Infrastructure Series: Tribes and Infrastructure

by WilmerHale
Contact

This is the ninth issue of WilmerHale's 10-in-10 Infrastructure Series. In this series, our attorneys share insights on current and emerging issues affecting infrastructure project developers in the United States. Attorneys from various practice groups at the firm offer their take on issues ranging from permitting reform to financing to litigation, and share their insights from working with clients in a variety of infrastructure sectors, from water infrastructure to energy development to infrastructure development on tribal lands. Read all issues in this series and our other recent publications.

Infrastructure needs are significant across the country, but it would be hard to find any locality or region where the needs are higher than in Indian Country. In recent years, both Congress and the Administration have taken steps to increase available funding for infrastructure servicing tribes. There has also been a renewed focus on ensuring that tribes have a voice in the development of private infrastructure projects that impact tribal lands or interests. In this issue of our Infrastructure Series, we offer our views on (1) a number of new and proposed funding sources for infrastructure development on tribal lands; and (2) effective engagement of tribes in private infrastructure projects, including a number of specific recommendations for developers of projects that cross tribal lands or may impact tribal interests.

Funding Infrastructure in Indian Country: Some Steps in the Right Direction

For Indian communities, decades of underinvestment have resulted in decaying or nonexistent infrastructure across every sector—from electricity to broadband to water to transportation. In 2009, during the congressional debate regarding the American Recovery and Reinvestment Act, the National Congress of American Indians presented a Tribal Recovery Plan requesting at least $6.13 billion in federal investment to develop and maintain infrastructure in Indian Country's schools, homes, tribal government buildings, roads and bridges, water and waste water facilities, public safety buildings, health facilities, emergency and broadband networks, and energy and natural resource facilities. The need has only grown since then. For example, while 1% of the US general population lacks access to safe water supplies, 9% of Indian homes lack such access.1 Also, 14.2% of tribal households lack access to the most basic electricity service.2 And 35% of Americans living on tribal lands lack access to broadband at speeds deemed eligible for advanced telecommunications services, as compared with only about 2% of those living in urban centers.3

Recognizing these needs, Congress has taken recent action to increase the resources available for infrastructure development in Indian Country. The recently enacted omnibus appropriations bill includes approximately $355 million for construction projects in Indian Country related to schools, public safety and law enforcement facilities, and natural resource development.4 This amount is over $200 million above the amount requested in the Trump 2018 budget. Of particular note, it appears that with the increased construction appropriation, Congress is jump-starting the program it authorized in late 2016 through the Water Infrastructure Improvement for the Nation Act to increase investment in dam safety and maintenance, as well as irrigation system construction and rehabilitation in Indian Country.5 The disrepair of this infrastructure has been a long-standing issue. So has the lack of access to potable water, and the omnibus also contains over $150 million for the implementation of Indian water rights settlements.

President Trump's Infrastructure Plan also highlights the needs for infrastructure improvement in Indian Country. While Indian tribes are not a primary focus of the funding initiatives set forth in the plan, there is one area specifically focused on tribal infrastructure needs. The plan would have Congress establish a Rural Infrastructure Program, proposed for $50 billion over 10 years that would be used for capital investment in rural infrastructure. Of the total amount, $40 billion would be distributed to state governors for infrastructure projects, and $10 billion would be distributed as rural performance grants under a rural infrastructure investment plan. An undetermined amount would be set aside to provide “dedicated funding to the Secretary of Transportation for distribution through the Tribal Transportation Program and to the Secretary of the Interior for distribution through grants or awards to Tribes determined by a process created in consultation with Tribes.” At this point, it does not appear that legislation has been introduced to move the president's proposal forward.

Overall, while there is still a long way to go to address the large and diverse number of investment needs in Indian Country, ongoing support and some additional resources are available in the short term to continue to invest in key areas of infrastructure development.

Tribal Participation in Private Infrastructure Projects

Beyond the need for investment in basic infrastructure on tribal lands, there are also many privately funded infrastructure projects that involve or implicate tribal lands and interests. In furtherance of the policy of self-governance, many tribes have secured greater authority to act independent of their trustee, the federal government, in developing partnerships and business arrangements with private infrastructure developers. Accordingly, when a project implicates tribal interests, engaging with tribal governments directly to evaluate impacts and try to address them through negotiation always has its advantages. While tribes are sensitive to the devastating impacts of infrastructure projects that historically were developed without their participation, many also view infrastructure development as an important economic opportunity.

In the case of large or complex infrastructure projects, it is also likely that there will be a federal role in permitting or approving certain aspects of the project, and in these circumstances, the government has unique responsibilities to Indian tribes in carrying out its duties. As a threshold matter, there is a duty of government-to-government consultation arising out of Executive Order 13175 (Nov. 6, 2000), as reaffirmed by President Obama in a Presidential Memorandum issued on November 9, 2009. E.O. 13175 and the Presidential Memorandum direct agencies to engage in tribal consultation regarding policy decisions “that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.” Early and repeated consultation is appropriate and necessary in those circumstances where significant tribal interests are at stake.

Two key statutes for addressing issues raised in the consultation process are the National Environmental Policy Act and the National Historic Preservation Act (NHPA). Both are procedural statutes, which require federal agencies to seek feedback from and consider the views of the public and federally recognized tribes, respectively. Section 106 of the NHPA requires each federally recognized tribe to be given “a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects.”6 These notification and consultation obligations must be satisfied even for projects that qualify for streamlined federal review under the FAST-41 Act and the new “One Federal Decision” Memorandum of Understanding.

In recent years, federal agencies have reviewed their practices for incorporating the views of tribes in federal decisions about infrastructure projects. In January 2017, following several months of extensive tribal consultation, the Departments of the Interior, Army and Justice issued a report with recommendations for improving tribal consultation and tribal involvement in federal decisions about proposed infrastructure projects.7 In May 2017, the Advisory Council on Historic Preservation also issued a report on improving tribal consultation for infrastructure projects.8

Advice for Project Developers

While these reports focus on actions the federal government can take to improve tribal consultation, project developers also play an important role in this process. Below are our recommendations for steps private developers can take to ensure effective engagement and consultation with tribes:

  • Engage Early and Directly. Even as the federal government is carrying out its obligations to consult and address any relevant issues through the permitting and/or approval processes, there are still distinct advantages to continued direct engagement between private developers and tribal governments. Such engagement should start as early as possible in the project planning process. Any agreements to mitigate the impacts of projects, employ tribal expertise or share in certain benefits of the project will likely help facilitate a more efficient decision-making process by applicable federal agencies.
  • Consider Out-of-State Tribes. Project developers should make efforts to identify all federally recognized tribes that, while not currently located along the proposed project's site, “attach religious and cultural significance to historic properties in the area of potential effects.”9 The Section 106 regulations require a reasonable and good faith effort to identify Indian tribes that may have an interest in the impacted lands, including those tribes located outside of the state. Federal permitting agencies would be required to invite all such tribes to be consulting parties.
  • Reach Out to State-Recognized Tribes. The federal government consultation obligation extends only to federally recognized tribes. However, project developers would benefit from outreach to state-recognized tribes. These tribes may be able to assert that they have a “demonstrated interest” in the project's effects (e.g., ancestral ties to the area), and in such a case, the federal permitting agencies could choose to include such tribes as “additional consulting parties” in the Section 106 consultation.10 In addition, non–federally recognized tribes may be influential over consulting parties in the Section 106 process. For example, some federally recognized tribes may rescind support for the project under pressure from groups that are not federally recognized tribes. Therefore, outreach that is conducted with cultural sensitivity and that builds goodwill may help mitigate opposition to the project.
  • Schedule Teleconferences and Meetings. Consider supplementing written correspondence to tribes with scheduled teleconferences and regional meetings with tribal leadership. While not required under Section 106, efforts beyond written correspondence can result in more effective tribal consultation. ACHP guidance provides that “[c]onsultation constitutes more than simply notifying an Indian tribe about a planned undertaking. The ACHP views consultation as a process of communication that may include written correspondence, meetings, telephone conferences, site visits, and e-mails.”11
  • Maintain Close Communication With Agencies. The project proponent should meet regularly with the permitting agency to discuss the agency's approach to tribal consultation and discuss efforts to ensure that the consultation efforts completed to date are adequate, including any mitigation proposals or other responsive actions suggested during the consultation. While the project proponent can assist the formal consultation efforts with additional informal outreach to tribes, federal agencies are ultimately responsible for government-to-government consultation and Section 106 compliance, and the applicant's outreach cannot fulfill this obligation.

1 National Indian Health Board, Federal Indian Trust Responsibility: The Quest for Equitable Indian Healthcare at p. 96 (June 2016).
2 Department of Energy, Fiscal Year 2017 Budget Request, Vol. 3, p. 755 (Feb. 2016).
3 Remarks of FCC Commissioner Mignon L. Clyburn, Broadband Connectivity in Tribal and Rural Communities, Washington DC (Apr. 12, 2018)
4 Consolidated Appropriations Act, P.L. 115-141.
5 Water Infrastructure Improvement for the Nation Act, P.L. 114-322.
6 36 C.F.R. § 800.2(c)(2)(ii)(A).
7 Department of the Interior, Department of Army, Department of Justice, “Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions” (January 2017).
8 Advisory Council on Historic Preservation, “Tribal Consultation in Infrastructure Projects” (May 2017).
9 36 C.F.R. § 800.3(f)(2).
10 36 C.F.R. §§ 800.2(c)(5) and 800.3(f)(3).
11 ACHP Tribal Consultation Guidance at 5.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© WilmerHale | Attorney Advertising

Written by:

WilmerHale
Contact
more
less

WilmerHale on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.