Interpretation Restrictions must legally mandate a decrease in the quantity produced – regulations are distinct

Redefining the IMDA spurs renewable power development by circumventing TERAs

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Redefining the IMDA spurs renewable power development by circumventing TERAs

Judith V. Royster 12, Co-Director – Native American Law Center @ University of Tulsa, “Tribal Energy Development: Renewables and the Problem of the Current Statutory Structures,” March, 31 Stan. Envtl. L.J. 91

The heart of my proposal is a small and likely uncontroversial amendment to the Indian Mineral Development Act of 1982. The statutory definition of "mineral resources" should be amended to clarify that mineral resources includes all renewable energy resources. Although that is arguably the case now, the clear inclusion of renewable energy resources would remove a point of contention and confusion. At present, the IMDA defines "mineral resources" as "oil, gas, uranium, coal, geothermal, or other energy or nonenergy mineral resources." n179 Congress should amend the definition to something like, "oil, gas, uranium, coal, other energy and nonenergy mineral resources, or any renewable energy resources including, but not [*129] limited to, wind, solar, geothermal, biomass, and hydrologic resources." n180 Language such as this leaves no question that renewable energy resources are included in the scope of the IMDA. Alternatively, the definition could be amended in the regulations without amending the statute itself. The regulatory definition of minerals for purposes of leases and minerals agreements expands on the statutory definition: "both metalliferous and non-metalliferous minerals; all hydrocarbons, including oil and gas, coal and lignite of all ranks; geothermal resources; and includes but is not limited to, sand, gravel, pumice, cinders, granite, building stone, limestone, clay, silt, or any other energy or non-energy mineral." n181 This definition helps to clarify the meaning of "other" minerals in the statute by specifying such minerals as sand and gravel. The regulatory definition could similarly help clarify the meaning of "other energy" in the statute by specifying that it includes "both renewable and nonrenewable energy sources, including, but not limited to, wind, solar, geothermal, biomass, and hydrologic resources." n182 A statutory amendment would be preferable to a regulatory amendment, but a regulatory amendment could likely be accomplished more quickly. n183 Expanding the minerals definition of the IMDA to specify energy resources regardless of their classification would broaden, simplify, and normalize Indian tribes' ability to engage in renewable energy development. Any tribe with renewable resources could enter into any type of development agreement that suited its needs. Tribes could employ not only the current structure of leases, but joint ventures, partnerships, and business agreements of all kinds. This simple amendment would thus authorize all Indian tribes to move into more active roles in the [*130] development of their renewables. Tribes seeking to partner with non-Indian companies to develop wind farms, solar collectors, or biomass feedstock operations would no longer be confined to the passive role of lessor. And it makes common sense. There is no reason to deny a tribe with wind resources the ability to enter into a joint venture, for example, when a tribe with coal resources may do so. Clarifying that the IMDA may be used for renewables development could, however, impact the tribes' ability to use § 81 easements for wind and solar power development. Under current § 81 regulations, contracts and agreements that encumber Indian lands do not need secretarial approval if they are subject to approval under another statute or regulation, specifically including surface leases, agricultural leases, timber contracts, mineral leases, and minerals agreements. n184 The regulations thus appear to put those types of leases and agreements, including IMDA leases and agreements, outside § 81. If the IMDA definition of minerals is amended to specifically include renewable energy resources, then it may mean that a tribe could no longer use § 81 for renewable energy easements. To prevent this possible unintended consequence, a further amendment to the IMDA may be necessary. The IMDA now provides that nothing in the statute "shall affect" the Indian Mineral Leasing Act "or any other law authorizing the development or disposition of the mineral resources of an Indian or Indian tribe." n185 An amendment to clarify that it also does not affect tribes' authority to enter into § 81 easements would preserve that option for renewable energy development. This amendment would need to be carefully worded, however, if Congress wished to preserve the current practice that § 81 contracts and agreements cannot otherwise be used to substitute for mineral leases and agreements. It is possible that a broader amendment may be necessary to preserve tribes' options under other statutes if the IMDA definition of minerals is expanded to include renewables. The proposed expansion of the IMDA suggested here is not intended to replace any existing authorities, but to supplement them. Just as the IMDA authorization of minerals agreements did not replace [*131] the IMLA authority to enter into mineral leases, and the TERA process for energy agreements did not replace either IMDA agreements or IMLA leases, n186 the proposed expansion of the IMDA is intended as one more option for tribes. Under the proposed amendment to the IMDA definition of minerals, for example, a tribe seeking to construct a wind farm on tribal land could do so using a lease under § 415, an easement under § 81, a negotiated lease or other minerals agreement under the IMDA, or an agreement pursuant to an approved TERA under ITEDSA. The tribe could weigh the advantages and drawbacks of each alternative, and chose the one that best suits its needs. Including a statement in the IMDA that it is not intended to replace other existing options would preserve tribes' self-determination rights to choose the best approach for that tribe.

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