1.This Act may be cited as the
Soledad Canyon High Desert, California
Public Lands Conservation and Management Act of
2009
.
2.
(a)The
Congress finds the following:
(1)
(A)Two valid Federal
contracts, privately held, numbered CA–20139 and CA–22901, and issued under the
Materials Act of 1947, authorize extraction of approximately 56,000,000 tons of
sand and gravel from the Federal mineral estate in lands located in Soledad
Canyon adjacent to the City of Santa Clarita, California.
(B)It is in the best
interest of the citizens of California and the Federal Government to cancel the
Contracts and prohibit future mining in the area that was subject to the two
Federal Contracts in the Soledad Canyon area of California.
(C)The holder of the
Contracts should receive, as compensation for such cancellation, the fair
market value of the Contracts and all costs, fees, and covered liabilities
incurred by the Contract Holder in good faith in its efforts to develop the
Contracts.
(D)A site-specific
solution that is fair to the Contract Holder and that seeks to protect the
environment and minimize impacts on local transportation systems is in the best
interest of the Nation.
(E)Considerable sums
of money have been expended by the Contract Holder and the City of Santa
Clarita on legal and other services in trying to ensure their interests are
protected with respect to the Contracts CA–20139 and CA–22901.
(F)Facilitation of an
open-space corridor between the two arms of the Angeles National Forest that
enhances environmental and wildlife values is in the national interest.
(2)
(A)The Bureau of Land
Management has extensive land ownership in small and large parcels interspersed
with or adjacent to private land in and around Victorville, California, making
many of these parcels difficult to manage and appropriate for disposal.
(B)Certain public
lands near Victorville, California, have been previously identified for
disposal as a result of the Bureau of Land Management’s West Mojave Land
Management Plan which was approved in 2006 with public involvement and
participation.
(C)In order to
promote responsible and orderly economic development, certain public lands
should be sold at fair market value to the City of Victorville or the County of
San Bernardino; both located in California.
(b)The
purposes of this Act are the following:
(1)To provide to the
Bureau of Land Management the authority to cancel Contracts CA–20139 and
CA–22901 and prohibit future mining in the area that was subject to the two
Federal Contracts in the Soledad Canyon area of California.
(2)To provide a means
for the Contract Holder to recover for the cancellation of the Contracts, the
fair market value of the Contracts and the Contract Holder’s expenditures and
covered liabilities incurred pursuing the development of the Contracts.
(3)To provide the
Bureau of Land Management tools to verify expenses incurred by the Contract
Holder and provide relief.
(4)To provide
timelines for the verification of costs incurred by the Contract Holder and the
determination of compensation and to provide a dispute resolution
process.
(5)To
provide for the orderly disposal of certain Federal lands in San Bernardino
County, California, and to provide for the acquisition of environmentally
sensitive lands in the State of California.
3.In this Act:
(1)The term City of Santa Clarita means the
City of Santa Clarita, California.
(2)The term City of Victorville means the
City of Victorville, California.
(3)The term County of San Bernardino means
the County of San Bernardino, California.
(4)The
term Contracts means the Bureau of Land Management mineral
contracts numbered CA–20139 and CA–22901.
(5)The term Contract Holder means the private
party to the Contracts CA–20139 and CA–22901, and its successors that hold
legal interests in such Contracts.
(6)The term covered liabilities includes
any court-ordered or court-approved payment, settlement, or other liability on
the part of the Contract Holder for damages, costs, compensation, or
reimbursement to any third party for agreements entered into by the Contract
Holder in good faith prior to January 1, 2008, in order to exercise rights
under the Contracts.
(7)Environmentally
sensitive landThe term environmentally sensitive
land means land or an interest in land, the acquisition of which by the
United States would, in the judgment of the Secretary or the Secretary of
Agriculture—
(A)promote the
preservation of natural, scientific, aesthetic, historical, cultural,
watershed, wildlife, and other values contributing to public enjoyment and
biological diversity;
(B)enhance
recreational opportunities and public access;
(C)provide the
opportunity to achieve better management of public land through consolidation
of Federal ownership; or
(D)otherwise serve
the public interest.
(8)The term Materials Act of 1947 means the Act of
July 31, 1947 (chapter 406; 61 Stat. 681; 30 U.S.C. 601–604).
(9)The
term Secretary means the Secretary of the Interior.
(10)The term special account means the account
in the Treasury of the United States established under subsection 5(i).
4.Cancellation of
the contracts; compensation to contract holder
(a)The Secretary shall cancel Bureau of Land
Management mineral Contracts CA–20139 and CA–22901 and withdraw those areas
that were subject to the Contracts from further mineral entry under all mineral
leasing and sales authorities available to the Secretary, effective on the date
of the enactment of this Act.
(b)As
compensation for the cancellation of the Contracts, the Contract Holder shall
receive the following amounts, whether determined by agreed negotiated value or
awarded by judgment of the United States Court of Federal Claims in accordance
with the referral provisions of subsection (g)—
(1)the fair market
value of the cancelled Contracts, determined in accordance with subsection (e);
(2)the Contract
Holder’s expenditures in trying to bring the Contracts into commercial
production, as described in subsection (f);
(3)interest on the
compensation provided for in paragraphs (1), (2), and (4) from the date of the
enactment of this Act until the last day of the month preceding the date on
which payment is made, compounded quarterly and computed at the rate applicable
to marketable obligations of the United States of three year maturity for the
period involved; and
(4)covered
liabilities incurred in trying to bring the Contracts into commercial
production, as described in subsection (f); provided, however, that
compensation for covered liabilities may be paid to Contract Holder under this
section for up to 15 years following the effective date of this Act.
(c)Means of
payment; assurances of payment
(1)The full faith and credit of the United States is hereby
pledged to the payment of the compensation provided for in subsection
(b).
(2)Compensation paid to Contract Holder under this Act shall
be paid by means of disbursement of funds from the special account created in
the Treasury of the United States pursuant to section 5(i) except as otherwise
provided in paragraph (3);
(3)Notwithstanding paragraph (2) or any other provision of
this Act, in the event that the Contract Holder has not received all of the
compensation provided for in this section on or before the third anniversary of
the enactment of this Act, all compensation then remaining to be paid to
Contract Holder shall be paid from the permanent judgment appropriation
established pursuant to section 1304 of title 31, United States Code.
(4)Any negotiated
agreement between the Secretary and the Contract Holder as to the amount of
compensation described in subsection (b) shall be deemed to be a compromise
settlement of imminent litigation within the meaning of section 1304 of title
31, United States Code, and section 2414 of title 28, United States Code, and,
notwithstanding anything to the contrary contained in any other provision of
law, including section 2517 of title 28, United States Code,any final judgment
by the United States Court of Federal Claims determining the fair market value
of Contracts CA–20139 and CA–22901 in accordance with the referral provisions
of subsection (g) shall be deemed to be a final judgment and award within the
meaning of section 1304 of title 31, United States Code.
(d)Increase in
adjusted basis of contract upon cancellationFor purposes of the
Internal Revenue Code of 1986, the adjusted basis of any Contract to which
subsection (a) applies shall be increased (immediately before the cancellation
of such Contract under such section) by the excess (if any) of—
(1)the fair market
value of such Contract (determined immediately before such cancellation),
over
(2)the adjusted basis
of such Contract (as determined immediately before the application of this
section).
(e)Determination of
fair market valueThe Secretary shall, within six months after
the date of enactment of this Act, determine by mineral appraisal, utilizing
the discounted cash flow method of appraisal (in accordance with the appraisal
guidelines for appraisals of large quantities of mineral materials contained in
section IV(E) of BLM Mineral Material Appraisal Handbook H–3630), the fair
market value of the Contracts and notify the Contract Holder of those
determinations. In determining the fair market value of the Contracts, the
Secretary shall assume that—
(1)the Contract Holder has obtained all the
permits and entitlements necessary to mine, produce, and sell sand and gravel
under the Contract; and
(2)mining operations
under the Contract have commenced at the time of the determination, with
maximum annual production volumes that—
(A)are based on the
projected supply and demand outlook at the time of determination; and
(B)reflect depletion
of the reserves that are subject to the Contract within the effective periods
of the Contract.
(f)Expenditures and
covered liabilities describedThe compensation provided for in
subsection (b)(2) is equal to the sum of the following:
(1)All amounts paid to the United States by
Contract Holder with respect to the cancelled Contract as bonus bids or other
prepayments.
(2)Interest on
amounts referred to in paragraph (1), from the date of payment of such amounts
to the United States, at a rate determined by the Secretary.
(3)Amounts expended
by the Contract Holder in securing the Contract and trying to bring it into
production, including—
(A)all actual costs,
including fees, associated with the engineering and environmental studies and
permitting proceedings that were incurred in good faith in the Contract
Holder’s efforts to exercise rights granted under the Contract terms;
and
(B)all actual legal
costs, including fees and covered liabilities, incurred in good faith in the
Contract Holder’s efforts to exercise rights granted in the Contract including
all fees and costs associated with securing permits and entitlements,
litigation to compel, secure, or defend permits or entitlements, and litigation
in connection with disputes relating to mineral and surface estate rights to
the property that is the subject of the Contract.
(g)Referral to the
United States Court of Federal Claims
(1)If
within 12 months after the date of enactment of this Act, the Secretary and the
Contract Holder do not reach agreed negotiated value under subsection (b)
regarding the fair market value of Contracts CA–20139 and CA–22901, the
Contract Holder shall have 3 months thereafter to notify the Secretary that it
disagrees with the Secretary’s determination of such value. In the event of
such notification, the Secretary shall refer the issue of fair market value to
the United States Court of Federal Claims for determination.
(2)In any referral under this subsection, the court shall
determine de novo the fair market value of Contracts CA–20139 and
CA–22901.
(h)Submission of
expenses incurred
(1)To assist in the verification of the amounts expended
referred to in subsection (f)(3), the Contract Holder shall submit to the
Secretary within 60 days after the date of enactment of this Act an itemized
list of such amounts, with enough detail and supporting documentation so the
Secretary can determine that the expenses are associated with the
Contracts.
(2)The
Secretary shall issue the determination of the amounts expended referred to in
paragraph (f)(3) within 60 days after receipt of the itemized list required
under paragraph (1). If the Secretary disapproves such list, the Secretary
shall, upon the request of the Contract Holder, determine such amounts through
arbitration in accordance with subchapter IV of chapter 5 of title 5, United
States Code.
(i)The
Contract Holder may at any time assign its rights or entitlement under this Act
to all or any part of the compensation provided for in paragraphs (1) and (2)
of subsection (b).
5.Sale of lands
near Victorville, California
(a)Notwithstanding the
land use planning requirements of sections 202 and 203 and the other provisions
of section 203 of the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1712 and 1713), and subject to subsections (b), (c), and (d), the Secretary
shall offer for sale by competitive bidding, for a minimum price not less than
fair market value as determined by appraisal by the Secretary under subsection
(h), all right, title and interest of the United States in and to those lands
identified for disposition on the map entitled Victorville disposal
area, California
dated December 2009. The Secretary shall keep such map
on file and available for public inspection in the offices of the Director of
the Bureau of Land Management and in the district office of the Bureau located
in Barstow, California.
(b)Pre-Emptive
right of the City of Victorville To purchase Area A landsPrior to any sale of any of the right,
title, and interest of the United States as provided in subsection (a), the
Secretary shall provide the City of Victorville, California, with the primary
pre-emptive right to purchase some or all of such right, title, and interest in
and to the lands identified as Area A on the map referred to in subsection (a).
The terms of such pre-emptive right shall afford the City of Victorville a
period of 30 days prior to any phased sale to be conducted under subsection (g)
in which the City may purchase some or all of the right, title, and interest of
the United States, as provided in subsection (a), then to be offered for sale
at its fair market value as determined by appraisal by the Secretary under
subsection (h), by paying to the Secretary in immediately available funds the
entire purchase price of the right, title, and interest so purchased by the
City. Such period shall commence on the 60th day prior to any phased sale to be
conducted under subsection (g), and shall end on the 31st day prior to any such
sale. Failure by the City of Victorville to purchase and pay for such right,
title, and interest, and to comply with such other terms and conditions of
purchase as the Secretary shall prescribe, within such period shall terminate
the pre-emptive right of the City of Victorville with respect to the right,
title, and interest then offered, but shall not terminate such pre-emptive
right with respect to subsequent phased offers of the remaining right, title,
and interest identified on the map referred to in subsection (a).
(c)Pre-Emptive
rights of the County of San Bernardino To purchase Area A lands and Area B
landsPrior to any sale of
any of the right, title, and interest of the United States as provided in
subsection (a), and after providing the City of Victorville the right to
purchase under subsection (b), the Secretary shall provide the County of San
Bernardino with the secondary pre-emptive right to purchase some or all of such
right, title, and interest in and to the lands identified as Area A on the map
referred to in subsection (a), and the exclusive preemptive right to purchase
all such right, title, and interest in and to the lands identified as Area B on
the map referred to in subsection (a). The terms of such pre-emptive rights
shall afford the County of San Bernardino rights with respect to such lands
identified as Area A and lands identified as Area B that are substantially
similar to the pre-emptive right afforded under subsection (b).
(d)Right of local
land use authority To purchase Area C landsPrior to any sale of any of the right,
title, and interest of the United States as provided in subsection (a), the
Secretary shall provide the local land use authority with respect to the lands
identified as Area C on the map referred to in subsection (a), as determined
under the statutes of the State of California, the exclusive pre-emptive right
to purchase some or all of such right, title, and interest in and to such
lands. The terms of such pre-emptive right shall afford the local land use
authority rights with respect to such lands identified as Area C that are
substantially similar to the pre-emptive rights afforded under subsections (b)
and (c).
(e)Withdrawal and
reservationSubject to valid
existing rights, the minerals in all Federal lands identified in subsection (a)
for disposal are withdrawn from settlement, sale, location, or entry under the
public land laws, including the mining laws codified at chapter 2 of title 30,
United States Code, from leasing under the mineral leasing laws including those
codified at chapter 3A of title 30, United States Code, and disposals under the
Materials Act of 1947 (30 U.S.C. 601 et seq.). Any sale or other disposal of
such lands shall reserve to the United States all minerals in such lands,
together with the right to prospect for, mine, and remove such minerals.
(f)Before
initiating efforts to dispose of land under this section, the Secretary shall
consult with the City of Victorville, the County of San Bernardino, and surface
owners in the jurisdiction where the lands are located, on the potential impact
and other appropriate aspects of the disposal. Consultation under this
subsection is in addition to any other consultation required by law.
(g)
(1)The Secretary shall, not later than 12 months following the
enactment of this Act, offer for sale under subsection (a), subject to the
primary pre-emptive right of the City of Victorville under subsection (b) and
the secondary pre-emptive right of the County of San Bernardino under
subsection (c), those lands depicted as Area A on the map referred to in
subsection (a).
(2)The Secretary shall, not later than 24 months following the
enactment of this Act, offer for sale under subsection (a), subject to the
exclusive pre-emptive right of the County of San Bernardino, those lands
depicted as Area B on the map referred to in subsection (a).
(3)The Secretary shall,
not later than 24 months following the enactment of this Act, offer for sale
under subsection (a), subject to the pre-emptive right of the local land use
authority under subsection (d), those lands depicted as Area C on the map
referred to in subsection (a).
(4)The Secretary, after
consultations with the City of Victorville, may within 20 years following the
enactment of this Act, offer for sale under subsection (a) all the remaining
lands identified for disposal in West Mojave Land Management Plan of 2006,
except those lands depicted as Area of Critical Environmental
Concern
in the map referred to in subsection (a).
(5)Compliance with
environmental requirementsLand disposal activities of the
Secretary under this subsection shall be consistent with all applicable
environmental requirements.
(h)Determination of
fair market valueThe fair market value of the lands referred to
in subsection (g)(1) shall be based on an appraisal of the fair market value
thereof as of the date of the enactment of this Act which shall be completed
not later than 6 months after the date of the enactment of this Act. The fair
market value of the lands referred to in subsection (g)(2) shall be based on an
appraisal of the fair market value thereof as of that date that is
approximately 6 months prior to the related date of offer as set forth in
subsection (g)(2) and shall be completed not later than 6 months prior to the
related offer. The fair market value of the lands described in subsection
(g)(3) shall be based on an appraisal of each parcel offered for sale as of the
date of such offer and such appraisal shall be completed not less than 6 months
prior to the related offer.
(i)
(1)The gross proceeds of sales of land under subsection
(a) shall be deposited in a special account in the Treasury for use under
paragraph (2). Amounts in the special account shall be available to the
Secretary for purposes of subparagraphs (A) through (E) of paragraph (2) and to
the Secretary of Agriculture for purposes of subparagraphs (B) and (C) of
paragraph (2) without further appropriation and shall remain available until
disbursed.
(2)Proceeds from sales of lands described in subsection (a)
shall be disbursed by the Secretary in the following order of priority:
(A)As compensation to
the Contract Holder under section 4(b) for cancellation of the Contracts by the
Secretary.
(B)For the
acquisition of private in holdings and land interests in the Mojave National
Preserve.
(C)For the
acquisition of holdings and land interests from willing sellers contained
within the Conceptual Area Protection Plan as identified in the East Santa
Clarita Land Conservation Concept Plan and Implementation Strategy.
(D)For the
acquisition of environmentally sensitive land in the State of California in
accordance with section 6.
(E)For the
reimbursement of costs incurred by the California State Office and the Barstow
Field Office of the Bureau of Land Management for preparing for the conveyance
of land described in subsection (a) including surveys and appraisals,
compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321),
and, except as otherwise provided in subsection (a), compliance with sections
201 and 203 of the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1711, 1712).
(3)Limitation on
use other than for compensationNo funds may be expended under
this subsection for purposes of subparagraphs (B) through (E) of paragraph (2)
until the date all compensation has been paid to the Contract Holder for
cancellation of the Contracts by the Secretary.
(4)Special account
reserve for contract holder
(A)Limitation on
disbursementsNotwithstanding
paragraphs (2) and (3), funds in the special account referred to in paragraph
(1) may be expended for purposes set forth in subparagraphs (B) through (E) of
paragraph (2) after compensation has been paid to Contract Holder as provided
in paragraphs (1), (2), and (3) of section 4(b), but prior to the date
compensation required under section 4(b)(4) has been paid to Contract Holder,
if the agreed-upon amount referred to in subparagraph (B) of this paragraph is
held as a reserve for payment to Contract Holder under section 4(b)(4).
(B)For purposes of
calculating the reserve provided for in this paragraph, the value of the
compensation provided for in section 4(b)(4) is deemed to be such amount as is
agreed upon by the Secretary and the Contract Holder:
Provided, That such agreed-upon amount shall in no event be
less than 15 percent of the sum of the value of the elements of compensation
described in paragraphs (1) through (3) of section 4(b): Provided
further, That such agreement shall be made prior to the disbursement
of any funds from the special account for any matter other than compensation to
the Contract Holder. Nothing in this paragraph shall be construed to reduce the
amount of the compensation payable to the Contract Holder pursuant to section
4(b)(4).
(5)Investment of
special accountAny amounts deposited in the special account
shall earn interest in an amount determined by the Secretary of the Treasury on
the basis of the current average market yield on outstanding marketable
obligations of the United States with a maturity of three years and shall be
expended according to the provisions of this section.
(6)Except
with respect to the disbursement of funds as compensation to the Contract
Holder for cancellation of the Contracts, the Secretary shall coordinate the
use of the special account with the Secretary of Agriculture, the State of
California, local governments, and other interested persons, to ensure
accountability and demonstrated results.
6.
(a)After the consultation process has been completed in
accordance with subsection (b), the Secretary may acquire with the proceeds of
the special account referred to in section 5(a) environmentally sensitive land
and interests in environmentally sensitive land. Lands may not be acquired
under this section without the consent of the owner thereof. Funds made
available from the special account may be used for this purpose with any other
funds made available under any other provision of law.
(b)Before
initiating efforts to acquire land under this section, the Secretary or the
Secretary of Agriculture shall consult with the State of California and with
counties and cities affected by such acquisition, including appropriate
planning and regulatory agencies, and with other interested persons, concerning
the necessity of making the acquisition, the potential impacts on State and
local government, and other appropriate aspects of the acquisition.
Consultation under this subsection is in addition to any other consultation
required by law.
(c)On
acceptance of title by the United States, land and interests in land acquired
under this section that is within the boundaries of a unit of the National
Forest System, National Park System, National Wildlife Refuge System, National
Wild and Scenic Rivers System, National Trails System, National Wilderness
Preservation System, or any other system established by Act of Congress, or any
national conservation or national recreation area established by Act of
Congress—
(1)shall,
notwithstanding any other provision of law, become part of the unit or area
without further action by the Secretary or Secretary of Agriculture; and
(2)shall be managed
in accordance with all laws and regulations and land use plans applicable to
the unit or area.
(d)Determination of
fair market valueThe fair market value of land or an interest in
land to be acquired by the Secretary or the Secretary of Agriculture under this
section shall be determined under section 206 of the Federal Land Policy and
Management Act of 1976 (16 U.S.C. 1716) and shall be consistent with other
applicable requirements and standards.