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


There is, however, a definitional issue. The IMLA and IMDA apply to mineral development



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There is, however, a definitional issue. The IMLA and IMDA apply to mineral development. The IMDA specifies that minerals include fossil fuels (oil, natural gas, coal), as well as other traditional energy resources (uranium, geothermal). n23 Those minerals named, however, are not intended to be an exclusive list. The IMDA definition includes "other energy or non-energy mineral resources," and the regulations for both statutes refer to "any other energy or non-energy mineral." n24 But the potential for mischief lies in the word "mineral." There is no single, universally-accepted definition of what a mineral is, although most definitions include some or all of the following characteristics: inorganic, solid, usually crystalline, having a definite chemical composition, and formed as a result of geological processes. n25 The International Mineralogical Association defines a mineral as "an element or chemical compound that is normally crystalline and that has been formed as a result of geological processes." n26 Similarly, the Mineralogical Society of America provides that "[a] mineral substance is defined as a naturally occurring, homogeneous solid, inorganically formed, with a well defined chemical composition (or range of compositions), and an ordered atomic arrangement, that has been formed by geological processes, either on earth or in [*98] extraterrestrial bodies." n27 These definitions of mineral, of course, exclude the most common "minerals" extracted from Indian lands: oil and natural gas. Neither, for example, is a solid or crystalline in structure. Nonetheless, Congress has consistently been explicit that all the fossil fuels are included within the mineral development statutes, n28 and a statutory definition trumps a scientific definition for purposes of law. Consequently, the term "mineral" in Indian law is routinely used to include oil and natural gas. n29 What, then, of the renewable energy resources - wind, solar, and biomass? They are not crystalline in structure, they have not been formed as a result of geological processes, and the one that is a solid is most definitely not inorganic. Are these energy resources "minerals" within the meaning of the IMDA? At the time the IMDA was under consideration and drafting, no one was thinking in terms of wind energy, solar power, or biomass. The focus at the time was on traditional energy sources that had routinely been considered minerals under the IMLA: oil and gas, coal, and uranium. n30 Many of the traditional energy tribes were chafing against the bounds of the IMLA in light of the new federal policy of tribal self-determination. n31 As a result, the discussion and testimony surrounding passage of the IMDA focused on freeing the energy tribes to develop their fuel resources in ways that would benefit the tribes to a far greater degree than standard leasing ever did or could. There is thus no express statutory language about renewable energy resources. And [*99] although the legislative history and rules of statutory construction provide clues, there is no real clarity. First, there is essentially no discussion in the legislative history of the IMDA about what a "mineral" is, likely because everyone involved understood that "mineral" meant actual minerals plus fossil fuels. Congress did include a definition of "mineral resources" in the statute itself, a definition that tracks that common understanding: "oil, gas, uranium, coal, geothermal, or other energy or nonenergy mineral resources." n32 From that formulation, it appears certain that Congress intended the IMDA to apply broadly. Both the statutory and regulatory language includes "other energy" in the definition of minerals. Remarks by IMDA sponsors in the Congressional Record focused on the need for "energy" development. Senator Melcher spoke of tribal "energy development," and he, Representative Udall, and Representative Bereuter all commented on the need for increased development and production of domestic energy to meet national needs. n33 Moreover, reading the IMDA broadly to apply to all energy resources is consistent with the Indian law canons of construction. The interpretive rules for Indian legislation mandate that statutes be construed in favor of the Indians and that ambiguities be resolved in favor of the tribes. n34 Construing "other energy" in the IMDA definition of minerals broadly in favor of the tribes means that renewable energy resources such as wind, solar, and biomass would be included. If "other energy" is ambiguous, then the canons would require that "energy" be interpreted to include renewable sources in addition to traditional fuel sources. Reading the IMDA in the light most favorable to the tribes, Congress did not intend to restrict its application to traditional minerals, but to open up development alternatives for tribes. On the other hand, the actual wording of the IMDA is "other energy or nonenergy mineral resources." Although this could be parsed as "other energy resources or other nonenergy mineral resources," that is a far more awkward reading than the assumption that the word "mineral" applies to both energy [*100] resources and nonenergy resources. When Congress intended to include non-"minerals" within the reach of the IMDA, it specified what those resources were. Thus, oil, natural gas, and geothermal resources - none of which comes within the usual definitions of a mineral - are expressly included. Given this specificity, the typical rule of statutory construction, that the inclusion of some implies the exclusion of all others, n35 would mandate that non-"mineral" resources not included in the statutory definition be excluded. The Supreme Court has announced, however, that "standard principles of statutory construction do not have their usual force in cases involving Indian law." n36 More specifically, the Court has rejected the use of the inclusion/exclusion principle in Indian law cases. In Bryan v. Itasca County, the state of Minnesota argued that Public Law 280, n37 providing that the "civil laws of such State" applied in Indian country, granted the state the authority to impose a personal property tax on a mobile home owned by tribal members and located on trust lands. n38 The state based its argument on a second provision of Public Law 280, which stated that nothing in that statute authorized the "taxation of real or personal property" held in trust. n39 The state thus argued that "civil laws" must include the general authority to tax within Indian country, because otherwise the specific exclusion for taxation of trust property had no meaning. n40 Under the state's approach, the state could tax non-trust personal property (such as the mobile home) because Public Law 280 excluded only taxation of trust property. The Court unanimously rejected the state's approach. Noting that the statute was ambiguous, the Court stated that "we must be guided" by the Indian law canons of construction and resolve the statutory ambiguity in favor of the Indians. n41 As strong as the preference for the Indian law canons of construction may be, however, the Supreme Court has not [*101] hesitated to abandon these canons when it suits. n42 As a result, while the IMDA perhaps should be interpreted broadly to apply to energy resources as well as traditional minerals and fossil fuels, an interpretation favoring Indian tribes is by no means guaranteed. Thus, whether the IMDA would apply to non-"mineral" energy resources - that is, renewables other than geothermal - is uncertain. And uncertainty impedes development. n43 A good illustration of the problem that uncertainty creates is the situation that led to passage of the IMDA itself.


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