Class Synopsis

Rights of Way II

This class will cover negotiations of rights of way, obtaining top dollar in condemnations, negotiation of fiber optic lines.

The Center for Applied Research for years has negotiated and obtained the top dollar for rights of way on and off the reservation. Chances are you could be receiving greater compensation for your rights of way. The term of most rights-of-way is too long. Are you taking the actions in advance of condemnation to increase the value of your property.

The instructors from the Center will provide you with the tools to increase the compensation on rights of way while limiting the term of the right of way. They will also provide you with information on the negotiation of fiber optics. A fiber optic line is negotiated differently from a utility easement.

  1. The legal context
    1. What is a right-of-way easement?
    2. The Right-of-way Act of 1948
    3. Regulations – 25 CFR Part 169
    4. BIA Policy
    5. Service line agreements vs. rights-of-way
    6. Trespass vs. prospective easement
    7. Legal representation in easement negotiations and settlement
  1. Types of rights of way
    1. Pipelines
    2. Electric transmission lines
    3. Fiber optic/telecommunications
    4. Cable TV
    5. Roads/transportation
    6. Other
  1. Compensation
    1. The "negotiation envelope"
    1. "Fair market value" – the traditional appraisal
    2. Net income method
    3. The company’s cost to build around the reservation
    4. Other considerations
    1. Partnerships/joint ventures/alliances
    2. Transaction costs
    3. Non-monetary compensation
  1. Other issues to consider
    1. Term (Years)
    2. Renewal options and compensation
    3. Tribal employment opportunities
    4. National Environmental Policy Act (NEPA)
    1. Categorical Exclusion
    2. Environmental Assessment
    3. Environmental Impact Statement
    1. Cultural resource protection
    2. Conditions on construction
    3. Environmental restoration
    4. Monitoring requirements
  1. Preparing for negotiations
    1. Tribal considerations
    1. Tribal council involvement
    2. Tribal administration involvement
    3. Non-governmental involvement (elders/members)
    1. The negotiating team
    2. The negotiating timetable
  1. The negotiations
    1. "Breaking the ice"
    2. The first meeting
    3. Nonverbal communication
    4. Dealing with difficult personalities
    5. Closing the business deal
  1. The settlement
    1. Tribal consent – bringing the business deal to the tribal council
    2. Determining the form of the settlement
    1. Easement agreements
    2. Permission to survey
    3. Conditional grant of easement
    4. Grant of easement
    1. Keeping control of the documents
  1. Monitoring the company’s performance
  2. The future of rights-of-way on Indian land
  3. Case studies
    1. Fiber optic line
    2. Pipeline
    3. Electric transmission line
    4. Road

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