[Senate Report 109-146]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 238
109th Congress                                                   Report
                                 SENATE
 1st Session                                                    109-146

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                  BETTY DICK RESIDENCE PROTECTION ACT

                                _______
                                

                October 19, 2005.--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. 584]

    The Committee on Energy and Natural Resources, to which was 
referred the Act (S. 584) to require the Secretary of the 
Interior to permit continued occupancy and use of certain lands 
and improvements within Rocky Mountain National Park, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the Act, as amended, do pass.
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Betty Dick Residence Protection 
Act''.

SEC. 2. PURPOSE.

    The purpose of this Act is to require the Secretary of the Interior 
to permit the continued occupancy and use of the property described in 
section 4(b) by Betty Dick for the remainder of her natural life.

SEC. 3. DEFINITIONS.

    In this Act:
          (1) Agreement.--The term ``Agreement'' means the agreement 
        between the National Park Service and Fred Dick entitled 
        ``Settlement Agreement'' and dated July 17, 1980.
          (2) Map.--The term ``map'' means the map entitled ``RMNP Land 
        Occupancy'' and dated September 2005, which identifies 
        approximately 8 acres for the occupancy and use by the tenant.
          (3) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.
          (4) Tenant.--The term ``tenant'' means Betty Dick, widow of 
        George Fredrick Dick, who held a 25-year reservation of 
        occupancy and use at a property within the boundaries of Rocky 
        Mountain National Park.

SEC. 4. RIGHT OF OCCUPANCY.

    (a) In General.--The Secretary shall allow the tenant to continue 
to occupy and use the property described in subsection (b) for the 
remainder of the natural life of the tenant, subject to the 
requirements of this Act.
    (b) Description of Property.--The property referred to in 
subsection (a) is the land and any improvements to the land within the 
boundaries of Rocky Mountain National Park identified on the map as 
``residence'' and ``occupancy area''.
    (c) Terms and Conditions.--
          (1) In general.--Except as otherwise provided in this Act, 
        the occupancy and use of the property identified in subsection 
        (b) by the tenant shall be subject to the same terms and 
        conditions specified in the Agreement.
          (2) Payments.--
                  (A) In general.--In exchange for the continued 
                occupancy and use of the property, the tenant shall 
                annually pay to the Secretary an amount equal to \1/25\ 
                of the amount specified in section 3(B) of the 
                Agreement.
                  (B) Advance payment required.--The annual payments 
                required under subparagraph (A) shall be paid in 
                advance by not later than May 1 of each year.
                  (C) Disposition.--Amounts received by the Secretary 
                under this paragraph shall be--
                          (i) deposited in a special account in the 
                        Treasury of the United States; and
                          (ii) made available, without further 
                        appropriation, to the Rocky Mountain National 
                        Park until expended.
          (3) Public access.--The public shall have access to both 
        banks of the main channel of the Colorado River.
      (d) Termination.--The right of occupancy and use authorized under 
this Act--
          (1) shall not be extended to any individual other than the 
        tenant; and
          (2) shall terminate--
                  (A) on the death of the tenant;
                  (B) if the tenant does not make a payment required 
                under subsection (c)(2); or
                  (C) if the tenant otherwise fails to comply with the 
                terms of this Act.
    (e) Effect.--Nothing in this Act--
          (1) allows the construction of any structure on the property 
        described in subsection (b) not in existence on November 30, 
        2004; or
          (2) applies to the occupancy or use of the property described 
        in subsection (b) by any person other than the tenant.

                         PURPOSE OF THE MEASURE

    The purpose of S. 584 is to require the Secretary of the 
Interior to allow the continued occupancy and use of certain 
land and improvements within Rocky Mountain National Park.

                          BACKGROUND AND NEED

    Mrs. Betty Dick resides in a summer cabin within the 
boundary of Rocky Mountain National Park in the west unit near 
the town of Grand Lake. She is 83 years old and wishes to 
continue residing in the park for the remainder of her life. 
She acquired the right to use and occupy the property through 
inheritance from her late husband Fred Dick. The parcel she 
resides on was the object of a divorce settlement and partial 
acquisition by the National Park Service in 1977. The National 
Park Service (NPS) subsequently entered into a 25-year 
reservation of use and occupancy with the late Mr. Dick, which 
expired on July 16th, 2005. The NPS has agreed to allow Mrs. 
Dick to continue residing in her cabin for this summer. Mrs. 
Dick disputes the circumstances of the 25-year agreement and 
would like the NPS to grant her a life estate that she believes 
was the original intent of the 1980 agreement, notwithstanding 
the specific terms of the document. This legislation would 
grant Mrs. Dick that life estate.

                          LEGISLATIVE HISTORY

    S. 584 was introduced by Senator Salazar on March 9, 2005. 
A companion bill, H.R. 432, introduced by Representative Mark 
Udall, passed the House of Representatives on June 29, 2005.
    The Subcommittee on National Parks held a hearing on S. 584 
on July 28, 2005. At its business meeting on September 28, 
2005, the Committee on Energy and Natural Resources ordered S. 
584 favorably reported, with an amendment in the nature of a 
substitute.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on September 28, 2005, by a voice vote of a 
quorum present, recommends that the Senate pass S. 584, if 
amended as described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 584, the Committee adopted 
an amendment in the nature of a substitute. The amendment 
reduces the amount of land to be retained for use by Mrs. Dick 
from approximately 23 acres to 8 acres and ensures that the 
public shall have access to both banks of the main channel of 
the Colorado River. The amendment makes other technical and 
conforming changes and is described in detail in the section-
by-section analysis, below.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 entitles the bill the ``Betty Dick Residence 
Protection Act.''
    Section 2 sets forth congressional findings.
    Section 3 states the purpose of the Act is to require the 
Secretary of the Interior to permit Betty Dick to continue 
occupancy and use of the property for the remainder of her 
natural life.
    Section 4 defines key terms.
    Section 5 subsection (a) states the Secretary of the 
Interior shall allow Betty Dick to continue to occupy and use 
the property for the remainder of her life.
    Subsection (b) describes the property to be occupied and 
used by Betty Dick.
    Subsection (c) defines terms and conditions and specifies 
terms of payment for continued use and occupancy.
    Subsection (d) states that nothing in the Act will allow 
construction on the property and limits the occupancy of the 
property solely to Betty Dick.

                   COST AND BUDGETARY CONSIDERATIONS

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

S. 584--Betty Dick Residence Protection Act

    S. 584 would permit continued occupancy and the use of 
certain lands within Rocky Mountain National Park. 
Specifically, the bill would require the National Park Service 
(NPS) to extend the lease of 8 acres of public land to Betty 
Dick. CBO estimates that enacting those changes would have no 
significant impact on the federal budget.
    Under a 1980 Settlement Agreement, Betty Dick's right to 
lease the land in the Rocky Mountain National Park expired 
after 25 years on July 16, 2005. However, Ms. Dick is currently 
living on the property and is expected to leave for the winter 
in late October. S. 584 would require the NPS to allow Ms. Dick 
to lease part of the original property, which includes a 
seasonal residence and outbuildings, for the remainder of her 
life at a below market rental price of $300 per year.
    The NPS currently receives no payments for the property, 
although it received $7,500 in 1980 for a 25-year lease. NPS 
expects that the property could generate around $6,300 in 
annual rental receipts if the property was leased at market 
rates. Under current law, proceeds from rental agreements are 
available for the agency to spend without appropriation action. 
Thus, CBO estimates that enacting S. 584 would have no 
significant effect on the federal budget.
    S. 584 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 May 23, 2005, CBO transmitted a cost estimate for H.R. 
432, the Betty Dick Residence Protection Act, as ordered 
reported by the House Committee on Resources on May 18, 2005. 
The two pieces of legislation are similar and the cost 
estimates are identical.
    The CBO staff contact for this estimate is Matthew 
Pickford. 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. 584. 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 the 
enactment of S. 584, as ordered reported.

                        EXECUTIVE COMMUNICATIONS

    The views of the Administration on S. 584 were included in 
testimony received by the Committee at a hearing on the bill on 
July 28, 2005 and in a letter from the Director of the National 
Park Service dated September 22, 2005:

Statement of Stephen P. Martin, Deputy Director, National Park Service, 
                       Department of the Interior

    Mr. Chairman and members of the Subcommittee thank you for 
the opportunity to appear before you today to present the 
Department of the Interior's views on S. 584 and H.R. 432, 
bills that would require the Secretary of the Interior to 
permit continued occupancy and use of certain lands and 
improvements within Rocky Mountain National Park.
    The Department supports the general goal of S. 584 and H.R. 
432 to allow the National Park Service (NPS) to resolve the 
merits of Mrs. Betty Dick's desire to continue to live in the 
home inside Rocky Mountain National Park where she has lived 
for more than 25 years. Currently, the NPS does not have clear 
statutory authority to address these unique situations. In this 
testimony, we recommend certain amendments that will address 
both Mrs. Dick's needs while recognizing the public's purchase 
and ownership of this property.
    As drafted, the pending legislation will only address Mrs. 
Dick's unique situation. The Department also would be willing 
to work with the Committee to develop a broader solution, one 
that would provide NPS with clear statutory authority to 
address expiring reservations of use and occupancy in other 
situations with similar merit. We look forward to working with 
the Committee on this issue.
    On April 14, 2005, the Department testified in opposition 
to H.R. 432 at a hearing before the House Subcommittee on 
National Parks. However, since that time, the Department has 
recognized the need for a broader solution in light of the 
several hundred reservations of use and occupancy that will 
expire over the next 10 years. Some of these existing 
reservations may present circumstances similar in merit to Mrs. 
Dick's.
    S. 584 and H.R. 432 would allow the continued use and 
occupancy of land within Rocky Mountain National Park by Betty 
Dick for the remainder of her life. The bills also state that 
the use and occupancy of the land would be governed by the 
conditions stated in the 1980 settlement agreement. Under these 
conditions, Betty Dick would be required to make an annual 
payment of $300 to the Secretary of the Interior and she would 
be prohibited from constructing any new structures on the 
property.
    We regret the difficult situations that sometimes arise 
from the expiration of private use and occupancy leases located 
within National Parks. Mrs. Dick has been a model tenant in 
Rocky Mountain National Park. The park has always enjoyed, and 
continues to enjoy, a congenial relationship with her, and she 
is a familiar summer resident of the Grand Lake community 
opening her home to park staff and residents of the community 
alike. Park staff always feel welcome in Mrs. Dick's home and 
have frequently stopped by to discuss this issue and other 
items of mutual interest relating to the park.
    The situation that is the subject of these bills is the 
result of a commitment made by Mr. Dick, Mrs. Dick's late 
husband, to vacate the property that he sold to the NPS 25 
years ago. We understand and appreciate that this commitment 
has caused anxiety and stress for Mrs. Dick.
    In 1977, the NPS purchased 66.5 acres from Marilyn Dick, 
the ex-wife of George Fredrick Dick for $214,000. The title 
company that handled the transaction overlooked the fact that 
Mr. Dick had retained a right of first refusal to purchase the 
property if his ex-wife ever decided to sell. Mr. Dick sued the 
NPS and his former wife in U.S. District Court. In a legally 
binding Memorandum of Settlement Agreement, signed by the 
parties in 1980, the NPS retained ownership of the property and 
agreed to lease approximately 23 acres to Mr. Dick and his 
heirs for a period of 25 years for $7,500, which equates to 
$300 per year. Mr. Dick died in 1992. His second wife, Betty 
Dick, survives him and now occupies the premises during the 
summer months. As the heir of Mr. Dick, Betty Dick had a 
leasehold interest in the property that expired July 16, 2005.
    Mrs. Dick has contacted the NPS about extending her use and 
occupancy on a preferential basis for the remainder of her 
life. The NPS lacks the authority to grant such an extension 
either through existing leasing authority or special use permit 
authority. NPS does have the authority to issue leases 
competitively in most circumstances; issuing leases 
noncompetitively is limited to leases to units of government or 
non-profit organizations under certain circumstances. NPS is 
also required to charge rent at least equal to fair market 
value, and the rent payment is kept by the park.
    NPS cannot issue special use permits to extend use and 
occupancy for a life term under current authorities. However, 
NPS does have authority under certain circumstances to issue a 
two-year special use permit, with the possibility of re-
issuance as long as the justifying circumstances apply, that 
would allow an individual with an expired use and occupancy to 
remain on the premises. Some of the criteria include situations 
in which NPS would be unable to remove the structure for a 
significant period of time (e.g., because of the need to 
complete planning requirement or the lack of available funds); 
the structure has or may have historical significance that 
would be endangered if vacated; or termination of residency 
would create undue hardship to the occupant (this provision 
requires the structure to be the primary residence of the 
individual). Special use permits also may only be issued for 
rent equal to the fair market value rent for the property, and 
the rent would be deposited in the U.S. Treasury. Under our 
current authority, we have offered Mrs. Dick such a special use 
permit that allows her to remain on her property for a period 
of time while NPS conducts a planning process to consider the 
options and determine an appropriate use for the property 
taking into account the interests of American taxpayers and 
park visitors, and park resources.
    Mrs. Dick has verbally indicated that she will not accept 
the offer of a special use permit because it does not address 
her request for a life estate. A written offer has been sent to 
her that asks for her reconsideration of the NPS offer. While 
she has not yet responded to the request for reconsideration, 
she has accepted our offer to remain at her summer home for the 
remainder of this season as we await the outcome of the pending 
legislation. In accepting this offer, Mrs. Dick has stated her 
appreciation to park staff for allowing her to continue her 
normal routine for this summer.
    The Department would support S. 584 and H.R. 432, if 
amended in a way that balances the merits of Mrs. Dick's 
situation with the public's interest in this property, which 
was purchased and is owned for the benefit of the American 
people. First, the Department would recommend that the bills be 
amended to reduce the acreage she occupies from 23 acres to 
approximately three to five acres that contain the house and 
outbuildings and her access to the Colorado River. The balance 
of the property would then be available for park visitors, 
including access to the river. This would require producing a 
new map, which we would be happy to provide to Mrs. Dick and to 
the public.
    In addition, we suggest that Mrs. Dick's continued 
occupancy of the property should be subject to fair market 
value rent, based upon an appraisal of the property, with the 
rent being retained by the park.
    Finally, we suggest that the bill be amended to name Mrs. 
Dick as the sole beneficiary of the legislation, and that 
language be added to allow the termination of the lease in the 
event that Mrs. Dick is no longer able to use the property in 
the summer or is unable or unwilling to pay the annual fees. We 
would be happy to work with the Subcommittee staff to develop 
these amendments.
    Throughout the country, there are many instances where the 
NPS has purchased private inholdings and permitted former 
landowners to remain on the property for a period of time, 
usually 25 years, through a ``Reservation of Use and 
Occupancy.'' The United States pays a reduced purchase price to 
account for the value of the retained use. This acquisition 
tool saves taxpayer dollars and allows the former owner to 
continue to enjoy the property for a set period of time. As we 
noted earlier, the Department also would like to work with the 
Committee to develop a broader solution--one that would provide 
the NPS with clear statutory authority to address the expiring 
reservations of use and occupancy in situations where there is 
merit. We look forward to working with the Committee on this 
effort.
    That concludes my remarks. Mr. Chairman, I would be happy 
to answer any questions you or other members of the 
Subcommittee may have.


                        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. 584, as ordered 
reported.

                                  
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