A right-of-way over or across individually owned Indian land must require compensation of not less than fair market value, unless paragraph (b) or (c) of this section permit a lesser amount. Compensation may also include additional fees, including but not limited to throughput fees, severance damages, franchise fees, avoidance value, bonuses, or other factors. Compensation may be based on a fixed amount, a percentage of the projected income, or some other method. The grant must establish how the fixed amount, percentage, or combination will be calculated and the frequency at which the payments will be made.
We may approve a right-of-way over or across individually owned Indian land that provides for nominal compensation, or compensation less than a fair market value, if:
The grantee is a utility cooperative and is providing a direct benefit to the Indian land; or
The grantee is a tribal utility; or
The individual Indian landowners execute a written waiver of the right to receive fair market value and we determine it is in the individual Indian landowners' best interest, based on factors including, but not limited to:
The grantee is a member of the immediate family, as defined in § 169.2, of an individual Indian landowner;
The grantee is a co-owner in the affected tract;
A special relationship or circumstances exist that we believe warrant approval of the right-of-way; or
We have waived the requirement for a valuation under paragraph (d) of this section.
We will require a valuation to determine fair market value, unless:
100 percent of the individual Indian landowners submit to us a written request to waive the valuation requirement; or
We waive the requirement under paragraph (d) of this section.
The grant must provide that the non-consenting individual Indian landowners, and those on whose behalf we have consented under § 169.108(c), or granted the right-of-way without consent under § 169.107(b), receive fair market value, as determined by a valuation, unless:
The grantee is a utility cooperative and is providing a direct benefit to the Indian land; or
The grantee is a tribal utility; or
We waive the requirement because the tribe or grantee will construct infrastructure improvements benefitting the individual Indian landowners, and we determine in writing that the waiver is in the best interest of all the landowners.
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