It’s not a right-of-way, its a wrong way

no-trespassing

Recently I wrote a series of articles on rights-of-way across Indian lands. Each of these articles were meant to help Indian land owners to better understand processes and purposes of rights-of-way. The following articles are part of this series:

Part 1 – Don’t ask, don’t tell still exists in Indian Country
Part 2 – Do you want to get married, or just shack up?
Part 3 - Don’t Close your eyes because if they steal from God, they will steal from you
Part 4 - Nothing changes but the numbers on the calendar

After pondering these articles and seeing this issue is larger than most folks realize, I believe it is important to re-emphasize these articles because the issues are not going to disappear. They are only going to compound and create even more loss of present and future income due to Indian landowners.

First of all, you have to understand that rights-of-way, easements, or any of a number of other types of right-of-way, i.e. navigable, aerial, or even water, basically are an authorized right to use given by a landowner to another party. Rights-of-way specifically means "the right to pass through property owned by another." (Black's Law Dictionary, 8th Edition, 2004). A right may be established by a contract, agreement, public authority such as a law or condemnation, and even through longstanding use if not pursued timely.

An Easement is defined as "interest in a land owned by another, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose, such as occurs in access to a public road. (Black's Law Dictionary, 8th Edition, 2004)

Condemnation is an entirely different beast. Allotted lands, not tribally-owned lands, may be condemned under 25 USC § 357 - Condemnation of lands under laws of State, in a federal court of jurisdiction, or if granted by the Department of Justice, may be transferred to a state court where condemnation is generally granted except for extenuating circumstances with very little impedance from the Federal Government. Condemnation will ensure that an Indian landowner is compensated by a fair market value (FMV) but can reduce cash up front if the court determines that the landowner will receive a benefit from a right-of-way that can reduce or offset the value of what land is being taken, or condemned for a public purpose. If you have your homesite on your allotment and a road provides your only means of easily accessing your homesite, that can be construed as a benefit to your land.

The key to a right-of-way is successfully negotiating compensation and terms which both parties can agree to. Condemnation proceedings can cost more than what could be negotiated between the parties in many cases, and it spares litigation costs which may exceed compensation offset by the benefit of granting a right-of-way by the Indian landowner. However, all of these non-owner uses require two unique ingredients in accordance with law - consent by the Indian landowner, fair market value or offsetting benefit to the Indian landowner, or a combination of both is applicable.

There are several rights-of-way Acts providing statutory authority on Indian lands. The significant  Act primarily used today is the  Act of February 5, 1948 (62 Stat. 17) which is an Act "To empower the Secretary of the Interior to grant rights-of-way for various purposes across lands of individual Indians or Indian tribes, communities, bands or nations." The significance of this Act required that Indian landowner consent must be obtained whereas previous Acts provided the Secretary of the Interior authority to grant rights-of-way on behalf of Indian landowners without their consent. Because of the passage of this Act, the required consent must be obtained of Indian landowners before he Secretary can grant a right-of-way.

Major confusion about rights-of-way is that a lease gives a lessee the right to create or establish a right-of-way without further consent "on leased premises." Accessing other allotments or portions of a leased allotment, which are not under that specific lease, do not give the lessee the right to create additional unauthorized access to his leased acreage without obtaining the required consent of those landowners. In simpler terms, if you own 160 acres in an allotment where  the lessee leases 40 acres, he must "have" negotiated or must obtain a right-of-way to gain access to his leased acreage.

This practice creates an income reduction for the landowner by decreasing the leasable acreage for that portion of the allotment the lessee does not lease. Lessee A leases 40 of the 160 acre allotment and Lessee B leases the remaining 120 acres, however a road decreases Lessee B's useable acreage by taking away his usable acreage under lease and generally paid for in advance of his use. If a right-of-way is successfully negotiated for Lessee B's loss of usable acreage, his annual rent must be reduced meaning that over a long term, the landowner loses earning power. A FMV really can't account for a long term use where a road cuts through Lessee B's leased acreage over the lifetime of an oil well because no one can really estimate how long the well can produce and there is a need for the road access. Lessee B's annual rent for a ten year lease is reduced and the loss is compensated through a FMV payment. If the well and required use of the road exceeds ten years and is possibly extended for thirty or forty years, you can lose an additional twenty or thirty years of annual rent which will not be covered in the FMV obtained by an appraisal. This rationale is why I recommend reviewing the FMV every five to ten years during the life of the right-of-way so that a reasonable FMV has been obtained and will continue to be obtained throughout the full life of the right-of-way.

And finally, a right-of-way must specify the intended purpose of the grant.  If the right-of-way specifies that the purpose is for the construction and maintenance of a road by the grantee, or user, no other use or purpose is authorized and piggybacking on an existing right-of-way for a different intended purpose, or overburdening the land should be considered trespassing. Piggybacking and overburdening of land in a right-of-way  occurs when there may be an erroneous belief the only authorized right-of-way (i.e. road) created a public utility corridor such as a homesite access, electrical, telephone, internet service, or even a pipeline use absent the landowner's consent. The Secretary is responsible to prevent overburdening of Indian lands when considering approval or disapproval of a lease or right-of-way. Overburdening could include multiple uses in which the landowner hasn't consented to nor been compensated for use of his or her land.

All of this information may seem overwhelming to landowners, but in it's simplest form, when negotiated and processed properly, it is a fairly simple process. Others can confuse you but if you understand the process, you can make decisions about the use of your land without giving away that right. So I have written all of this to say this - When is a right-of-way not a right-of-way? When you as a landowner have not consented to and been compensated at FMV for use of your land. It's not a right-of-way, but it's a wrong way. And it should not be allowed to happen unless you allow it to happen by not doing anything about it.

The sad part of these undocumented uses, or inability to produce and record a properly executed right-of-way which are in reality a trespass,  was absolved or released of liability when the  Cobell Class members accepted the Cobell Settlement. The act of illegally using your land is still a trespass, but Cobell Class members can't pursue past damages and use incurred before the final approval date of the Cobell Settlement. You still can file a complaint within the statute of limitation period which begins upon your knowledge of the unauthorized use by negotiating a settlement resulting in a right-of-way granted by the Secretary of the Interior. This is difficult and hard to prove sometimes and especially if a landowner has been using an illegal road for a long period of time to access your homesite or farmland.

As I have stated many times, know your rights and learn how to take control of the destiny of your Indian allotted lands.