WASHINGTON – A final report on tribal energy rights of way will be delayed until after its scheduled date for submission to Congress of Sept. 29. A Department of Interior Indian Affairs spokesman, Nedra Darling, confirmed the word that circulated on Capitol Hill the week of Sept. 25, as Congress made every effort to recess Sept. 29 for the campaign trail. Congress will return to Washington for a so-called “lame duck session” following the Nov. 7 elections.
Darling said the delay reflects a commitment to producing the best report possible, based in part on the heavy volume of comments received from tribes in response to a preliminary draft report. “We decided to take a little bit more time to complete the report, with those comments hopefully included.” They are accessible on the Internet at http://1813.anl.gov.
The departments of Energy and the Interior, charged with generating the “Section 1813” study under the Energy Policy Act of 2005, released the preliminary draft of the report in August. Findings of the early draft offered no basis for the assertions of industry giant El Paso Natural Gas, based primarily on its stymied negotiations with the Navajo Nation, that negotiating energy rights of way with tribes generally poses a threat to national energy security and spurs higher costs to consumers. But tribes have continued to express concern that the report could be used by energy industry special interests to overturn current law that calls for tribal consent to energy rights of way authorizations on tribal land.
The concern is well-founded, according to Paul Moorhead, a lobbyist on the issue. “Some people think that because the draft report looks like it’s going to put us in a good stead, that we can take a victory lap. And we’re telling them, ‘This hasn’t even started yet. So get off the bench, dust off those pads, and get ready.’”
Moorehead and Virginia “Ginny” Boylan, a colleague of his at the firm of Gardner Carton & Douglas and, like him, a veteran of tribal energy issues, discussed the report and some of the concerns that surround it in a recent interview.
“We understand that it’s a long way away from the draft of the final report being submitted,” Moorehead said. “They pushed it back to, we hear, November. And perhaps as late as late November.”
“Way after the election, and probably after the lame duck,” Boylan added.
“That’s conceivable,” Moorehead said. “I mean they didn’t put this in the Federal Register or anything. This [late submission date] is just scuttlebutt. This is what the chatter says.”
“It may be to our benefit not to have it there for everybody to take potshots at, whether it’s us or the other side,” Boylan said. “This way we can get our ducks in a row if it’s anti-Indian, or if it doesn’t bode well for us.”
“Or if they really veer from the draft report.”
“Exactly. … So we’d have time between the [final] report and the next session of Congress … likewise the other side. If it doesn’t favor them, they’ll have their time to gear up.”
“One of the messages that we tried to deliver to the Hill … is [that] we’re not running,” Moorehead said. “The draft report is pretty decent; we like the findings, we’re not running from it. We want them to have hearings. … Let’s have a joint hearing, Energy and Indian Affairs committees, right? We prefer that over … a two-line provision jammed into the Omnibus [multi-department budget] bill. … Now they wouldn’t be warranted by the facts, or the law, or by probably most people in Congress that we’ve talked to who are sympathetic to us. But let’s not be naive. That doesn’t mean they’re not going to try it, and it also doesn’t mean they’re not going to be successful.”
“They could very well be successful,” Boylan said, explaining that a late amendment or “rider” could be attached to some bill that “has to go to the president” – in other words, a bill so important that it simply has to pass both houses of Congress, without regard for anti-Indian amendments that might sink less nationally significant bills. “And that’s usually the C.R. [Continuing Resolution on the budget, authorizing federal spending in the absence of a finalized federal budget] or the omnibus, or there’s going to be ‘mini-buses’ they call them going around, too. But the must-do bills.”
Moorehead said that several times in recent weeks, he’s had occasion to remind tribes of previous instances where the conduct of one tribe has called down the wrath of key congressional members on all tribes. The Navajo-El Paso impasse is a parochial matter that should not have commandeered the expensive attention of some 70 single tribes, on top of tribal coalitions such as the Council of Energy Resource Tribes and the National Congress of American Indians. Tribes in past instances have publicly supported the one tribe in public, but also sent a message behind the scenes: “When that rain falls, it’s going to be a hard rain, and it’s falling on everybody, brother. You better resolve this issue.”
“That’s kind of what we’re telling – what Navajo, the message to Navajo is on the rights of way,” Boylan said. “Similar, but not as pointed, because we think Navajo is totally right. … The company is one of those companies that – it has a reputation in the industry for being totally unprogressive and unreasonable.”
