The CPUC Initiates Rulemaking Proceeding to Review the Tribal Land Transfer Policy Guidelines

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By Riley Minkoff

On February 10, 2022, the California Public Utilities Commission (CPUC) issued an Order Instituting Rulemaking (OIR) (R.22-02-002) to consider revisions to the Commission’s Tribal Land Transfer Policy (TLTP) Implementation Guidelines. According to the OIR, the TLTP was developed to provide an opportunity for Native American Tribes to regain lands within their ancestral territory that are currently owned by Commission jurisdictional utilities. The Commission originally adopted the guidelines on January 14, 2021, along with Resolution E-5076, which ordered that, within two years of approval, the commission would initiate a rulemaking proceeding to consider revisions to the TLTP guidelines.

The guidelines recognize that Resolution E-5076, when Investor Owned Utilities (IOUs), which the Commission regulates, own land located within Tribal ancestral territories, and encourages consultation and cooperation with Tribal governments to protect Tribal sacred places and cultural resources of historical, spiritual, and ceremonial importance to Tribes.  The guidelines also set forth a series of policies that apply when IOUs seek to dispose of real property involving Tribal ancestral territories, including the promotion of Tribal ownership and access, returning the land to the Tribes for conservation, economic, and social purposes.  Specifically, pursuant to section 851 of the Public Utilities Code, the TLTP Guidelines provide that IOUs should take affirmative steps to determine whether any California Native American Tribes are interested in purchasing the property, and give California Native American Tribes a right of first offer on the property before placing the on the open market.

R.22-02-002 considers revisions to the TLTP Guidelines, such as: reviewing and updating requirements set out in the TLTP Implementation Guidelines; assessing data laid out in the TLTP Guidelines; identifying capacity building needs; and reviewing and updating the Tribal Consultation Policy. At this time, the CPUC is still in the process of taking public comment and initiating tribal consultation meetings. There are many more steps that need to be taken before a proposed decision will be placed on the CPUC’s agenda for a vote. The CPUC must hold a prehearing conference, issue a scoping memo, and hold a workshop and tribal consultation on commission programs and proceedings, among other events. The Commission must also work through tribal participation in Commission proceedings and processes, the Tribal Consultation Policy, and the TLTP Implementation Guidelines before they issue a final proposed decision.

The TLTP was developed from June 2019 through October 2019 and was formally adopted by the Commission on December 5, 2019. The TLTP provides an opportunity for Native American Tribes to regain lands within their ancestral territory that are currently owned by CPUC jurisdictional utilities. On September 19, 2011, Governor Brown issued Executive Order B-10-11, which committed California to strengthening and sustaining effective relationships between the State and the Tribes by identifying areas of mutual concern and working to develop partnerships and consensus. On June 18, 2019, Governor Newsom reaffirmed Governor Brown’s Order with Executive Order N-15-19.

This rulemaking proceeding, according to the OIR, is intended to further recognize and respect Tribal sovereignty and to prioritize the return of aboriginal lands to their rightful Tribal ownership. The OIR incorporates specific plans to consider the CPUC’s Tribal Consultation Policy and mechanisms to enhance participation by Tribes in the CPUC’s proceedings. Because of this goal, in the later stages of the rulemaking, the CPUC plans to conduct outreach and consult with California Tribes to seek input on the appropriate scope of the proceeding. The CPUC is currently accepting public comments on the proceeding.

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