[Congressional Record Volume 144, Number 122 (Tuesday, September 15, 1998)]
[Senate]
[Pages S10383-S10384]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. WYDEN (for himself, Mr. Daschle, Mr. Smith of Oregon, Mr. 
        Baucus, Mr. Craig, Mr. Johnson, and Mr. Burns):
  S. 2472. A bill to amend the Federal Land Policy and Management Act 
of 1976 to exempt the holder of a right-of-way on public lands granted, 
issued, or renewed for an electric energy generation, transmission, or 
distribution system from certain strict liability requirements 
otherwise imposed in connection with such a right-of-way; to the 
Committee on Energy and Natural Resources.


                       rights-of-way legislation

 Mr. WYDEN. Mr. President, I am pleased to be joined by 
Senators Daschle, Smith of Oregon, Baucus, Burns, Johnson, and Craig, 
in introducing legislation making an important adjustment to the way 
the Government manages rights-of-way over federal lands. The provisions 
in this bill address the situation involving liability standards for 
electric utilities that utilize federal rights-of-ways to provide 
electricity to rural communities.

  I am pleased to be working on this issue with my good friends and 
colleagues from Oregon, Bob Smith and Peter DeFazio. Chairman Smith has 
introduced similar legislation in the House of Representatives, which 
received a hearing in the House Resources Committee earlier this year. 
During that hearing, one of my constituents, Mr. Bill Kopacz of 
Midstate Electric in LaPine, Oregon testified on the need to reform the 
current federal policy of requiring strict liability for fires that 
occur in right-of-ways.
  Under strict liability, the holder of a right of way is responsible 
for all injury, loss, or damage, including fire suppression costs, 
caused by the holder of the right of way without regard to the holder's 
negligence.
  The problem that this legislation addresses is best illustrated by 
the experience of the Midstate Electric Cooperative of LaPine, Oregon.
  As a matter of prudent maintenance, Midstate trims or removes trees 
on right-of-ways that pose a risk of falling onto electric lines. On 
federal rights-of-way, the cooperative consults with the appropriate 
land management agency--which of course must approve these management 
actions. After proposing the removal of a number of trees on a Forest 
Service right-of-way in 1984, Midstate was told by the agency that it 
could cut some down, but had to leave other specified trees standing. 
Of course the predictable happened--one of the trees that Midstate had 
proposed cutting, which the Forest Service had refused to allow to be 
removed, fell into a power line and started a fire.
  In the end it cost more than $326,850 to put that fire out--and 
Midstate Electric got the bill. Since the fire resulted from a 
management decision of the Forest Service, Midstate went to court in an 
attempt to appropriately assign the financial liability of fighting the 
fire. Midstate lost the court action because of a ruling which 
interpreted right-of-way contracts as holding the co-op and other 
right-of-way lessees to a strict liability standard.
  The 1976 Federal Land Policy and Management Act provided federal 
agencies with the authority to impose strict liability for costs 
associated with hazards on federal lands. Prior to 1976, agencies 
recovered costs associated with hazards, such as costs required to put 
out a fire, on the basis of normal negligence.
  This bill would replace that strict liability standard in favor of a 
normal negligence standard that is routinely used in private right-of-
way contracts. The new standard will say: if you caused it, you are 
responsible for it. Rural electric cooperatives, investor-owned 
utilities and municipalities are not looking to pass the buck to the 
American taxpayer. If they are negligent in maintaining federal rights-
of-way, they should bear the responsibility. However, by enforcing any 
standard more rigid than that, the land management agencies are 
purposefully transferring cost to private citizens.
  The minimum impact of the current strict liability policy is higher 
electric rates for those rural communities who live in close proximity 
to public lands. The possibility exists, however, of even more punitive 
impacts in the form of the loss of insurance coverage for entities with 
federal rights-of-way liability.
  In my judgement, this legislation restores an appropriate balance to 
the shared responsibility of both the land manager and the utility in 
reducing the natural hazards along a right of

[[Page S10384]]

way. As we saw in the Midstate case, because the Forest Service bears 
no exposure to costs associated with fire and risk prevention, the 
Forest Service simply did not allow the full use of measures to reduce 
those risks.
  This legislation will not only benefit the state of Oregon. Utilities 
all through the United States have rights-of-way permits with our land 
management agencies. This proposal is of interest in states such as 
California, Idaho, Florida, Minnesota, Montana, Wyoming and 
Pennsylvania. I believe my proposal is fair and balanced legislation 
that protects our rural communities. I look forward to working with my 
colleagues and the Administration to perfect this legislation in the 
waning days of the 105th Congress.
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