[Senate Hearing 108-80]
[From the U.S. Government Publishing Office]
S. Hrg. 108-80
LAND EXCHANGE IN IDAHO; BUILDING AND LAND CONVEYANCE IN SANDPOINT, ID;
WASHOE INDIAN TRIBE TRUST; AMEND FEDERAL LAND POLICY AND MANAGEMENT
ACT; AND LAND EXCHANGE IN COCONINO AND TONTO NATIONAL FORESTS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
on
S. 434 H.R. 622
S. 4 H.R. 762
S. 490
__________
JUNE 12, 2003
Printed for the use of the
Committee on Energy and Natural Resources
______
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WASHINGTON : 2003
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee RON WYDEN, Oregon
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana EVAN BAYH, Indiana
GORDON SMITH, Oregon DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky CHARLES E. SCHUMER, New York
JON KYL, Arizona MARIA CANTWELL, Washington
Alex Flint, Staff Director
James P. Beirne, Chief Counsel
Robert M. Simon, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
------
Subcommittee on Public Lands and Forests
LARRY E. CRAIG, Idaho, Chairman
CONRAD BURNS, Montana, Vice Chairmaa
GORDON SMITH, Oregon RON WYDEN, Oregon
JON KYL, Arizona DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
LAMAR ALEXANDER, Tennessee TIM JOHNSON, South Dakota
LISA MURKOWSKI, Alaska MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri EVAN BAYH, Indiana
DIANNE FEINSTEIN, California
Pete V. Domenici and Jeff Bingaman are Ex Officio Members of the
Subcommittee
Frank Gladics, Professional Staff Member
Kira Finkler, Democratic Council
C O N T E N T S
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STATEMENTS
Page
Craig, Hon. Larry E., U.S. Senator from Idaho.................... 1
Ferguson, Jerrell, Diamond Point Summer Homes Association........ 9
Kyl, Hon. Jon, U.S. Senator from Arizona......................... 9
Reid, Hon. Harry, U.S. Senator from Nevada....................... 8
Thompson, Tom, Deputy Chief, National Forest Systems, Department
of Agriculture................................................. 2
Thomas, Hon. Craig, U.S. Senator from Wyoming.................... 10
APPENDIXES
Appendix I
Responses to additional questions................................ 13
Appendix II
Additional material submitted for the record..................... 15
LAND EXCHANGE IN IDAHO; BUILDING AND LAND CONVEYANCE IN SANDPOINT, ID;
WASHOE INDIAN TRIBE TRUST; AMEND FEDERAL LAND POLICY AND MANAGEMENT
ACT; AND LAND EXCHANGE IN COCONINO AND TONTO NATIONAL FORESTS
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THURSDAY, JUNE 12, 2003
U.S. Senate,
Subcommittee on Public Lands and Forests,
Committee on Energy and Natural Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:44 p.m. in
room SD-366, Dirksen Senate Office Building, Hon. Larry E.
Craig presiding.
OPENING STATEMENT OF HON. LARRY E. CRAIG,
U.S. SENATOR FROM IDAHO
Senator Craig. Good afternoon, everyone. The Subcommittee
on Public Lands and Forests of the full Energy and Natural
Resources Committee of the U.S. Senate will be convened. I
apologize for running a little late. The floor called a vote on
us right at 2:30, so our timing has slipped a little bit. But
anyway, again thank you all for being here.
I do not know whether my ranking member, Senator Wyden,
will be able to attend. I saw him in the hall and he said: ``Do
you need me?'' It sounded like he had another schedule that had
him committed.
But anyway, I want to welcome the Deputy Chief of the
National Forest Service, Tom Thompson, who is here to testify
on behalf of both the Forest Service and the Bureau of Land
Management on five bills that we will consider today. I believe
these bills will be noncontroversial. Thus, I hope to move
through the hearing with an unusual thing here in the Senate,
deliberate speed.
I have two Idaho proposals that we will consider today. The
first is S. 434, the Idaho Panhandle National Forest
Improvement Act for 2003. It is an opportunity to provide land
for local benefits and to meet the facility needs of the Forest
Service in the Silver Valley of Idaho. This bill will offer for
sale or exchange administrative parcels of land in the Idaho
Panhandle National Forest that the Forest Service has
identified as no longer in the interests of public ownership
and that disposing of them will serve the public interest. The
proceeds from these sales will be used to improve or replace
the Forest Service ranger station in Idaho's Silver Valley.
The second is S. 435, the Sandpoint Land and Facilities Act
of 2003. It is a unique opportunity to meet the facility needs
of the Forest Service in Sandpoint, Idaho, and to provide
facilities for local county government. This bill will transfer
ownership of the local General Services Administration
building, which is currently housing the Forest Service, to
that agency. The bill also provides authority for the Forest
Service to work with Bonner County, Idaho, in exchange of
existing buildings to Bonner County in exchange for a new and
more functional building for the Forest Service.
This transfer of ownership will not only provide the
opportunity for the local Forest Service office to obtain a
facility that best meets their needs, but also will meet the
facility needs of Bonner County.
Both of these bills are a win-win situation for the Forest
Service and the community and are outstanding examples of the
Federal Government at the local level working with the
communities to create common sense solutions that result in
more efficient operations and better service to the public.
As with our last hearing, we are considering a number of
bills that were passed by the U.S. House of Representatives or
the Senate in the 107th session of Congress. H.R. 762 is
Congresswoman Barbara Cubin's bill to amend the Federal Land
Policy and Management Act of 1976 and the Mineral Leasing Act
dealing with leasing right of ways, and H.R. 622, Congressman
Renzi's proposal to exchange certain lands in the Coconino and
Tonto National Forests in Arizona, have been through the House
process twice, so we will try not to put them through that
again.
Likewise, S. 490, Senator Reid and Senator Ensign's bill to
direct the Secretary of Agriculture to convey certain lands in
the Lake Tahoe Basin Management Unit Nevada to the Secretary of
the Interior, to be held in trust for the Washoe Indian Tribe
of Nevada and California. This bill was passed by both bodies
in the last session.
We know of no major concerns with any of these five bills.
With that and no other Senators attending at this time, we will
recognize our Deputy Chief for testimony on these pieces of
legislation. Tom, welcome to the committee.
STATEMENT OF TOM THOMPSON, DEPUTY CHIEF, NATIONAL FOREST
SYSTEMS, DEPARTMENT OF AGRICULTURE
Mr. Thompson. Thank you. Mr. Chairman, thank you for this
opportunity to appear before you this afternoon. I am Tom
Thompson, Deputy Chief of the National Forest System. I am here
to provide the Department's comments on these five bills. The
Department supports S. 434 and H.R. 622. The Department does
not oppose H.R. 762 with some changes. The Department has some
concerns with S. 490 and would like to work with the committee
to address those concerns.
Let me start with H.R. 622, the Tonto and Coconino National
Forests Land Exchange Act. H.R. 622 directs the Secretary to
exchange 108 acres of National Forest System land within the
Tonto National Forest northeast of Payson, Arizona, and
currently occupied by 45 residential cabins under special use
permits. We would exchange that for 495 acres of non-Federal
land known as the Q Ranch within the Tonto National Forest east
of Young, Arizona. This exchange is identified in the bill as
``Diamond Point-Q Ranch Land Exchange.''
The bill also directs the Secretary to exchange
approximately 222 acres of National Forest System land within
the Tonto adjacent to the town of Payson near the municipal
airport for 157 acres of private land owned by the Montezuma
Castle Land Exchange Joint Venture which is adjacent to the
Montezuma Castle National Monument and nearly 108 acres of
private land known as the Double Cabin Parklands. Both of these
private parcels are within the Coconino National Forest
boundary.
H.R. 622 requires that the values of the non-Federal and
Federal lands be exchanged on equal or equalized, as determined
by the Secretary through our appraisal by a qualified appraiser
and performed in conformance with the uniform standards for
Federal land acquisitions and the Federal Land Policy and
Management Act of 1976.
The bill requires that the Secretary execute the Montezuma
Castle and Diamond Point land exchanges within six months after
receipt of an offer from the private landowners unless the
Secretary and private landowners mutually agree to extend such
deadline.
The Department supports the concept of exchanging National
Forest System lands which were identified in H.R. 622. However,
we would like to work with the committee to clarify and make
sure that the priorities for deleting the Federal properties
from exchange--to ensure that the priorities that we have are
the ones that should be there, so that if potential parcels are
not exchanged, that we have manageable ownership boundaries
after the exchange is completed.
Let me move to H.R. 762, which provides for continued
predictability and inter-agency consistency and efficiency in
determining rental fees for linear rights of way uses
authorized by the Forest Service and the Bureau of Land
Management on Federal lands which they administer. It would
apply to right of ways authorizations for linear facilities,
including oil and gas pipelines, electric transmission lines,
telephone, fiber optic communication lines, water lines, and
roads.
The Mineral Leasing Act of 1920 as amended and the Federal
Land Policy and Management Act of 1976 as amended direct that
the holder of a permit of the right of way pay fair or market
value of the right of way use to the United States, as
determined by the appropriate Secretary who grants or issues
the right of way. The Secretary's discretion to determine the
manner in which the market value is established has often been
the subject of dispute and contention. In an April 11, 2002,
hearing on the House Resources Committee on National Parks,
Recreation, and Public Lands on a previous version of the bill,
Peter Culp, the Assistant Director for the Bureau of Land
Management, testified that the Department of the Interior was
committed to ensuring that these right of way rental fees for
the use of Federal land managed by the BLM are appropriate and
fair and that rates for such rental fees were predictable and
certain.
He further testified that the current land-based fee rates
for linear right of way facilities can continue to be an
appropriate basis for derivation of right of way rental fee,
with periodic adjustments for inflation.
H.R. 762 as presently written would give the Secretaries
one year after the date of its enactment to make such changes
through administrative procedures needed to revise the
regulations and the agency policy. Based on our experience with
such procedures, we would recommend that we would be provided
at least 2 years following the date of enactment for the
respective Secretaries to complete those regulatory and policy
changes.
The Department of Justice has also advised us of its
concern with the characterization of the fee schedule as ``fair
market rental value'' in the heading of section 2 and ``fair
market value'' in new paragraph K, and recommends that these
descriptions be changed. ``Fair market value'' and ``rental
value'' are terms of art within both the appraisal profession
and case law and the bill should not confuse the two terms. Any
market value determination of value requires an analysis of
what is happening in the marketplace as opposed to
establishment of a fee schedule as provided in H.R. 762.
While H.R. 762 is generally consistent with our agency's
current plans to update our linear fee schedules, it would
constrain future agency options in a way that may be
undesirable. For example, there may be limited cases where a
site-specific evaluation may be more appropriate than the use
of a fee schedule.
However, we recognize the passage of this bill would
provide greater stability and reduce the amount of uncertainty
felt by permit holders, while generally providing a reasonable
rental fee for these linear uses of the Federal lands.
Therefore, with the adoption of the earlier recommendations, we
would not oppose enactment of this bill.
Let me move to S. 434, which is the Idaho Panhandle Forest
Improvement Act of 2003, which authorizes the Secretary of
Agriculture to sell or exchange all or parts of certain tracts
of National Forest System land in the State of Idaho and to use
the proceeds for acquisition of land and construction of a new
ranger station in the Silver Valley portion of Idaho Panhandle
National Forest.
To the extent that excess proceeds after construction of
the ranger district, the bill would allow the proceeds to be
used to acquire land, construct or rehabilitate other
facilities on the Idaho Panhandle.
The Department supports S. 432 because the tracts
identified for sale or exchange are no longer needed for Forest
Service administrative purposes and the conveyances of these
tracts would reduce long-term costs of administering related
special use permits. Additionally, the construction of a new
ranger station in Silver Valley would certainly enhance public
service and improve public safety.
As S. 434 illustrates, the Department has a number of
facilities and opportunities to be rid of land that is excess
to the agency needs. The fiscal year 2004 budget contains a
proposal for establishment of a Federal Acquisition and
Enhancement Fund that would enable the Secretary to sell such
units excess to the agency's need and utilize proceeds from
those sales for acquisition or development of land and
improvements for administrative purposes.
Funds collected under this authority would address backlogs
and administrative consolidations while improving efficiencies
through the reconstruction of functionally obsolete facilities
or construction of new facilities. To this end, the Department
will submit proposed legislation concerning this fund in the
upcoming weeks.
Let me move to S. 435, Sandpoint Land and Facilities
Conveyance of 2003. S. 435 directs the Administrator of the
General Services Administration to transfer to the Secretary of
Agriculture without reimbursement administrative jurisdiction
over the Sandpoint Federal Building and 3.17 acres of land in
Sandpoint, Idaho. The bill requires the Secretary to assume the
obligation of the Administrator to repay the Federal Finance
Bank the debt incurred with respect to the property.
S. 435 authorizes the Secretary to sell or exchange all
right, title, and interest of the Forest Service in and to the
property for market value, and exchange consideration may, if
elected by the Secretary, include the construction of
administrative facilities for the National Forest System in
Bonner County.
The bill requires the entity acquiring the property honor
all outstanding indebtedness on the property to the Federal
Finance Bank. Further, the Secretary can use proceeds from the
sale of the property only for the acquisition, construction, or
improvement of administrative facilities and associated land,
the acquisition of lands and interests in land for additional
National Forest System land in the northern region of the
Forest Service in Idaho.
The Forest Service has leased this facility from the
General Services Administration, the Sandpoint Federal
Building, for almost 30 years. The building is too large for
the combined Federal presence and steps should be taken to
address this problem.
Moving to S. 490, the Washoe Tribe Land Conveyance, S. 490
directs the Secretary of Agriculture to convey 24.3 acres of
National Forest System land within the Lake Tahoe Basin
Management Unit to the Secretary of the Interior, to be held in
trust for the Washoe Indian Tribe of Nevada and California. The
conveyance would be subject to a reservation of a non-exclusive
easement on the forest road to continue public and
administrative access to other National Forest System land. In
addition, the bill would grant vehicular access over a forest
road to the parcel by tribal members under certain
circumstances.
The transfer would occur without consideration. The
Department believes the bill would defeat public expectations
of continued access to this lakefront parcel. The Department
has concerns with S. 490 and would like to work with the
committee on alternatives that would meet tribal needs, as
discussed in our testimony. The Department understands and
appreciates fully the goals of the Washoe Tribe to acquire land
in Lake Tahoe Basin for the purpose of exercising recurring
exclusive use of the Lake Tahoe shorefront property for
traditional and cultural customary purposes.
The Forest Service has taken extensive actions to meet the
needs of the tribe within the limits of authority. At present
the Washoe Tribe holds a special use permit with the Forest
Service for uses described in section 1(b)(2). These uses have
been analyzed and approved through the Forest Service special
use permitting process and appear to meet the needs of the
tribe.
The 24.3 acre parcel identified in S. 490 for transfer to
the Department of the Interior was originally acquired by the
Forest Service as a part of a large purchase using funds
authorized with the Land and Water Conservation Fund to provide
public access to recreational resources on Lake Tahoe Basin.
Transfer of this parcel to the Department of the Interior
to be held in trust for exclusive use by the Washoe Tribe is
not consistent with the public purposes for which the land was
purchased. The Lake Tahoe Basin Management Unit has placed a
high priority on acquisition and retention of lakefront
property for public access and watershed protection. Any land
conveyance should be with consideration to ensure public
obtains market value. The Department also has concerns with the
reversionary interest identified in section 1(e)(2).
In lieu of transferring the parcel to the Secretary of the
Interior, the Department recommends the bill be amended to
authorize the Secretary of Agriculture, upon the tribe's
request, to close the parcel to general public use on a
temporary basis to protect the privacy of traditional and
customary uses, cultural uses, of the land by the tribe.
We note that the Congress has provided similar statutory
authority to the Secretary of the Interior in section 705(a) of
the California Desert Protection Act and section 50(c) of
Public Law 100-225, and to the Secretary of Agriculture under
section 2(d)(1) of Public Law U.S.C. 460(d)(1), an act that
established that Jemez National Recreational Area.
Additionally, to meet the tribe's goal of using the parcel
for cultural, horticultural, and ethnobotany purposes, the
provision could be added to the bill to authorize the Secretary
of Agriculture to ensure--or issue a permit to the Washoe Tribe
for these purposes. The Department believes that this approach
would accommodate both the goals of the Washoe Tribe and the
objective of maintaining public access to the parcel.
This concludes my statement. I would be happy to answer any
questions.
Senator Craig. Well, Tom, thank you very much. I have
several questions here, none of them in great length, but I
think points of clarification as we move to final action on
these pieces.
In S. 435, it has been my impression that the Forest
Service strongly supports this legislation. Is that true?
Mr. Thompson. We believe that the transfer would certainly
be beneficial.
Senator Craig. That is as good as it gets?
Mr. Thompson. That is where we have been as far--the
transfer would certainly be beneficial to the forest.
Senator Craig. Fine enough. We will take it at that.
In S. 490, I note that you now have a number of concerns.
In November 2001, Ms. Kimball, then Acting Associate Deputy
Chief, testified on S. 691--that is the same version in the
107th--that, and I quote, ``The administration has not
completed its review of S. 691. We plan to conduct a more
thorough review of the language over the next few weeks, to
consult with the Department of the Interior and explore
additional options. Once that review is completed, we would
like to work with the committee and the bill's sponsors to
resolve concerns that our review might identify.''
On June 28, 2002, 6 months later, we marked up S. 691 and
favorably reported the bill out of the committee.
Given the plans for the agency ``to work with the committee
and the sponsors to resolve concerns that our review might
identify,'' could you provide my staff with documentation of
when and who your staff communicated with regarding your
review? I need to know when you discussed your concerns with
the sponsors and when you discussed your concerns with the
Energy Committee staff. Can you have the documentation to the
staff by next Tuesday?
Mr. Thompson. I certainly think we could provide that
information. I have not got it with me, obviously.
Senator Craig. Okay, that would be appreciated.
On S. 762, the rights of way bill, why does it take so
long, 2 years? Is it a staffing problem? If so, how can we help
you?
Mr. Thompson. As I understand it, the biggest problem is
doing the market analysis and doing it with--the scope and the
scale of that, the time that it is going to take. That in
itself is going to use perhaps as much as a year. Then you have
got the regulations, the public comment, the evaluation, and
that would take it through a good chunk of that second year.
The market analysis is the big time-consumer.
Senator Craig. How many miles of rights of way are we
talking about here?
Mr. Thompson. Well, for the Forest Service, we have I think
20,000 of these types of right of ways.
Senator Craig. Total.
Mr. Thompson. Total, 20,000.
Senator Craig. But in this instance?
Mr. Thompson. Of that, there is about 105,000 miles.
Senator Craig. Total.
Mr. Thompson. Total. So it is not a small task. And of
course, looking at it across the entire United States, a lot of
different country, a lot of different analysis to do.
Senator Craig. Well, that is a daunting task. I do not
disagree with that. At the same time, oftentimes a failure to
perform when we know it is going to happen holds in abeyance
some tremendous economic activity out there as it relates to
the investment and people waiting under the general assumption
that these kinds of things are relatively routine once certain
priorities and values are established.
On S. 622, I note in your testimony that you have concern
about the priorities of deleting Federal properties from the
exchange to ensure that a manageable land ownership pattern
remains. I also understand that the language in the bill on the
priorities for deleting Federal properties was agreed to by the
Forest Service who was in place when the legislation was
developed and passed in the House in the last session.
Can you help me understand what has changed between last
year and this year regarding the issue, because it is my
understanding you wrote the language.
Mr. Thompson. I think, as I said, I think we just need to
work to make sure that we have the right order. I think there
is a little confusion as to whether it is or it is not, and it
is going to take a very little bit of time to straighten that
out. If we have the right order in there right now, we are very
comfortable with it. If it is out of order, I think it would be
good to make sure that it is right, and that is all that we are
saying.
Senator Craig. This is a message to be conveyed by you, not
specifically a question of you, Tom. On May 7, I sent a letter
to Chief Bosworth regarding an issue related to phosphate
mining leaseholders in southeastern Idaho. My office has been
inquiring on a weekly basis as to when I will receive response
to the letter. The issue is one of some time-sensitiveness for
the leaseholder involved, and I ask you to inquire into the
matter, if you would, as to when we might be able to get a
response to it.
Mr. Thompson. I can assure you that I will.
Senator Craig. And oh, by the way, I have a copy of it if
you are interested. Both Congressman Mike Simpson--it is in his
district--and I are concerned about this, and if we can get an
answer sooner rather than later, it would be greatly
appreciated.
Mr. Thompson. We will provide you an answer as to when we
can get it by tomorrow and certainly expedite everything we can
to get a reply.
Senator Craig. Super.
Senator Bingaman will be submitting questions for the
record. Also, for-the-record statements by Senator Harry Reid,
Senator John Kyl, and Senator Craig Thomas will become a part
of the record.
[The prepared statements of Senators Reid, Kyl, and Thomas
follow:]
Prepared Statement of Hon. Harry Reid, U.S. Senator From Nevada
Mr. Chairman, I want to thank you and the committee for holding
this important hearing today on the conveyance of 24.3 acres within the
Lake Tahoe Basin north of Skunk Harbor, Nevada, to the Washoe Tribe of
Nevada and California. This is not an expansive tract of land, but it
is of profound significance to the Washoe people. This bill is
supported and cosponsored by Senator Ensign.
In 1997, a diverse group of federal, state, and local government
leaders gathered at the Lake Tahoe Presidential Forum to consider the
challenges facing the extraordinary natural, recreational, and
ecological resources of the Lake Tahoe region and to discuss the future
of the Lake Tahoe basin. During that Forum, the participants made a
commitment to support the traditional and customary uses of the Lake
Tahoe basin by the Washoe Tribe--most importantly, to provide the Tribe
access to the shore of Lake Tahoe for cultural purposes. Lake Tahoe has
not only been a part of the civilization and culture of the Washoe
Tribe, it is fundamental to who the Washoe are as a people.
The ancestral homeland of the Washoe Tribe of Nevada and California
included an area of over 5,000 square miles in and around the Lake
Tahoe Basin. My bill conveys a small tract of land from the Lake Tahoe
Basin Management Unit of the U.S. Forest Service to the Secretary of
the Interior to be held in trust for the Tribe. The bill ensures that
members of the Tribe will have the opportunity to engage in their
traditional and customary cultural practices at the Lake in the future
as they have done in the past. This will help the tribe meet the needs
of spiritual renewal and general reunification of the Tribe with its
aboriginal lands--forever. The conveyance will promote the Tribe's
efforts in land and environmental stewardship in partnership with
local, state, and federal agencies to preserve and protect the
resources of the Lake for all generations.
Mr. Chairman, the purpose of the bill is clear: the conveyed land
will be available only for non-commercial tribal purposes. I would like
to explain the history behind the bill's ``no development'' clause.
This provision was added at the request of the Washoe Tribe to
guarantee that this land remains in its present unspoiled state for
traditional and customary cultural uses. Tribal elders have indicated
to me that these purposes could not be accomplished if the land were
commercially developed, so I am pleased to include a provision ensuring
that this land will remain in its natural state. It serves as a
testimonial to the tribe's integrity and to how important the return of
this land is to the Washoe people, and ensures that the conveyance will
be consistent with our ongoing efforts to save Lake Tahoe. The
collective wisdom of the Tribe represents a gold mine of historical
knowledge and natural understanding of the processes at work within the
basin, and their help is essential to achieving the goal of saving Lake
Tahoe. Indeed, one of the most compelling reasons to support this bill
is that the Washoe Tribe serves as such a powerful advocate for the
Lake.
Mr. Chairman, this is not a controversial bill. It passed the
Senate unanimously in 2000 and 2002, and passed the House with
unrelated amendments, but the two versions of the bill were not
reconciled and neither version became law. It is a good bill, and it is
the right thing to do. I hope that the third Congress is a charm and
that we make good on our important promise to the Washoe Tribe.
______
Prepared Statement of Hon. Jon Kyl, U.S. Senator From Arizona
Mr. Chairman, H.R. 622, ``To provide for the exchange of certain
lands in the Coconino and Tonto National Forests in Arizona, and for
other purposes,'' directs that two land exchanges take place in the
Tonto and Coconino National Forests in Arizona: the Montezuma Castle/
Payson Airport Land Exchange and the Diamond Point Land Exchange.
The legislation authorizes the Forest Service to enter into equal-
value land swaps to acquire a 157-acre parcel of private land to
enhance and protect the Montezuma Castle National Monument, as well as
a 143-acre open meadow wildlife habitat known as Double Cabin Park.
Both parcels are in the Coconino National Forest.
In exchange, approximately 221 acres of national forest property
adjoining the Town of Payson municipal airport would be acquired.
The legislation also authorizes the Forest Service to acquire a
495-acre parcel known as the Q Ranch, which is currently owned by The
Conservation Fund. In exchange, the Diamond Point Summer Homes
Association will acquire 108 acres of federal land that has been
occupied by the association's 45 residential cabins since the 1950's.
The Tonto National Forest Plan specifically recommends conveyance
of the federal land.
This is common sense legislation that accomplishes goals that the
Forest Service has stated are a priority. The administrative process
has been very protracted, but the result is a plan that all parties see
as beneficial. I therefore look forward to this committee's hearing on
H.R. 622, and I ask that the statement of Jerrell Ferguson, a member of
the Diamond Point Summer Homes Association, be inserted in the record
at this point.
Statement of Jerrell Ferguson, Diamond Point Summer Homes Association
Mr. Chairman and Members of the Subcommittee: Thank you for the
opportunity to testify today. My name is Jerrell (``Jim'') Ferguson,
and I am a member of the Diamond Point Summer Homes Association. Our
association has 45 residential cabins currently permitted on federal
land within the Tonto National Forest east of Payson, Arizona.
diamond point land exchange
Over forty years ago, under a program to encourage public use of
the nation's forests, the U.S. Forest Service permitted our members to
build cabins on a parcel of National Forest land located near Diamond
Point. Like other similar ``recreation residences'', the 108-acre
parcel has no public access and is managed as if in private ownership,
with a number of roads, driveways, water systems, and other
improvements associated with the residences.
The Federal land was identified for disposal in the 1985 Tonto
National Forest Plan. We began discussing a land exchange with the
Forest Service in 1999. In November 2000, we proposed an exchange of
the 495-acre Q Ranch parcel for the Federal land underlying our
members' cabins. Because the Q Ranch acquisition was of such
significant public interest, and because the owner of the Ranch had
listed it for sale on the private market, The Conservation Fund, a
national leader in land protection, agreed to purchase the property and
option it to the Association for use in the land exchange. The Forest
Service confirmed that the Q Ranch was a very high priority for Federal
acquisition and encouraged us to proceed with the exchange proposal.
Since that time, we have paid for a land survey and a cultural
resources inventory of the Federal property. The Conservation Fund
spent over $2 million dollars of their limited resources on the Q
Ranch, anticipating the exchange would have been completed by now, and
thereby releasing their funds for further land protection work. We have
had numerous meetings with Forest Service representatives at all levels
and while their vocal support for the transaction remains strong,
almost no progress has been made in advancing the process. In fact, as
alluded to by Congressman Hayworth, in the seventeen months since our
first formal proposal to the Forest Service, four of our members have
died. Yet, the agency has still not executed the non-binding Agreement
to Initiate the exchange process.
The Federal land proposed for conveyance to the private sector is
already treated like private land and was specifically identified in
the Forest Plan for disposal. The Q Ranch acquisition represents the
third and final transaction necessary for the United States to acquire
a major inholding in the Tonto National Forest. The exchange proposal
has enjoyed broad support and literally no opposition. This exchange is
so clearly in the public interest, it is difficult to explain why the
Forest Service has been incapable of moving it forward under the
administrative process.
montezuma castle land exchange
Although I do not represent the private proponents of the Montezuma
Castle Land Exchange, I am prepared to speak on their behalf. Since the
mid-1990's, they have been frustrated in their efforts to complete a
straight-forward exchange with the Forest Service.
This land exchange was originally proposed to the Forest Service in
May 1994 and included a number of parcels of non-Federal land in
exchange Federal land within and around the Town of Payson. The Forest
Service had encouraged the acquisition of the private lands for the
exchange, including the Montezuma Castle and Double Cabin Park parcels.
However, the agency never authorized the documents required to initiate
an administrative exchange. The local landowners endured years of
frustration, and significant investment in cultural resources surveys,
valuation work and NEPA studies.
With the January 2000 encouragement of the former Tonto National
Forest Supervisor and the Town of Payson, the participants spent
additional funds to restructure and reduce the size of the exchange
proposal. However, with a change in Forest Supervisors, the agency then
abandoned the exchange, and the local investors were left holding
millions of dollars worth of land that the Forest Service had
encouraged them to purchase. The current Montezuma Castle Land Exchange
proposal involves approximately 222 acres of Federal land needed for
commercial and residential development within the Town of Payson.
The land at Montezuma Castle is critical to the Monument's views
shed, and includes important riparian habitat along Beaver Creek. The
land at Double Cabin Park includes a vast high meadow and wetlands that
provide important wildlife habitat. Congressman Hayworth's legislation
authorizes the Forest Service to transfer all or a portion of the
Montezuma Castle parcel to the National Park Service if deemed
appropriate by the Secretaries of the Interior and Agriculture. The
exchange is supported by the Town of Payson, the Gila County Board of
Supervisors, the Payson Regional Economic Development Group, the Rim
Country Regional Chamber of Commerce, and the National Park Service.
Mr. Chairman, that concludes my testimony, with one exception. I
want to once again personally thank Congressman Hayworth and you for
holding this hearing and hopefully passing legislation that will ensure
that highly desirable lands are secured for the public, while the
interests of private individuals and the Town of Payson are served.
______
Prepared Statement of Hon. Craig Thomas, U.S. Senator From Wyoming
Thank you, Mr. Chairman. I am here today to speak in support of
H.R. 762, a bill introduced by my colleague from Wyoming, Congresswoman
Barbara Cubin. H.R. 762 would amend the Federal Land Policy and
Management Act of 1976 and the Minerals Leasing Act to clarify the
method by which the Secretaries of the Interior and Agriculture
determine the fair market value of certain rights-of-way granted,
issued, or renewed, under these Acts.
Four years ago, the Bureau of Land Management and the U.S. Forest
Service abandoned the traditional linear fee rent method, where rent is
calculated based on the area of the right-of-way times the market value
of the land, and adopted a per line fee, sometimes referred to as
fiberent, based on the value of the throughput. As a result, federal
agencies charged a right-of-way fee for each strand of cable that went
down the pipe. As you can imagine, this fee structure caused a great
deal of concern because it had the potential to dramatically increase
fees by as much as 1,500 percent, and thereby discouraged deployment of
fiber optics to rural areas, like Wyoming, where the federal government
owns a significant amount of land.
Through rulemaking, we have worked to address these problems, yet
need to find a more permanent solution. H.R. 762 is that solution. This
bill ensures that rights-of-way fees are reasonable and will help
facilitate the deployment of critical infrastructure to areas that were
adversely affected by the previous fee system. This bill creates a
policy that protects the value of our federal lands, without altering
current environmental protections, and at the same time helps to ensure
that these federal lands continue to be available to a multitude of
compatible uses.
This is a good bill, for Wyoming, and for other States in the West
and I look forward to working with my colleagues in the Senate to pass
H.R. 762. Again, thank you, Mr. Chairman, for holding this hearing. I
look forward to hearing the Administration's views on this piece of
legislation.
Senator Craig. With that, Tom, we thank you very much. We
have tried to make this as painless as possible, and, while
this is not necessarily a record hearing, in light of the scope
and the magnitude of the legislation, it comes close time-wise.
Mr. Thompson. Thank you for this opportunity.
Senator Craig. Thank you very much. The subcommittee will
stand adjourned.
[Whereupon, at 3:09 p.m., the hearing was adjourned.]
APPENDIXES
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Appendix I
Responses to Additional Questions
----------
[Answers to the following questions were not received at
the time this hearing went to press.]
Answers to Questions From Senator Bingaman
s. 434--idaho panhandle forest improvement act
Question 1. Section 3(a)(3) authorizes the Secretary to sell or
exchange the Shoshone Work Camp. How many acres does this parcel
include?
Question 2. What is the approximate value of the three parcels that
the Secretary is authorized to convey in section 3(a)?
Question 3. Section 4(d) states that the Agriculture Property
Management Regulations shall not apply to any actions taken pursuant to
this Act. Why is this provision necessary?
s. 435--sandpoint land and facilities conveyance
Question 1. What is the value of the land, including the building,
conveyed by this bill?
Question 2. Section 2(b) requires the Secretary to assume an
obligation to repay debt. What is the amount of this obligation that
the Secretary will be required to repay?
Question 3. Section 3(e) states that ``Part 1955 of title 7, Code
of Federal Regulations'' shall not apply to any action carried out
under this section. Why is this provision necessary?
h.r. 762--reasonable rights-of-way fees act
Question 1. Section 2(a) of the bill amends the Federal Land Policy
and Management Act (FLPMA) to add a new section 504(k). That subsection
provides, in part, that the Secretary of the Interior shall amend the
pertinent regulations ``to revise the per acre rental fee zone value
schedule'' to reflect current values of land in each zone. Don't the
relevant regulations for the Department of the Interior and the
Department of Agriculture already reflect the current values of land?
If not, why not?
Question 2. Section 504(g) of FLPMA (43 U.S.C. 1764(g)) requires a
holder of a right-of-way to pay the fair market value, as determined by
the Secretary, for the use of the right-of-way. I understand that
several previous studies have found that both the Department of the
Interior and the Department of Agriculture have often failed to collect
the full fair market value for rights-of-way. Will the linear right-of-
way fee established in H.R. 762 likely result in a higher or lower fee
than the current FLPMA standard? (I'm interested in comparing the two
fee standards, not the amounts actually collected in the past).
Question 3. If your answer to question #2 is that the fee in H.R.
762 will likely result in lower fees than the fair market value
standard, then why is it in the best interests of the United States
government to charge a fee that is less than the fair market value of
the right-of-way?
Appendix II
Additional Material Submitted for the Record
----------
State of Washington,
Olympia, WA, June 11, 2003.
Hon. Larry E. Craig,
Chairman, Subcommittee on Public Lands and Forests, Senate Energy and
Natural Resources Committee, Washington, DC.
Re: Hearing of June 12, 2003 on H.R. 762, the Reasonable Right-of-Way
Fees Act
Dear Senator Larry Craig: As President of the Western States Land
Commissioners Association, I would appreciate your adding to hearing
record on H.R. 762 the concerns raised by the Western States Land
Commissioners Association in the attached letter, when our members
discussed the identical bill, H.R. 3258, at our conference last July.
Our main concern is that of institutionalizing below-market rates,
which affect both Federal and State revenues. We take as our point of
reference the Federal Land Policy and Management Act (FLPMA) Sec. 102
(a)(9), which established a policy that ``the United States receive
fair market value of the use of public lands and their resources . .
.''
In addition, as a Lands Commissioner, I would like you to consider
crafting a system that provides the following conditions:
1. A common system for BLM and the Forest Service, which is
currently the case.
2. Reviewing rates on an annual basis for areas that are known to
have rapidly changing market values. Rates for others might be reviewed
every 5 years at a minimum, based on spot checks and other economic
indicators. The current base was set in 1986 with an escalator that has
been roughly 1 to 2 percent per year since 1994 and has not exceeded
2.4 percent since that date. Spot checks could be done with appraisals,
surveying county assessors and by using data purchased from key
existing metropolitan real estate sales information systems.
3. Differentiating urban from rural base rates and escalators,
rather than averaging rates on a county-wide basis. Retain the current
linear rights-of-way provision that allows the agencies to use local
values, if they are significantly greater than the average county
values.
4. Using an intergovernmental, public-private committee of real
estate professionals similar to that used to establish the system for
BLM and Forest Service communications sites in November 1995 published
in 43 CFR 2803.1-2. A representative professional group could determine
whether a use or land surface value is more appropriate for each of the
affected linear uses.
5. Checking rates against market values by calling for a GAO report
3 to 4 years after enactment and periodically, perhaps every 5 years,
after that first report. An independent check is important to assure
that base rates are revised at appropriate intervals. Market data in
the Northwest showed that on a linear foot basis Forest Service fiber-
optic rates in the late 1990's were less than one cent versus fifty
cents to a dollar for comparables.
Thanks for your consideration.
Sincerely,
Doug Sutherland,
Washington State Commissioner of Public Lands.
______
Statement of the Telecommunications Right-of-Way Coalition
TelROW's members, including companies and trade associations in the
communications and energy sectors, operate a network of more than
100,000 miles of fiber-optic cable, and more than 700,000 miles of
electric transmission lines, across the United States. Some of this
critical infrastructure, especially in the west, crosses federal public
lands. The companies who formed this coalition were motivated by
several interim and proposed policies developed by the Bureau of Land
Management and U.S. Forest Service (see attachments).* We support H.R.
762 as a necessary amendment to the Federal Land Policy and Management
Act (FLPMA), to ensure a reasonable approach to collecting right-of-way
rents. H.R. 762 ensures that right-of-way rents are consistent with the
fair value of the right to cross federal lands, thus promoting sound
management of these public resources, and advancing the public's
interest in these lands.
---------------------------------------------------------------------------
* The attachments have been retained in subcommittee files.
---------------------------------------------------------------------------
TelROW appreciates the opportunity to provide written testimony to
the Subcommittee, as well as the efforts by the Subcommittee, the full
Committee, and its leadership in working with the Bureau of Land
Management and U.S. Forest Service to address concerns about the
original regulatory proposals that identified the need for this
legislation. While we believe that fee increases and changes in the
right-of-way valuation methodology were ill advised, we appreciate the
constructive efforts of the Bureau of Land Management and U.S. Forest
Service, in reaching out to stakeholder and professional groups like
the Appraisal Institute and TelROW, and in working with the House
Resources Committee and Representative Barbara Cubin to refine earlier
drafts of H.R. 762. We believe that passage of H.R. 762 will facilitate
the resolution of what has been a long, difficult process, and a source
of much uncertainty for federal land managers and those companies who
deploy and manage critical network infrastructure. Passage of H.R. 762,
as well as the continuation of efforts underway by federal land
managers and agencies to streamline and simplify the establishment and
management of linear rights-of-way, are important steps to protect and
facilitate critical network infrastructure, including pipelines,
powerlines, and communication facilities.
introduction and background
Communications providers and other operators and owners of linear
infrastructure pay the federal government for the use of rights-of-way
(ROW) over lands administered by the U.S. Forest Service (USFS), the
Bureau of Land Management (BLM), and other federal agencies. Currently,
the fees for rights-of-way on federal lands are based on a proxy for
the market value of the land, the size of the right-of-way, and the
number of cables, pipes, or other distinct facilities. These
calculations are reasonably equivalent to the land value and the
physical impact of the facility.
Recently, however the BLM and USFS proposed to increase ROW fees,
by changing the basis of the calculation for ``fiber-optic projects,''
based on data they believed demonstrated a special, separate ``value of
fiber-optic use and occupancy.'' These interim and proposed policies,
however, capture neither the fair market value of the land over which
fiber-optic cable is conveyed, nor the consequent impact on federal
lands and resources. Instead, the proposed policies attempt to capture
a portion of telecommunications revenues, by charging for uses not
based on the value of land to the federal government or impacts
thereto, but by rates specific to the technology or economic value of
the facilities themselves. We believe these policies are based on
arbitrary assumptions and anecdotal evidence regarding the ``market''
value of telecommunications easements across private, state, and
municipal lands, sometimes in distant, urban settings. The first
instances in which these proposed and interim policies were implemented
resulted in fees 150 times those in the published, established, and
legitimate federal fee schedules. The USFS and BLM have failed to
justify such large increases based either on actual land value or on
land impact. Currently, after much Congressional inquiry and stern
oversight, the agencies have indefinitely delayed implementation of new
fees.
the proposed methodologies are unjust
The methodologies proposed by the BLM and USFS are inconsistent
with current regulations and policies applied to other infrastructure
providers. Forcing critical infrastructure providers to pay
dramatically increased fees for the use of federal lands, particularly
where the new use is similar or compatible to other existing uses,
involving impacts identical to or less than uses for which a lower fee
is charged, is inconsistent. Such policies protect neither the public
land nor the public interest. Such policies do not accomplish the goals
of protecting the value of federal lands or natural resources. They
amount to a tax on the services conveyed by these facilities.
Furthermore, under such policies, federal lands and other reservations
become roadblocks or toll booths to interstate and international
commerce.
agency officials have recognized the inequity of these policies
The Interagency Land Acquisition Conference, an ad hoc group of
appraisers and real estate professionals in the federal government,
recognized the inappropriate nature of these technology-based
valuations in their most recent revision to the Uniform Appraisal
Standards for Federal Land Acquisition (see Attachment). The Conference
indicated that the federal government should not pay inflated
technology-based prices when acquiring rights-of-way over lands owned
by private citizens or other entities. However, in addressing what a
federal agency may charge for the use of an easement on federal land,
the participating agencies indicated, quite inconsistently, that they
saw no reason why federal agencies could not charge private easement
holders these technology-specific rates. Thus, the agencies made clear
that, technology-based prices for leasing rights of way are
inappropriate when a federal agency has to pay such inflated rates, but
may be perfectly appropriate when the federal agencies are the
recipient of such fees. In both cases, we are talking about definitions
of ``fair market value.'' It is important to note that many of the same
appraisers who crafted this inconsistent internal agency policy are the
same individuals advising the new fiber-optic fee schedules.
the proposed methodology is contrary to real estate appraisal
principles
Generally speaking, easement values are determined to be somewhat
less than the fee value of the land upon which the easement is
established, since these rights-of-way consist of a limited contract to
use lands for a specific purpose. These valuations are guided by two
basic principles: 1) ``before and after'' value, which ascribes a value
to easements equal or similar to the reduction of value or utility
resulting from an easement use; and 2) ``willing buyer-willing
seller,'' a principle which suggests that the parties to an easement
transaction enter as willing and equal participants, with an array of
possible options. The approach taken by federal agencies focuses on
situations where cities or other entities have incorporated franchise-
like fees into required easement payments, or where individual
landowners have leveraged their ability to ``hold out'' or obstruct
established rights across adjacent lands to obtain higher payments for
easements on their land. These cases are exceptional, and should not
alter the established principles, which base easement payments on the
underlying property value.
land value is the proper measure of fair market value for rights-of-way
Since there is no true market in federal land, overall valuation,
as well as the cost of the land impact, must be estimated. While it is
appropriate for the government to come up with some methodology to
estimate values, in this case, we believe they have chosen to apply
inappropriate principles. An estimation of ROW value must be based on
the estimated value of the land, and on the estimated impact of the
project on the value of the remaining land, not on the value of
technology installed or associated commerce. A cost or impact-based
principle is the universal methodology used by right-of-way project
developers to determine constitutional levels of payment for rights-of-
way obtained from private parties in condemnation proceedings. This is
how the Federal Government determines how much to pay private land
owners when they acquire rights-of-way for roads or other public
projects.
the market value of most federal land is low
Government-held land is subject to far more restrictions than is
similar private property. This is because federal statutes restrict
activities on federal lands to accomplish other public objectives. For
instance, federal easement holders cannot obtain permanent rights-of-
way, and must obtain federal regulatory approval to engage in routine
maintenance. Such restrictions increase operating costs, and thus
dramatically decrease the value of the federal land easements.
Furthermore, development of federal lands is limited, as they are not
made available for many of the competing uses possible on private
lands, and therefore federal lands are generally of lower real estate
value than similar privately-held lands. As a result, any policy that
attempts to draw direct associations between right-of-way fees on
private lands and fair equivalents on federal lands must take into
account factors which reduce the utility and value of federal land
easements, and which limit the value of federal lands.
the agency proposals are inefficient and environmentally unsound
These new fee schedules, proposed to increase fees incrementally
based on the number of users, or are based on the type of technology
rather than the land value and use, discourage the construction of
dark-fiber or additional unused capacity, which can be utilized at a
later date. Discouraging the installation of fiber that may be
currently unused simply means that additional capacity needed in the
future may require additional complete installations, with the related
economic costs and environmental impacts of reaccessing federal lands
and resource areas. Such additional installations would be unnecessary
if large numbers of fibers, cables, or ducts, even though
underutilized, were installed all at one time, at one fee.
The USFS and BLM, which currently administer ROW through a single,
consistent linear fee schedule, have indicated their intention to
increase fees for fiber-optic rights-of-way first, and then proceed to
reissue fees for other facilities, such as pipelines, power lines,
water lines, et cetera. As I noted earlier, and as you will hear from
my colleague from the Interstate Natural Gas Association of the
Americas, the impacts of such fees on our nations energy infrastructure
could be devastating for companies that supply or deliver these
services and commodities.
USFS and BLM have initiated a trend among other federal agencies
that manage public lands. Through authorizing statutes other than
FLPMA, the National Park Service and National Oceanic and Atmospheric
Administration have drafted or are considering similar policies
charging fees for the right to cross parks and marine sanctuaries with
fiber-optic cables. It is important to note that none of these rights-
of-way are established until extensive NEPA analyses have been
conducted, and deliberate and due care has been taken to prevent and
monitor impacts to the environment. Despite the conclusions of
government studies, indicating little or no ecological harm, these
agencies have followed the lead of the BLM and USFS in pursuing
exorbitant increases in right-of-way rents and other compensation for
the right to cross federal lands.
conclusion
Rights-of-way for fiber-optic telecommunications and other linear
facilities are an important use of federal lands, whose impact on the
underlying value, and other uses of those lands is minimal. To
paraphrase FLPMA, rent for rights-of-way should be no greater than the
value of the rights and privileges authorized by the right-of-way grant
or permit, and should reflect a public interest in the construction of
such facilities. Furthermore, we believe that valid, established real
estate principles should underlie any regulatory decisions made as to
the value of rights-of-way. TelROW supports passage of H.R. 762, as
well as other regulatory and legislative processes through which a
reasonable, practical, and consistent linear right-of-way fee schedule
can be developed.
We recognize that these agencies may have, in good faith,
misinterpreted the intent of Congress in charging ROW fees, and believe
that through the additional guidance provided by H.R. 762, and a public
rule making process with adequate opportunity for notice and comment
from all stakeholders (the process through which the existing fee
schedule was established), the existing fee schedule can be revised, if
necessary, to more accurately reflect the value of these rights-of-way.
Prompt resolution of this issue will provide certainty to the purveyors
of our Nation's critical infrastructure, who are committed to
delivering reliable, secure, and vital products, utilities, and
services to America's consumers and growing economy. We look forward to
working with this Committee, Federal Land Management Agencies, and
other interested stakeholders pursuant to what we believe is a common
goal, in the public interest.