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Developing Energy Projects on Federal Lands: Tribal Rights, Roles, Consultation, and Other Interests (A Developer's Perspective)

Walter Stern, Energy Development: Access, Siting, Permitting, and Delivery on Public Lands

Native American tribes, Pueblos and other groups (collectively referred to as “tribes”) are important stakeholders in any energy development project located near Indian reservations, Indian lands, and in or near aboriginal lands which were occupied by Native Americans prior to the treaty-making era.2 This paper will examine the roles that tribes may play in the development of energy projects on federal public lands. This paper will consider: (a) consultation with tribes, tribal groups, and tribal members under the National Environmental Policy Act (“NEPA”),3 the National Historic Preservation Act (“NHPA”) and its all important Section 106 process,4 the Native Graves Protection and Repatriation Act (“NAGPRA”)5 and related statutory schemes; (b) Environmental Justice; (c) sacred sites and religious freedom considerations; and (d) some practical recommendations for working with tribes, including the benefits of early coordination with tribal stakeholders, including tribal governments and tribal non-governmental organizations. This paper does not consider any state law-based consultation obligations. Please consider that state agencies that may be involved in permitting projects on federal lands may also have requirements concerning consultation with tribes or other tribal and Native American interests. As noted, the matters discussed in Paul E. Frye's, my co-presenter, article are