scrutiny associated with TERAs. Concerning the environmental review
process, make it clear that persons who are not tribal members or immediate neighbors of the
tribe have no right to comment on or challenge a proposal. (In judicial terms, this could be
considered a standing issue.) Also, tribes are concerned that in general their projects are subject
to more scrutiny when compared with States. Tribes made it abundantly clear that they do not
want matters that should be driven by the internal deliberations of a sovereign political body to
be complicated by persons or outside entities with no direct stake in the matter.
5. Streamline the capacity determination process. The concept of determining a tribe’s
“capacity” is peculiar to TERAs, and has never been fully fleshed out. That may be due in part
to the broad number of possible energy development activities a tribe could potentially pursue
under a TERA – from geothermal, to wind, to oil & gas, to solar, to biofuels. It seems likely that
one could more readily determine what would qualify as tribal capacity once the scope of
endeavor is better defined. But Congress could also change the TERA legislation to narrow the
scope of what the Secretary uses to consider “capacity.”
6. Clarify the meaning of "inherent Federal functions" so that tribes can anticipate which
activities they can assume in a TERA. To the extent that some aspect of developing a tribe’s
energy resources must be conducted by Federal officials in order to preserve an essential aspect
of Federal duty, tribes would like to have that function defined in advance, so they don’t waste
time and effort developing an energy development plan for a TERA that cannot be approved.
7. Improve the right-of-way appraisal process (this actually isn't a TERA issue, but points out a
frustration that would impede even a tribe that secured a TERA).

INTERNAL DELIBERATIONS

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Administrative Changes –
1. Provide tribes with access to teams of Interior experts from different disciplines, when needed
to cut through tough issues, administrative delays, and questionable decisions by line
officials. (This is a resurrection of the One Stop Shop concept of assembling talent in one
location to collaborate and quickly move project approvals. It isn't a TERA issue.)
2. Review earlier comments on TERAs made to OIEED by a tribal advisory committee, back
when the regulations were being formulated. (These comments were of course considered at the
time the current regulations were finalized by the Department. Studying them might offer some
historical context, but absent new information suggesting they were not properly considered the
first time, it may be that this exercise will not suggest significantly helpful administrative
adjustments we can adopt today.)
3. Create a model TERA agreement. (Due to the potential breadth of activity a tribe can use a
TERA to undertake, it may be more plausible to create several model TERA agreements, one for
wind, one for oil and gas, etc.)
4. Improve the appraisal process. (This isn't a TERA issue.)
Conclusion.
While thoughtful and thorough, few of the suggestions at this brainstorming session suggested a
silver bullet to “fix” TERA legislation, regulations, or procedure, and there were no real “ahHa!” moments. One thought that merits further review, however, may be the second suggestion
under Legislative Changes, above. Perhaps an amendment to the IMDA or some other statute,
currently used to get at subsurface mineral development, would be simpler than trying to revise
and simplify the lengthy TERA legislation.

INTERNAL DELIBERATIONS

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