[Senate Report 105-126]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 240
105th Congress                                                   Report
                                 SENATE

 1st Session                                                    105-126
_______________________________________________________________________


 
                 BIG HORN COUNTY, WYOMING LAND TRANSFER

                                _______
                                

                October 30, 1997.--Ordered to be printed

_______________________________________________________________________


  Mr. Murkowski, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 814]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 814) to direct the Secretary of the 
Interior to transfer to John R. and Margaret J. Lowe of Big 
Horn County, Wyoming, certain land so as to correct an error in 
the patent issued to their predecessors in interest, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. TRANSFER OF LOWE FAMILY PROPERTY.

    (a) Conveyance.--Subject to valid existing rights, the Secretary of 
the Interior is directed to issue, without consideration, a quitclaim 
deed to John R. and Margaret J. Lowe of Big Horn County, Wyoming, to 
the land described in subsection (b): Provided, That all minerals 
underlying such land are hereby reserved to the United States.
    (b) Land Description.--The land referred to in subsection (a) is 
the approximately 40-acre parcel located in the SW\1/4\SE\1/4\ of 
Section 11, Township 51 North, Range 96 West, 6th Principal Meridian, 
Wyoming.

                                purpose

    The purpose of S. 814 is to direct the Secretary of the 
Interior to transfer to John R. and Margaret J. Lowe of Big 
Horn County, Wyoming, certain land so as to correct an error in 
the patent issued to their predecessors in interest.

                          background and need

    The 40-acre parcel of land in question was contained within 
a patent issued on September 12, 1910. While that patent listed 
a total of 160 acres, the legal description of the land only 
covered 120 acres. Records for Big Horn County indicate that 
property taxes for 160 acres have been collected off the land 
since its patent in 1910. In point of fact, Big Horn County 
seized the property in 1925 for back taxes and proceeded to 
resell it as a 160-acre tract. The Lowes purchased the property 
in 1966 and have been paying taxes on the full 160 acres since 
then.
    The Bureau of Land Management has stated that the most 
reasonable options to clear the title are either enactment of 
legislation to transfer the property or for the Lowes to re-
purchase the property at its current market value. In its views 
to the Committee, the Department of the Interior supports 
transfer to the Lowes as long as the mineral estate is retained 
by the United States.

                          legislative history

    On May 23, 1997, S. 814 was introduced by Senators Enzi and 
Thomas. On September 25, 1997 the Subcommittee of Forests and 
Public Land Management held a hearing on the legislation.

            committee recommendation and tabulation of votes

    The Senate Committee on Energy and Natural Resources, in 
open business session on October 22, 1997, by voice vote of a 
quorum present, recommends that the Senate pass S. 814, if 
amended as described herein.

                          committee amendment

    During the consideration of S. 814, the Committee adopted 
an amendment in the nature of a substitute. The amendment makes 
clarifying changes and adds language reserving all minerals 
underlying the land to the United States.

                           summary of s. 814

    S. 814 directs the Secretary of the Interior to issue a 
quitclaim deed to John R. and Margaret J. Lowe for lands 
described in Subsection (b) with a provision that all minerals 
underlying the land are reserved to the United States.

                   cost and budgetary considerations

    The following estimate of the cost of this measure has been 
provided by the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 23, 1997.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 814, a bill to 
direct the Secretary of the Interior to transfer to John R. and 
Margaret J. Lowe of Big Horn County, Wyoming, certain land so 
as to correct an error in the patent issued to their 
predecessors in interest.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Victoria V. 
Heid.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

               congressional budget office cost estimate

S. 814--A bill to direct the Secretary of the Interior to transfer to 
        John R. and Margaret J. Lowe of Big Horn County, Wyoming, 
        certain land so as to correct an error in the patent issued to 
        their predecessors in interest

    S. 814 would direct the Secretary of the Interior, acting 
through the Bureau of Land Management, to transfer without 
consideration about 40 acres of public land in Big Horn County, 
Wyoming, to John R. and Margaret J. Lowe. The federal 
government would retain the mineral interests in the land.
    CBO estimates that enacting this bill would have no 
significant impact on the federal budget. Because S. 814 would 
not affect direct spending or receipts, pay-as-you-go 
procedures would not apply. S. 814 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act of 1995 and would have no 
significant impact on the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Victoria V. 
Heid. This estimate was approved by Paul N. Van de Water, 
Assistant Director for Budget Analysis.

                      regulatory impact evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 814. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from 
enactment of S. 814, as ordered reported.

                        executive communications

    The legislative report received by the Committee from the 
Department of the Interior setting forth Executive agency 
recommendations relating to S. 814 is set forth below:
                   U.S. Department of the Interior,
                                   Office of the Secretary,
                                  Washington, DC, October 21, 1997.
Hon. Frank Murkowski,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: Thank you for the opportunity to present 
the views of the Department of the Interior (Interior) on S. 
814, a bill to transfer forty acres of public land in Big Horn 
County, Wyoming to John R. and Margaret J. Lowe. Interior 
testified on this bill before the Subcommittee on Forests and 
Public Lands Management on September 25, 1997.
    Interior supports S. 814. There is a confusing history to 
this parcel, which is recorded in the public record, and which 
supports the Lowe's claim to this land.
    The Bureau of Land Management (BLM) field office completed 
a status and record review of the forty-acre block. The land in 
question was originally part of a one hundred and sixty acre 
tract entered by Ms. Mary Keith under the Desert Land Act (DLA) 
in 1903. The DLA allows entry of up to three hundred and twenty 
acres prior to title transfer so the entryman can develop the 
lands and complete an irrigation system as required by law. A 
Final Certificate, the final administrative record prior to 
patent issuance, was issued for this one hundred and sixty 
acres in November of 1908. Records indicate that the disputed 
forty acres (SW\1/4\SE\1/4\ of section 11, T. 51 N., R. 96 W., 
6th Principal Meridian, Wyoming) were purposely relinquished by 
the entrywoman in the month of April, 1910. This relinquishment 
was accepted by the General Land Office. Ownership of the 
remaining one hundred and twenty acres was conveyed to Ms. 
Keith with the issue of a patent in September 1910. The last 
minute relinquishment of the forty acres apparently resulted in 
an error in the patent, which stated that one hundred and sixty 
acres were conveyed, even though the written legal description 
in the patent correctly describes one hundred and twenty acres.
    Review of the Bighorn County Records, however, reveal a 
much more confusing history of this parcel. In 1925, the 
Bighorn County Treasurer issued a tax deed to Bighorn County 
for the forty acres in question. The tax deed was issued as a 
result of foreclosure for non-payment of taxes. However, we are 
unable to positively confirm why the county treasurer believed 
the forty acres was private property or who was supposedly 
delinquent in taxes. Once this tax deed was issued, the county 
was free to sell the parcel, which it did in 1936 to one M.H. 
English. In 1966, the Lowes purchased the forty-acre parcel 
from M.H. English. The Lowes obtained an abstract of title for 
this purchase. The abstractor who completed the title search 
noted, apparently incorrectly, that the original patent was in 
error. He provided the written opinion that, based onother 
entries in the county records, the legal description of the land being 
transferred by the issued abstract was sold, and the new owners have 
stated that they are not liable for the precious work. Our Solicitor 
believes the Lowes would only have a remote chance of prevailing 
against the title company in litigation at a cost which would well 
exceed the value of the land. County records indicate the Lowes have 
been paying taxes on the land since 1966.
    Obviously, the history of the forty acres is clouded. The 
BLM has reviewed three options normally available to clear up 
this type of issue. First, the Lowes could request that the 
original patent be corrected, but this would only result in the 
patent being changed to read one hundred and twenty acres as 
compared to the one hundred and sixty acres which is stated in 
error. As a second alternative, the Lowes could seek relief 
under the Color of Title Act. However, this application would 
be rejected as the forty-acre parcel has neither improvements 
nor a history of cultivation as required by the Act. Finally, 
the Lowes could seek to purchase the land at fair market value 
as allowed under the Federal Land Policy and Management Act. 
BLM can process a sale directly to the Lowes. However, this 
does not allow any reduction in value to recognize that the 
Lowes purchased the land in good faith and have paid taxes on 
the property since 1966. S. 814 will allow this problem to be 
rectified with no or minimal additional expense to either the 
Lowes or the BLM.
    We could recommend, however, that the language of the bill 
be changed in order to recognize valid existing rights, as an 
existing irrigation ditch crosses through the property. We also 
recommend that the United States transfer its right, title, and 
interest in only the surface estate and that the mineral estate 
be reserved to the United States, as would be the case under a 
Color of Title resolution.
    The Committee's majority staff provided a copy of a 
substitute amendment that is intended for introduction at the 
markup. It appears upon review of this substitute that the 
Department's concerns have been addressed and suggestions for 
modification taken. We would therefore support the reporting 
out of this bill from your Committee.
    The Office of Management and Budget has advised that there 
is no objection to the presentation of this report from the 
standpoint of the President's program.
            Sincerely,
                                     Bob Armstrong,
                           Assistant Secretary for Land and
                                               Minerals Management.

                        changes in existing law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 814, as ordered 
reported.