For a century, Davis Graham and Stubbs LLP has served clients in the Rocky Mountain West – this history has given us a wealth of experience in the field of Indian law. Today, our attorneys represent companies doing business with tribes in a wide range of matters, and companies with project development that have other tribal concerns. We have handled matters involving Indian lands and other Indian law issues throughout the U.S., including New Mexico (Navajo, Jicarilla), Arizona (Navajo, White Mountain Apache, San Carlos Apache), Oklahoma (Osage), Colorado (Southern Ute, Ute Mountain Ute), Utah (Northern Ute), Wyoming (Shoshone-Arapahoe), Montana (Blackfeet, Crow, Fort Peck), North Dakota (Ft. Berthold, Yankton Sioux), Virginia (Mattaponi), and Nevada (Western Shoshone, Paiute).
We routinely represent companies operating on Indian lands concerning rights-of-way, access, and other surface use disputes; royalties, severance, and other taxes; tribal regulation; cultural resources; permitting; and Department of Interior approvals for agreements with tribes. We also represent companies in a wide variety of matters that raise Indian law issues including commercial, real estate investment, governmental housing, and regulatory concerns.
DGS represents tribal oil and gas lessees from initial exploration to final reclamation. We work with a wide range of oil and gas companies in obtaining permits for seismic operations, obtaining and defending oil and gas leases, posting bonds, obtaining approval of permits to drill, and acquiring necessary permits for, among other things, produced water and air emissions. We assist clients throughout the due diligence and negotiation process, including complex tribal jurisdictional issues, agreements under the Indian Mineral Leasing Act and the Indian Mineral Development Act, the HEARTH Act and obtaining the necessary approvals from the Bureau of Indian Affairs (BIA).
We assist clients in obtaining BIA and Bureau of Land Management approval for federal oil and gas units, frequently counsel clients on unit disputes, and have prosecuted and defended disputes between unit operators and non-operators over issues such as participating areas, drainage, and ownership interests. For mature oil and gas properties we assist clients in issues such as lease termination, plugging and abandoning wells, and reclamation.
We represent mining companies through the regulatory process to obtain state and federal approvals for mining operations in areas of traditional significance for tribes, or that are within the former territory of such tribes. We advise mining companies throughout the permitting process, including environmental reviews under the National Environmental Policy Act (NEPA), cultural reviews under the National Historic Preservation Act (NHPA) and tribal consultation under various laws and executive orders. We have successfully defended projects against claims that the use of federal lands infringes on tribal members’ religious liberty, including claims under the Religious Freedom Restoration Act and the American Indian Religious Freedom Act.
We represent utility-scale renewable energy developers seeking to develop wind and solar installations on or near tribal lands. In addition to the permitting, environmental and cultural issues arising under NEPA and the NHPA, wind projects may involve obtaining permits under the Bald and Golden Eagle Protection Act (BGEPA). As eagles are culturally important to many Indian tribes, Indian law and tribal issues may arise in renewable energy projects that are not necessarily located in close proximity to Indian lands. DGS has represented companies seeking permits under the BGEPA.
Because many Native American religious beliefs have connections to certain land areas, both on and off Indian reservations, the sensitive issue of Native American sacred sites increasingly arises in regard to project development. This occurs throughout the range of development in the West, from extractive and renewable energy projects, to transmission, transportation, recreation an educational facilities and activities. DGS attorneys are skilled in helping clients navigate this often highly-charged issue, from negotiating with tribes and federal agencies on mitigation or project re-siting, to litigating claims that clients’ projects or activities harm such sites.
Natural Resources Journal
After reaching water rights settlements, a number of Native American tribes find themselves with rights to more water than their reservations or pueblo communities presently need. As climate change exacerbates drought conditions in the western United States and demand for water increases, some tribes have leased these surplus water rights to public and private, non-Indian, users. Theoretically, this could be a boon for tribes, although the extent of the economic impact of water leasing is difficult to assess without an examination of each individual water lease. This paper attempts to illustrate the economic impact of Indian water rights leasing anecdotally, by examining the leasing efforts of one particularly successful tribe, the Jicarilla Apache Nation in northern New Mexico.
On March 12, 2014, the Environmental Protection Agency (EPA) will hold a public hearing in Denver, Colorado on the proposed "General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country," which the agency initially released on December 12, 2013, and published in the Federal Register on January 14, 2014 (79 Fed. Reg. 2546).
On July 1, 2011, the EPA's new Federal Implementation Plan (FIP) imposing air quality permitting requirements for stationary sources in Indian Country was published in the Federal Register. 76 Fed. Reg. 38748, 38770 (July 1, 2011). The FIP includes two New Source Review regulations applicable to the following stationary sources in Indian Country: (1) new and modified minor sources and minor modifications at existing major sources (Minor NSR Rule); and (2) new and modified major sources in portions of Indian Country designated as nonattainment (Nonattainment Major NSR Rule).
Davis Graham & Stubbs LLP today announced that Constance L. Rogers has returned to the firm as a partner, effective October 1. Ms. Rogers recently served as the Deputy Solicitor for Energy and Mineral Resources in the U.S. Department of the Interior, where she provided counsel to the Secretary, Deputy Secretary and Interior Department agencies on matters involving the development of energy and mineral resources on public lands and the Outer Continental Shelf. She returns to one of the largest energy, public lands and natural resources practices in the Rocky Mountain West.
The inaugural, 2010 edition of the U.S. News - Best Lawyers® “Best Law Firms” Guide ranks Davis Graham & Stubbs LLP as a national leader in mining law and mutual funds law – and honors the LoDo-based firm with first-tier regional rankings in energy, natural resources, commercial litigation and several corporate law areas, including tax, securities, private equity and M&A. U.S. News & World Report published the results yesterday. The survey included responses from 9,514 corporate executives, in-house lawyers, marketing officers or private practice attorneys.
The newly announced, 2011 edition of the Best Lawyers in America ranks Davis Graham & Stubbs LLP first in Colorado-based law practices for corporate governance and compliance law, environmental law, mergers and acquisitions law, natural resources law, oil and gas law and securities law. This year Best Lawyers recognizes 36 DGS attorneys, including 13 who have been named to the list for at least 10 years. Nearly half (46 percent) of DGS partners are recognized in the definitive guide to legal excellence, in addition to several attorneys of counsel to the firm. Best Lawyers is a peer-review survey of more than 39,000 in-house counsels and private practice attorneys.
The United States Supreme Court has been asked to, and may soon, provide guidance on the Religious Freedom Restoration Act ("RFRA"). RFRA prohibits government action that "substantially burdens" the exercise of religion if the government cannot establish that its actions are the least restrictive means to further a compelling interest.
University of Colorado School of Law and Center of the American West
33rd Annual Indian Law Conference
On February 26, 2008, the Navajo Nation Council enacted the Navajo Nation Comprehensive Environmental Response Compensation and Liability Act (the “Navajo Superfund Law” or “NSL”). The NSL purports to apply to non-Indians and non-members for activity on the Navajo Nation reservation and for all off-reservation activities within Navajo Indian Country.
Twenty-six Davis Graham & Stubbs attorneys practicing in 28 fields will be recognized in the 2007 edition of The Best Lawyers in America. The number of DGS lawyers recognized in the definitive guide to legal excellence increased by five this year, and represents more than 40% of DGS partners overall. DGS ranks first in the number of Colorado-based attorneys listed by the 2007 edition of Best Lawyers in the Commercial Litigation, Natural Resources, Environmental Law, Securities Law and Corporate Governance and Compliance Law practice areas.
Rocky Mountain Mineral Law Institute Special Institute: Natural Resource Development in Indian Country
Title V of the Energy Policy Act of 2005 concerns Indian energy. The short title of Title V is “Indian Tribal Energy Development and Self-Determination Act of 2005.” Congress, in choosing this short title, expressed the twin goals of Title V: to encourage the efficient development of energy minerals on tribal lands and to promote tribal self-determination, at least in the context of energy development. These two goals are not mutually exclusive, although neither are they co-extensive. The heart of Title V of the Energy Policy Act – the use of tribal energy resource agreements – provides a real opportunity to achieve both goals.
A miner with operations on an Indian Reservation knows that there can be considerable confusion concerning which agency regulates its activities. State, tribal, and federal agencies might each regulate some aspect of mine operations. Those issues are especially acute when operations are conducted on fee land within the boundaries of a reservation. The Supreme Court issued a decision in May of last year, Atkinson Trading Company v. Shirley, that limits the scope of tribal jurisdiction over such fee lands. 532 U.S. 645 (2001).