25 C.F.R. § 169.3
To what land does this part apply?
(a) This part applies to Indian land and BIA land.
(b) We will not take any action on a right-of-way across fee land or collect compensation on behalf of fee interest owners. We will not condition our grant of a right-of-way across Indian land or BIA land on the applicant having obtained a right-of-way from the owners of any fee interests. The applicant will be responsible for negotiating directly with and making any payments directly to the owners of any fee interests that may exist in the property on which the right-of-way is granted.
(c) We will not include the fee interests in a tract in calculating the applicable percentage of interests required for consent to a right-of-way.
Notes of Decisions
Cited in 10
cases, 1983–2020 · leading case: United States v. Mitchell, 463 U.S. 206 (1983).
United States v. Mitchell, 463 U.S. 206 (1983). “[28] See also 25 CFR § 169.3 (1983) (consent of Indian landowners to grants of rights-of-way); § 169.”
Begay v. Pub. Serv. Co. of NM, 710 F. Supp. 2d 1161 (D.N.M. 2010). “While, generally, consent of the owner or owners of the land is required for the granting of a right of way, see 25 C.F.R. § 169.3 , 25 U.S.C. § 324 sets forth the instances when consent of the owner or owners is not required.”
United States v. Yakima Tribal Court, 806 F.2d 853 (9th Cir. 1986). “They contend that WIP and Hil-derbrand violated the federal constitution, statutes and regulations. They cite the Sohappys’ allegation that, before rights-of-way can be granted over Indian trust lands, a majority of the owners must give written consent.”
United States v. Yakima Tribal Court of the Yakima Indian Nation & David Ward, Tribal Judge, 794 F.2d 1402 (9th Cir. 1986). “§§ 323-28 ; 25 C.F.R. § 169.3 . They say also that just compensation must be paid to allottees for canal rights-of-way.”
Del Rio Drilling Programs, Inc. v. United States, 35 Fed. Cl. 186 (Fed. Cl. 1996). “3 states that tribal consent is required where rights-of-way are to be granted over both tribal and individually owned lands, with certain exceptions to the consent rule for individually owned lands.”
Pub. Serv. Co. v. Approximately 15.49 Acres of Land in McKinley, 167 F. Supp. 3d 1248 (D.N.M. 2016). “See 25 C.F.R. § 169.3 (effective Mar. 21, 2016).”
Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., 228 F. Supp. 3d 1171 (W.D. Wash. 2017). “§ 328 ), specifically required prior written consent from the Tribe to obtain a right of way and made clear that any conditions on the consent constitute limitations on the easement, that the IRWA and the implementing regulations apply to railroad rights of way, and that a…”
New Mexico Navajo Ranchers Ass'n v. Interstate Com. Comm'n, 702 F.2d 227 (D.C. Cir. 1983). “§§ 323-328 (1976), and regulation 25 C.F.R. § 169.3 (1982), Star Lake must obtain the consent of the Indian owners along the right-of-way.”
W. Refining Sw., Inc. v. United States Dep't of the Interior, 450 F. Supp. 3d 1214 (D.N.M. 2020). “See 25 C.F.R. § 169.3 (c)(2) (Apr. 1, 2015) Western contends that “Indian allotment ownership has little in common with general property law.”
Navajo Commc'ns Co. v. Navajo Tax Comm'n, 6 Navajo Rptr. 366 (1991). “25 C.F.R. § 169.3 (a) (1990). The Contract of Sale was signed by the BIA and Navajo Communications on April 30, 1970, and accepted on the same date by Chairman Raymond Nakai on behalf of the Navajo Tribe.”
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