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Tribal Consultation: How Project Proponents Can Reduce Risk

November 13, 2019

By Troy A. Eid, Guest Writer
Greenberg Traurig, LLP

This article was originally published in Currents, POWER’s quarterly Environmental newsletter.

“Tribal consultation” refers to the federal government’s legal obligation to consult with Native American tribes on energy and infrastructure projects. Whenever a project requires federal approval—a water-crossing permit from the U.S. Army Corps of Engineers, for instance, or a certificate from the Federal Energy Regulatory Commission to build a natural gas pipeline—the tribal consultation requirement kicks in.

Projects need not be on tribal land for the tribal consultation requirement to apply. On the contrary, the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA), along with many other federal laws, mandate that the lead agency on each project must consult with affected Indian tribes regardless of whether the project is on public or private land.

Energy and mining companies, utilities, highway authorities and other project proponents are frequently caught off guard by the tribal consultation requirement, particularly in parts of the country located far from Indian reservations. Yet locating reservation boundaries is only a first step. Proponents must also be aware of each tribes’ original homelands or “aboriginal territory.” NEPA and NHPA respect that tribes, which have existed since time immemorial, retain ongoing cultural connections to these lands.

When Is Consultation “Meaningful”?

A federal agency’s consultation with tribes must be “meaningful” to be legally effective. During the Obama Administration, federal agencies developed individualized tribal consultation policies, which have largely continued during the Trump Administration. These policies have been increasingly tested in court.

The U.S. District Court in Wyoming granted a preliminary injunction against the Bureau of Land Management (BLM) in 2015 to stop, on a nationwide basis, enforcing its final rule related to hydraulic fracturing or “fracking” on federal and Indian lands. In the case, Wyoming v. Jewell, the BLM insisted it had engaged in extensive tribal consultations with the Ute Indian Tribe of Uintah and Ouray Reservation by holding meetings, offering to meet individually with tribal representatives and distributing copies of the draft rule for comment. The court disagreed, characterizing BLM’s meetings as “more intended as informational and outreach sessions,” as opposed to consultations where tribal representatives’ expressed concerns were addressed.

These and other cases show that the standard for what constitutes meaningful consultation is still a work in progress. Yet what is clear is that project proponents can and should support the official consultation process to maximize opportunities for mutual collaboration and to mitigate potential project risk. Here are some practical steps.

  1. Confer with tribes before projects are finalized. Proponents should reach out to tribes as early as possible in the planning process, using non-disclosure agreements as needed. Some federal agencies maintain lists or registries of tribes with cultural affiliation to specific geographical areas, as do many consulting companies.
  2. Retain experienced legal counsel. It helps to retain legal counsel who are experts in tribal law and federal Indian law at the inception of the project. Because tribes are sovereign, they are accustomed to doing business with and through attorneys just as federal and state governments do. Lawyers are invaluable in helping federal agencies create a comprehensive administrative record attesting that the tribal consultation process is conducted in a meaningful fashion.
  3. Provide resources to tribes to support consultation. Tribal governments are sometimes underfunded and understaffed, which means their ability to participate in tribal consultation is limited by other competing considerations. It is not unusual for project proponents to provide reasonable financial resources to tribes, when requested by tribes to do so. For example, a proponent might arrange for tribes to commission their own ethnographic studies of the project area. Helping tribes obtain more complete information about a project makes for a more informed government-to-government consultation. Tribes may also request proponents to support tribal monitors throughout the cultural resource survey process, as well as during project construction and mitigation.
  4. Explore creative project mitigation. It is not usual for tribes to voluntarily enter into confidential mitigation agreements with project proponents when cultural resources may be adversely affected. Agreements like this can provide flexibility for tribes and companies alike, all within the existing federal statutory framework. Examples of mitigation include educational, scholarship, and Native language and cultural preservation programs. The point is to think creatively and listen closely to tribes and their concerns.

About the Author:

Troy co-chairs the American Indian Law Practice Group of Greenberg Traurig, LLP and counsels companies on cultural resource compliance matters. He received the 2020 Lawyer of the Year Award for Native American Law from BEST LAWYERS IN AMERICA.