[Senate Report 108-234]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 444
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-234

======================================================================



 
                   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.

                                
