[Senate Report 108-234]
[From the U.S. Government Publishing Office]
Calendar No. 444
108th Congress Report
SENATE
2d Session 108-234
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BARRY AND STONE COUNTIES, MISSOURI
_______
March 9, 2004.--Ordered to be printed
_______
Mr. Domenici, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 1167]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1167) to resolve boundary conflicts in
Barry and Stone Counties in the State of Missouri, having
considered the same, reports favorably thereon with an
amendment and an amendment to the title and recommends that the
bill, as amended, do pass.
The amendments are as follows:
1. Strike out all after the enacting clause and insert in
lieu thereof the following:
SECTION 1. RESOLUTION OF BOUNDARY CONFLICTS, VICINITY OF MARK TWAIN
NATIONAL FOREST, BARRY AND STONE COUNTIES,
MISSOURI.
(a) Definitions.--In this section:
(1) The term ``appropriate Secretary'' means the Secretary of
the Army or the Secretary of Agriculture.
(2) The term ``boundary conflict'' means the situation in
which the private claim of ownership to certain lands, based on
subsequent Federal land surveys, overlaps or conflicts with
Federal ownership of the same lands.
(3) The term ``Federal land surveys'' means any land survey
made by any agency or department of the Federal Government
using Federal employees, or by Federal contract with State-
licensed private land surveyors or corporations and businesses
licensed to provide professional land surveying services in the
State of Missouri for Table Rock Reservoir.
(4) The term ``original land surveys'' means the land surveys
made by the United States General Land Office as part of the
Public Land Survey System in the State of Missouri, and upon
which Government land patents were issued conveying the land.
(5) The term ``Public Land Survey System'' means the
rectangular system of original Government land surveys made by
the United States General Land Office and its successor, the
Bureau of Land Management, under Federal laws providing for the
survey of the public lands upon which the original land patents
were issued.
(6) The term ``qualifying claimant'' means a private owner of
real property in Barry or Stone County, Missouri, who has a
boundary conflict as a result of good faith and innocent
reliance on subsequent Federal land surveys, and as a result of
such reliance, has occupied or improved Federal lands
administered by the appropriate Secretary.
(7) The term ``subsequent Federal land surveys'' means any
Federal land surveys made after the original land surveys that
are inconsistent with the Public Land Survey System.
(b) Resolution of Boundary Conflicts.--The Secretary of the Army and
the Secretary of Agriculture shall cooperatively undertake actions to
rectify boundary conflicts and landownership claims against Federal
lands resulting from subsequent Federal land surveys and correctly
reestablish the corners of the Public Land Survey System in Barry and
Stone Counties, Missouri, and shall attempt do so in a manner which
imposes the least cost and inconvenience to affected private
landowners.
(c) Notice of Boundary Conflict.--
(1) Submission and contents.--A qualifying claimant shall
notify the appropriate Secretary in writing of a claim that a
boundary conflict exists with Federal land administered by the
appropriate Secretary. The notice shall be accompanied by the
following information, which, except as provided in subsection
(e)(2)(B), shall be provided without cost to the United States:
(A) A land survey plat and legal description of the
affected Federal lands, which are based upon a land
survey completed and certified by a Missouri State-
licensed professional land surveyor and done in
conformity with the Public Land Survey System and in
compliance with the applicable State and Federal land
surveying laws.
(B) Information relating to the claim of ownership of
the Federal lands, including supporting documentation
showing that the landowner relied on a subsequent
Federal land survey due to actions by the Federal
Government in making or approving surveys for the Table
Rock Reservoir.
(2) Deadline for submission.--To obtain relief under this
section, a qualifying claimant shall submit the notice and
information required by paragraph (1) within 15 years after the
date of the enactment of this Act.
(d) Resolution Authorities.--In addition to using existing
authorities, the appropriate Secretary is authorized to take any of the
following actions in order to resolve boundary conflicts with
qualifying claimants involving lands under the administrative
jurisdiction of the appropriate Secretary:
(1) Convey by quitclaim deed right, title, and interest in
land of the United States subject to a boundary conflict
consistent with the rights, title, and interest associated with
the privately-owned land from which a qualifying claimant has
based a claim.
(2) Confirm Federal title to, and retain in Federal
management, any land subject to a boundary conflict, if the
appropriate Secretary determines that there are Federal
interests, including improvements, authorized uses, easements,
hazardous materials, or historical and cultural resources, on
the land that necessitates retention of the land or interests
in land.
(3) Compensate the qualifying claimant for the value of the
overlapping property for which title is confirmed and retained
in Federal management pursuant to paragraph (2).
(e) Consideration and Cost.--
(1) Conveyance without consideration.--The conveyance of land
under subsection (d)(1) shall be made without consideration.
(2) Costs.--The appropriate Secretary shall--
(A) pay administrative, personnel, and any other
costs associated with the implementation of this
section by his or her Department, including the costs
of survey, marking, and monumenting property lines and
corners; and
(B) reimburse the qualifying claimant for reasonable
out-of-pocket survey costs necessary to establish a
claim under this section.
(3) Valuation.--Compensation paid to a qualifying claimant
pursuant to subsection (d)(3) for land retained in Federal
ownership pursuant to subsection (d)(2) shall be valued on the
basis of the contributory value of the tract of land to the
larger adjoining private parcel and not on the basis of the
land being a separate tract. The appropriate Secretary shall
not consider the value of any Federal improvements to the land.
The appropriate Secretary shall be responsible for compensation
provided as a result of subsequent Federal land surveys
conducted or commissioned by the appropriate Secretary's
Department.
(f) Preexisting Conditions; Reservations; Existing Rights and Uses.--
(1) Preexisting conditions.--The appropriate Secretary shall
not compensate a qualifying claimant or any other person for
any preexisting condition or reduction in value of any land
subject to a boundary conflict because of any existing or
outstanding permits, use authorizations, reservations, timber
removal, or other land use or condition.
(2) Existing reservations and rights and uses.--Any
conveyance pursuant to subsection (d)(1) shall be subject to--
(A) reservations for existing public uses for roads,
utilities, and facilities; and
(B) permits, rights-of-way, contracts and any other
authorization to use the property.
(3) Treatment of land subject to special use authorization or
permit.--For any land subject to a special use authorization or
permit for access or utilities, the appropriate Secretary may
convert, at the request of the holder, such authorization to a
permanent easement prior to any conveyance pursuant to
subsection (d)(1).
(4) Future reservations.--The appropriate Secretary may
reserve rights for future public uses in a conveyance made
pursuant to subsection (d)(1) if the qualifying claimant is
compensated for the reservation in cash or in land of equal
value.
(5) Hazardous substances.--The requirements of section 120(h)
of the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. 9620(h)) shall not apply to
conveyances or transfers of jurisdiction pursuant to subsection
(d), but the United States shall continue to be liable for the
cleanup costs of any hazardous substances on the lands so
conveyed or transferred if the contamination by hazardous
substances is caused by actions of the United States or its
agents.
(g) Relation to Other Conveyance Authority.--Nothing in this section
affects the Quiet Title Act (28 U.S.C. 2409a) or other applicable law,
or affects the exchange and disposal authorities of the Secretary of
Agriculture, including the Small Tracts Act (16 U.S.C. 521c), or the
exchange and disposal authorities of the Secretary of the Army.
(h) Additional Terms and Conditions.--The appropriate Secretary may
require such additional terms and conditions in connection with a
conveyance under subsection (d)(1) as the Secretary considers
appropriate to protect the interests of the United States.
(i) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out the purposes of
this Act.
2. Amend the title so as to read: ``A bill to resolve
boundary conflicts in Barry and Stone Counties in the State of
Missouri.''.
PURPOSE
The purpose of S. 1167 is to provide a process for the
Forest Service and the U.S. Army to resolve boundary disputes
with private landowners around the Mark Twain National Forest
in Missouri. The bill would give property owners who have
ownership disputes with the two agencies 15 years to notify the
Federal Government of their claims. Upon receipt of a valid
claim, the appropriate agency is authorized to convey the
disputed property to the private owners or confirm federal
ownership and compensate the private owners for the value of
the disputed land. The Secretaries are authorized to convey the
land without consideration for certain survey costs, to pay
associated administrative costs incurred by their Departments,
and to reimburse the landowner.
BACKGROUND AND NEED
During the 1970's, the U.S. Army Corps of Engineers,
through various private land surveyors, surveyed this area
around Table Rock Lake in Missouri. The land involving these
disputed property lines is located in the vicinity of the
Cassville District of the Mark Twain National Forest in Barry
and Stone Counties adjacent to Table Rock Lake. In its surveys,
the Corps found that most of the original ``corner monuments''
or boundary lines laid out by the U.S. General Land Office
(GLO) in its original land surveys performed in the 1840's were
either lost, stolen or had eroded over the years. Because of
this, Corps surveyors used existing de-facto land markers in
the vicinity of the original GLO monuments as the basis for its
new survey.
More recently, the USFS performed new land surveys, and
claims that the boundary lines in its surveys conflict with the
boundary lines established in the previous Corps of Engineers
surveys. The USFS also believes that the Corps surveys are
incorrect and that the property lines in the area are
incorrectly located.
To date the Corps of Engineers and the Forest Service have
been unable to agree on a resolution to this problem. In the
meantime, the lives of many of these Missouri residents
continue to be disrupted due to clouded titles.
The legislation authorizes the Secretaries of Agriculture
and the Army to convey to the private land owners, without
consideration, title to land on which there is a boundary
conflict with adjoining Federal land, if the landowner can
demonstrate that they occupied or improved Federal lands
because they relied innocently and in good faith on a
subsequent land survey approved by the Federal Government.
LEGISLATIVE HISTORY
S. 1167 was introduced on June 2, 2003 by Senator Bond.
Senator Talent is a co-sponsor. The Subcommittee on Public
Lands and Forests held a hearing on S. 1167 on November 18,
2003. S. Hrg. 108-321. H.R. 2304, a companion bill, passed the
House of Representatives by voice vote on November 17, 2003. At
the business meeting on February 11, 2004, the Senate Committee
on Energy and Natural Resources ordered S. 1167, favorably
reported, with an amendment in the nature of a substitute.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on February 11, 2004, by a unanimous vote
of a quorum present, recommends that the Senate pass S. 1167,
if amended as described herein.
The rollcall vote on reporting the measure was 23 yeas, 0
nays, as follows:
YEAS NAYS
Mr. Domenici
Mr. Nickles
Mr. Craig
Mr. Campbell*
Mr. Thomas
Mr. Alexander
Ms. Murkowski
Mr. Talent
Mr. Burns
Mr. Smith*
Mr. Bunning
Mr. Kyl*
Mr. Bingaman
Mr. Akaka
Mr. Dorgan*
Mr. Graham of Florida*
Mr. Wyden*
Mr. Johnson*
Ms. Landrieu*
Mr. Bayh*
Mrs. Feinstein*
Mr. Schumer*
Ms. Cantwell
* Indicates voted by proxy.
COMMITTEE AMENDMENTS
During the consideration of S. 1167, the Committee adopted
an amendment in the nature of a substitute. The substitute
adopts most of the language of H.R. 2304, strikes the findings
and purpose section from the bill, and adds a sections to
address hazardous substances to make a clear statement that the
Secretary of the Army and the Secretary of Agriculture shall
take actions to rectify the boundary conflicts.
SECTION-BY-SECTION ANALYSIS
Section 1(a) provides definitions.
Section 1(b) directs the Secretaries to cooperatively work
to resolve boundary conflicts in Barry and Stone Counties.
Section 1(c) sets forth the process for filing a claim.
Section 1(d), in addition to using existing authorities,
authorizes the Secretary:
(1) to convey by quitclaim deed all right, title, and
interest of the United States in land for which there
is a boundary conflict; or
(2) to confirm Federal title to and retain in Federal
management any land subject to a boundary conflict, if
there are Federal interests such as improvements,
authorized uses, easements, hazardous materials,
historical and cultural resources; and
(3) to compensate the qualifying claimant for the
value of the overlapping property for which title is
confirmed and retained by the Federal Government.
Section 1(e) directs the appropriate Secretary to waive
consideration for the value of the Federal land conveyed
pursuant to subsection(d)(1), and to pay administrative,
personnel and any other costs incurred by his or her
Department, and to reimburse qualifying claimants for
reasonable out-of-pocket survey costs necessary to establish a
claim pursuant to subsection (c).
Paragraph 3 directs the appropriate Secretary to value the
land retained by the Federal Government pursuant to subsection
(d)(3) on the basis of the contributory value of the tract of
land to the larger adjoining private parcel. It also provides
for each Department to be responsible for funding any
compensation necessitated by that Department's erroneous
surveys.
Section 1(f) provides direction for the Federal
Government's treatment of preexisting conditions, reservations,
and existing rights and uses.
Paragraph (1) directs the Federal Government to not pay
compensation for any preexisting condition or reduction in
value of any land which is subject to a boundary conflict.
Paragraph (2) protects certain valid existing rights and
uses on lands conveyed pursuant to subsection (d)(1).
Paragraph (3) provides for treatment of land subject to a
special use authorization or permit for access or utilities.
Paragraph (4) provides for reserving rights for future
public uses in a conveyance if the qualifying claimant is
compensated in cash or land.
Paragraph (5) further provides that section 120(h) of the
Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. 9620(h)) shall not apply to
conveyances or transfers of jurisdiction under this Act except
that the United States shall continue to be liable for the
cleanup costs of any hazardous substances if the contamination
by hazardous substances is caused by actions of the United
States or its agents.
Section 1(g) reserves certain valid existing rights and
uses and describes the responsibility of the claimants to
establish that they have a valid claim.
Section 1(h) describes that nothing in this section affects
other applicable law or authorities for exchange or disposal of
the Secretaries of Agriculture or Army.
Section 1(i) authorizes appropriations.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of costs of this measure has been
provided by the Congressional Budget Office.
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 24, 2004.
Hon. Pete V. Domenici,
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. 1167, a bill to
resolve boundary conflicts in Barry and Stone counties in the
state of Missouri.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Elizabeth Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
S. 1167--A bill to resolve boundary conflicts in Barry and Stone
counties in the state of Missouri
S. 1167 would provide a process for the Forest Service and
the U.S. Army to resolve boundary disputes with private
landowners around the Mark Twain National Forest. The bill
would give property owners who have ownership disputes with the
two agencies 15 years to notify the federal government of their
claims. Upon receipt of a valid claim, the appropriate agency
would then either convey the disputed property to the private
owners or confirm federal ownership and compensate the private
owners for the value of the disputed land. In the first case,
the agencies could convey the land without consideration and
pay associated administrative costs and reimbursements to the
landowner.
Based on information provided by the Forest Service, CBO
estimates that implementing S. 1167 would cost less than
$500,000 annually, assuming the availability of appropriated
funds. The claims process that would be established by the
legislation could expedite the resolution of ongoing boundary
disputes at the Mark Twain National Forest, but the remedies
that would be authorized are the same as those that the
agencies could provide under existing law. Under the bill, the
agencies could incur additional costs to survey disputed tracts
and reimburse landowners for their out-of-pocket expenses.
S. 1167 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would have no significant impact on the budgets of state,
local, or tribal governments.
On November 5, 2003, CBO transmitted a cost estimate for
H.R. 2304, similar legislation, as ordered reported by the
House Committee on Agriculture on October 29, 2003. The two
bills are substantively similar, and our cost estimates are the
same.
The CBO staff contact for this estimate is Megan Carroll.
This estimate was approved by Peter H. Fontaine, Deputy
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. 1167. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses, and instead establishes a voluntary program to
relieve boundary conflicts.
Private land owners seeking to establish claims under this
program may need to provide information supporting their
claims.
Little, if any, additional paperwork would result from the
enactment of S. 1167, as ordered reported.
EXECUTIVE COMMUNICATIONS
On February 12, 2004, the Senate Committee on Energy and
Natural Resources requested legislative reports from the
Department of the Interior, the Department of Agriculture, and
the Office of Management and Budget setting forth executive
views on S. 1167. These reports had not been received at the
time the report on S. 1167 was filed. When the reports become
available, the Chairman will request that they be printed in
the Congressional Record for the advice of the Senate. The
testimony provided by the U.S. Forest Service at the
Subcommittee hearing follows:
Statement of Tom Thompson, Deputy Chief, National Forest System, Forest
Service, Department of Agriculture
Mr. Chairman and members of the subcommittee, thank you for
the opportunity to appear before you today. I would like to
present the Department's views on S. 1167, to resolve boundary
conflicts in Barry and Stone Counties, in the State of
Missouri. The Department objects to S. 1167 unless the bill is
amended to address the concerns identified in my testimony.
S. 1167--the Mark Twain National Forest Boundary Adjustment
S. 1167 would authorize the Secretary of Agriculture or the
Secretary of the Army to resolve boundary conflicts with
certain landowners in Barry and Stone Counties, Missouri, who
have innocently and in good faith relied on land surveys which
they believed to have been correct and have, as a result,
occupied, improved or claimed portions of adjoining Federal
land based on such surveys.
S. 1167 would authorize the Secretaries to convey and
quitclaim all right, title, and interest of the United States
in land for which there is a boundary conflict; or to confirm
Federal title to and retain in Federal management any land for
which there is a boundary conflict where there are Federal
interests, and to compensate the qualifying claimant for the
value of the overlapping property for which title is confirmed
and retained in Federal management, provided that a claim is
filed within 15 years of the date of enactment of the Act. S.
1167 also authorizes the Secretaries to: (1) waive
consideration for the value of the Federal land conveyed and
quitclaimed upon a finding that the boundary conflict was the
result of the innocent detrimental reliance by the qualifying
claimant; (2) pay administrative, personnel, and any other
costs associated with the implementation of this Act, including
the costs of survey, marking and monumental property lines and
corners; and (3) reimburse the qualifying claimant for
reasonable out-of-pocket survey costs necessary to establish a
claim under this Act.
The basic facts do not appear to be in dispute. Surveyors
under contract to the U.S. Army Corps of Engineers (Corps) in
the 1970's, who conducted a series of cadastral surveys in the
area around the Table Rock Reservoir in Missouri, failed to
properly locate and monument a number of the original Public
Land Survey System (PLSS) corners. Subsequent private land
surveys, which relied on the incorrectly located corners, have
confused landowners in Barry and Stone Counties regarding the
location of private boundaries adjoining National Forest System
lands, and we believe Corps lands as well. Unfortunately, this
has led some of the affected adjoining landowners to believe
they own certain parts of federally managed public land.
The administration shares Senator Bond's concern that we
need to find an equitable way to resolve the problems facing
these landowners. For the Committee's information, I have
attached to my testimony, a January 22, 2003, letter from
Missouri State Land Surveyor to the Supervisor of the Mark
Twain National Forest describing the situation in Barry and
Stone Counties and the efforts of the Forest Service and the
Corps to correct the problems.
S. 1167, while attempting to resolve the boundary and
landownership issues with private adjoining landowners and the
Federal government, does not aid other private landowners in
the area with potential title claims and questionable
boundaries with adjoining private landowners. The unresolved
private title claims and questionable boundary locations
between numerous private landowners relying on federal land
surveys will encumber private land and title as long as the
corners are not corrected.
We would like to work with the Subcommittee to address our
concerns so that corrective land surveys are conducted and
correct boundaries can be established for all potentially
affected private land owners in Barry and Stone Counties, as
well as for agencies of the Federal Government. However, the
Department objects to the approach to this problem that S. 1167
would provide.
Our principal concern is that S. 1167 would transfer
Federal land, which is the property of all U.S. citizens, at no
cost. Since the passage in 1983 of the Small Tracts Act (Pub.
L. 97-465, Stat. 2535; 16 U.S.C. 521c-521i)(STA), the Forest
Service has had and has exercised the authority to resolve
innocent encroachments on National Forest System lands based on
erroneous land surveys or title opinions. With certain
modifications addressing the specific situation in this case,
we believe that the STA should be controlling here. Therefore,
we urge the Committee to amend S. 1167 to provide that the
affected landowners should apply to the Forest Service or the
Corps, as appropriate, to resolve their claims.
In the case of boundary conflicts on National Forest
Systems lands, under the STA, the Secretary has the authority
to sell, exchange, or interchange by quitclaim deed parcels of
forty acres or less which are interspersed with or adjacent to
lands which are determined by the Secretary, because of
location or size, not to be subject to efficient
administration; or parcels of ten acres or less which are
encroached upon by improvements occupied or used under claim or
color of title by persons to whom no advance notice was given
that the improvements encroached, or would encroach upon such
parcels, and who in good faith relied upon an erroneous survey,
title, search, or other land description indicating that there
was not such encroachment. The STA allows the Forest Service to
collect all reasonable costs (appraisals, surveys, title
research, etc.), as determined by the Secretary, from the
claimant for completing the STA application, including the
market value of the federal lands to be conveyed to the
claimant. The Forest Service may waive the payment of all
reasonable costs, except the market value of the federal lands
to be conveyed, when there is private encroachment of federal
lands in those cases in which the Secretary determines it would
be in the public interest.
Finally, while the matter of which Federal agency erred may
not be of particular concern to the affected landowners, we
believe any corrective legislation should appropriately
apportion responsibility for the problem. At this point, we
believe that the Corps should take the necessary actions to
correctly establish Public Land Survey System corners and the
Forest Service and the Corps should work together to resolve
tract-by-tract boundary conflicts in Barry and Stone counties
concurrently with the Corps' progress in correcting the
original surveys.
This concludes my statement. I would be pleased to answer
any questions that you may have.
CHANGES TO 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. 1167, as
ordered reported.