Indian Country Energy and Mineral Development in R M

Rocky Mountain Mineral Law
Foundation
www.rmmlf.org
Special Institute on
Energy and Mineral Development in
Indian Country
Marriott Tucson University Park Hotel
Tucson, Arizona
November 6–7, 2014
Laws, policies, and practices regarding natural resources development in “Indian country” have
evolved considerably in recent years. The pace of energy and mineral development on tribal and other
Native American and Alaskan Native lands has greatly increased. The development and transactional
landscape has changed, and new entrants into tribal resource development are on the rise. Tribes
themselves are actively participating and/or regulating such development. Efforts to streamline the
process of development are continuing on both the regulatory and policy fronts, and creative and
productive approaches to the laws and policies that affect financing have provided greater security
for investing in Indian country resources development. Meanwhile, federal, and some state, agencies
are becoming more accommodating to tribal involvement in the development of off-reservation federal
lands and resources.
This program is essential for anyone
investing in, developing, or operating in
Indian country, and for tribal and other
government officials, academics, and Indian
law practitioners. A comprehensive set of
electronic course materials and a hosted
reception are included in the registration fee.
We hope to see you this November.
Written course materials and audio recordings
are available in various formats if you are
unable to attend. See inside for details.
Energy and Mineral Development in Indian Country
Thursday, November 6, 2014
7:00 – 8:15 am - Registration
Marriott Tucson University Park Hotel
8:15 – 8:30 am
Introductions and Opening Remarks
STEVIA M. WALTHER, Executive Director, Rocky Mountain
Mineral Law Foundation, Westminster, Colorado
MILAM RANDOLPH PHARO, President, Rocky Mountain Mineral
Law Foundation; Of Counsel, Davis Graham & Stubbs LLP,
Denver, Colorado
CONSTANCE L. ROGERS, Program Co-Chair, Partner, Davis
Graham & Stubbs LLP, Denver, Colorado
LYNN H. SLADE, Program Co-Chair, Partner, Modrall Sperling,
Albuquerque, New Mexico
PART ONE – SETTING THE STAGE
8:30 – 9:15 am
Why Indian Country? – An Introduction
This introduction will provide a framework for the entire program
by introducing the unique history of land tenure in “Indian
country” and addressing why conventional and unconventional
oil and gas, renewable energy, and mineral development in Indian
country are on the rise.
KEVIN K. WASHBURN, Assistant Secretary for Indian Affairs,
U.S. Department of the Interior, Washington, DC
9:15 – 10:45 am
Cooperative Development – Doing the Deal:
The Moapa Solar Development
Setting the stage for the rest of the program, the panel members
will present the perspectives of the Moapa Band of Paiutes, the
project developer, and the Bureau of Indian Affairs concerning
the Moapa Solar Project—the first utility-scale solar project
on a tribal reservation. This project serves as an example
of cooperative development and gives context to the legal
frameworks discussed by other presenters.
GLENN M. FELDMAN, Member, Dickinson Wright PLLC, Phoenix,
Arizona
STAN WEBB, Regional Realty Officer, U.S. Bureau of Indian
Affairs, Phoenix, Arizona
JENNIFER CARLETON, Shareholder, Brownstein Hyatt Farber
Schreck, LLP, Las Vegas, Nevada
LYNN H. SLADE, Partner, Modrall Sperling, Albuquerque, New
Mexico, Moderator
10:45 – 11:00 am - Coffee Break
PART TWO – THE LEGAL LANDSCAPE
11:00 – 11:45 am
Federal Management of Tribal Lands and Resources
The Non-Intercourse Act, trust responsibility, recent developments
on 25 U.S.C. Section 81 and regulations to expedite development,
revisions to 25 C.F.R. Part 162 regulations for solar and wind energy development and business leasing, and other authorities will
be addressed to better understand how tribal lands and resources
are managed.
MARIAN C. LALONDE, Of Counsel, Quarles & Brady, LLP, Tucson,
Arizona
11:45 am – 1:15 pm - Hosted Buffet Lunch and Presentation
Sustaining Relationships through Thick and Thin: Successful
Energy and Minerals Development in Indian Country
JOSEPH P. KALT, Ford Foundation Professor (Emeritus) of Int’l
Political Economy, and Co-Director, Harvard Project on American
Indian Economic Development, John F. Kennedy School of Government, Harvard University, Cambridge, Massachusetts
1:15 – 2:00 pm
Tribal Management of Tribal Lands and Resources: Environmental Regulation
Tribes have sovereign authority to manage most tribal resources,
and have delegated authority under some federal environmental
laws where they are treated as states. This presentation will provide an overview of tribal environmental regulation of tribal lands
and resources, including the federal framework such as the EPA
tribal authority rule and the recently adopted new source review.
This session will also address the jurisdictional issue inherent in
the legal definition of Indian country.
WILLIAM C. SCOTT, Partner, Modrall Sperling, Albuquerque, New
Mexico
2:00 – 2:45 pm
Tribal Management of Tribal Lands and Resources: Business
Regulation
Tribal laws governing reservation business, including uniform commercial codes, labor and employment laws, and other business and
licensing requirements, will be addressed in this session.
KATHERINE BELZOWSKI, Attorney, Litigation & Employment Unit,
Navajo Nation Department of Justice, Window Rock, Arizona
2:45 – 3:00 pm - Coffee Break
3:00 – 4:15 pm
Regulating Commerce: Federal Oversight of the Development
of Oil, Gas, and Coal Resources on Indian Lands
While tribes have a paramount role in tribal resource development,
tribes and companies working on Indian lands remain subject to
federal oversight. This presentation will provide an overview of
tribal oil & gas and coal leasing, the Indian Mineral Development
Act, Tribal Energy Resource Agreements under the Energy Policy
Act of 2005, and resource-specific considerations. It will look at a
proposed federal rule regulating the use of hydraulic fracturing on
Indian lands. The speaker will address direct tribal involvement in
oil & gas development and Indian coal leasing, as well as the potential development of coal export terminals and the development
of tribal coal.
SCOT W. ANDERSON, Partner, Hogan Lovells U.S. LLP,
Denver, Colorado
4:15 – 5:00 pm
Allottee Issues
The process of obtaining contractual rights to develop resources
on allotted lands differs from that on tribal lands. This presentation will address tribal, allottee-landowner, and BIA roles, as well
as rights and responsibilities in negotiating for contractual rights
to, and development of, resources on allotted lands. The session
will also address issues regarding tribal authority as to terms and
operations on allotted lands, and taxation, regulatory authority,
and condemnation issues.
JEFFREY HUNT, Chief, Branch of Engineering, Division of Energy
and Mineral Development, Office of Indian Energy and Economic
Development, U.S. Assistant Secretary - Indian Affairs, Lakewood,
Colorado
STEPHANIE P. KIGER, Attorney-Adviser, Office of the Solicitor,
Southwest Region, U.S. Department of the Interior, Albuquerque,
New Mexico
SHARON PUDWILL, Attorney-Adviser, Twin Cities Field Solicitor’s Office, Office of the Solicitor, U.S. Department of the Interior,
Bloomington, Minnesota
5:00 – 6:00 pm - Hosted Reception
Energy and Mineral Development in Indian Country
Friday, November 7, 2014
8:00 – 8:15 am
Day One Summary and Introduction to Day 2
CONSTANCE L. ROGERS, Program Co-Chair, Partner, Davis
Graham & Stubbs LLP, Denver, Colorado
LYNN H. SLADE, Program Co-Chair, Partner, Modrall Sperling,
Albuquerque, New Mexico
8:15 – 9:00 am
Tribal Rights-of-Way
Issuance of rights-of-way for conventional and renewable
energy development, including electric transmission, pipeline,
and access rights-of-way, will be addressed. The presentation
will discuss current issues regarding the requirement of tribal
consent, allotment, condemnation, and valuation.
COLBY L. BRANCH, Partner, Crowley Fleck PLLP,
Billings, Montana
ALAN C. BRYAN, Partner, Crowley Fleck PLLP, Billings, Montana
9:00 – 9:45 am
Dispute Resolution, Enforcement, and Jurisdiction
Tribal sovereign immunity; tribal, state and federal court
jurisdiction; and enforcement issues—and why these issues
matter in “doing the deal” and in cooperative development and
operation of natural resources development with tribes—will be
the focus of this session.
JENNIFER H. WEDDLE, Partner, Greenberg Traurig LLP, Denver,
Colorado
9:45 – 10:00 am - Coffee Break
10:00 – 10:45 am
Renewable Energy Focus
Several tribes have recently developed, or participated in
the development of, on-reservation solar and wind projects.
This session will provide an overview of the mechanisms for
development of tribal renewable energy, especially wind and
solar, including business leasing, tax issues, and finance. It
will also address the 25 C.F.R. Part 162 regulations, and issues
surrounding transmission and transmission corridors.
PILAR M. THOMAS, Acting Director, Office of Indian Energy
Policy and Programs, Department of Energy, Washington, DC
NATHAN A. KARMAN, Of Counsel, AterWynn LLP, Portland,
Oregon; Former Attorney, Forest County Potawatomi Community
PART THREE – DOING THE DEAL
10:45 – 11:30 am
Across the Cultural Divide: Cultivating a Common Business
Language and Respectful Working Relationship
Businesses and lawyers new to Indian country and tribal
business and government leaders at times have encountered
obstacles to forming a constructive, respectful business
relationship. In addition to the obvious differences in culture,
each party’s language of business and economic values may also
seem foreign. Two veterans of the search for common ground
will describe their experiences and make recommendations for
tribes and their business partners on how to cultivate a mutually
beneficial business relationship.
RYAN C. RUSCHE, Attorney, Assiniboine and Sioux Tribes of the
Fort Peck Reservation, Poplar, Montana
CAMERON J. CUCH, Vice President, Crescent Point Energy,
Roosevelt, Utah
11:30 am – 1:00 pm - Lunch – On Your Own
1:00 – 1:45 pm
Basics of Transactions with Indian Tribes: Choice of Entity
and Drafting Issues
This presentation will address the basics of transactions
with tribes, including options for and choice of entity; tax
considerations and available incentives; and the mechanisms
(and their limitations) for dealing with enforceability, sovereign
immunity, jurisdiction, and managing and operating issues that
arise when a private party engages in a cooperative business
venture with a sovereign. It will also focus on structuring
transactions and due diligence.
KENT E. RICHEY, Partner, Faegre Baker Daniels LLP,
Minneapolis, Minnesota
1:45 – 2:30 pm
Cooperative Development: Managing and Operating Issues
Operations and management in the context of cooperative
development are the focus of this presentation. Important to
operations is the interplay between a tribe acting as a business
partner and its role as a sovereign, including police powers and
the powers of regulation and taxation.
MICHAEL P. O’CONNELL, Partner, Stoel Rives LLP,
Seattle, Washington
2:30 – 2:45 pm - Coffee Break
2:45 – 3:30 pm
Cooperative Development with Indian Tribes: Finance and
Lending in Indian Country
Traditional financing secured by assets can be complicated
in Indian country. Obtaining a valid security interest, lien, or
mortgage over protected trust assets has been complicated by
rules prohibiting the sale and governing the encumbrance of
lands held in trust for tribes or individual Native Americans.
Recent changes clarifying and easing restrictions are opening the
door to greater outside investment in Indian country in general,
and in natural resources development in particular.
NANCY J. APPLEBY, Appleby Law PLLC, Alexandria, Virginia
3:30 – 4:30 pm
Ethics Issues in Tribal Resource Transactions
Federal, state, and tribal anti-corruption laws may apply to
business transactions with tribes and tribal members. This
presentation will discuss this potential applicability and the
ethical ramifications.
TROY A. EID, Partner, Greenberg Traurig, LLP, Denver, Colorado
4:30 pm - Course Adjournment
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PROGRAM COMMITTEE
CONSTANCE L. ROGERS, Co-Chair, Partner, Davis Graham &
Stubbs LLP, Denver, Colorado
LYNN H. SLADE, Co-Chair, Partner, Modrall Sperling,
Albuquerque, New Mexico
MARIAN C. LALONDE, Of Counsel, Quarles & Brady, Tucson, Arizona
SCOT W. ANDERSON, Partner, Hogan Lovells U.S. LLP,
Denver, Colorado
MELISSA MEIRINK, Denver, Colorado
NEIL G. WESTESEN, Partner, Crowley Fleck PLLP,
Bozeman, Montana
REID P. CHAMBERS, Partner, Sonosky, Chambers, Sachse,
Endreson & Perry, LLP, Washington, DC
Energy and Mineral
Development in
Indian Country
ROBERT E. HALL, Assistant Regional Solicitor, Office of the Solicitor
Southwest Region, U.S. Department of the Interior,
Albuquerque, New Mexico
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GENERAL INFORMATION
Room Reservations: The Marriott University Park, 880 East 2d
St., Tucson, AZ 85719, has blocked rooms for this Institute until
October 10 at the rate of $125/night. A small block of rooms at
government rates is also available. Ask for special rates for Rocky
Mountain Mineral Law registrants.
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hosted functions as listed in this brochure. These fees do not
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purchase order or training form, credit card information, or wiring
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please notify us at least two weeks before the program.
in
Registration Cancellations: Refunds, less a $50 adminis­tra­­
tive fee, will be given for cancel­la­tions received by 3:00pm on
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CLE Credit: Foundation conferences are typically accredited by all
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of ethics. You must let us know at least 30 days in advance of
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website: www.learningmarket.org. There are no prerequisites and
no advance preparation is required to attend this course. The
delivery method is Group–Live, and up to 15.5 CPE credits are
available, including 1 ethics credit. The program level is “overview.”