[Senate Report 118-132]
[From the U.S. Government Publishing Office]
Calendar No. 276
118th Congress } { Report
SENATE
1st Session } { 118-132
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NORTH DAKOTA TRUST LANDS COMPLETION ACT OF 2023
_______
December 12, 2023.--Ordered to be printed
_______
Mr. Manchin, from the Committee on Energy and Natural
Resources, submitted the following
R E P O R T
[To accompany S. 1088]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1088) to authorize the relinquishment and
in lieu selection of land and minerals in the State of North
Dakota, to restore land and minerals to Indian Tribes within
the State of North Dakota, and for other purposes, having
considered the same, reports favorably thereon with an
amendment, in the nature of a substitute, and recommends that
the bill, as amended, do pass.
AMENDMENT
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``North Dakota Trust Lands Completion
Act of 2023''.
SEC. 2. DEFINITIONS.
In this Act:
(1) North dakota enabling act.--The term ``North Dakota
Enabling Act'' means the Act of February 22, 1889 (25 Stat.
676, chapter 180).
(2) Reservation.--The term ``reservation'' means any Indian
reservation located wholly or partially within the State of
North Dakota and recognized under United States treaty,
Executive order, or Act of Congress.
(3) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(4) State.--The term ``State'' means the State of North
Dakota, acting through the North Dakota Board of University and
School Lands and its agent, the Department of Trust Lands.
(5) State land grant parcel.--The term ``State land grant
parcel'' means--
(A) a parcel of land granted to the State of North
Dakota by Congress--
(i) on statehood; or
(ii) through a grant pursuant to the North
Dakota Enabling Act;
(B) a section of land numbered 16 or 36 granted to
the State of North Dakota by Congress for school
purposes;
(C) a parcel of land selected by the State of North
Dakota as indemnity for any section of land numbered 16
or 36; and
(D) a parcel of land other than a parcel of land
described in subparagraph (A), (B), or (C) obtained by
the State after statehood.
(6) Unappropriated federal land.--
(A) In general.--The term ``unappropriated Federal
land'' means public land administered by the Bureau of
Land Management located within the State of North
Dakota, including public land that is mineral in
character.
(B) Exclusions.--The term ``unappropriated Federal
land'' does not include--
(i) land (including an interest in land)
acquired by the Bureau of Land Management;
(ii) any area of critical environmental
concern established pursuant to section
202(c)(3) of the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1712(c)(3));
or
(iii) land that is--
(I) withdrawn from--
(aa) entry, appropriation, or
disposal under the public land
laws;
(bb) location, entry, and
patent under the mining laws;
or
(cc) disposition under all
laws pertaining to mineral and
geothermal leasing or mineral
materials;
(II) located within a component of
the National Landscape Conservation
System;
(III) designated as a Research
Natural Area;
(IV) located within any reservation;
(V) located within--
(aa) T. 147 N., R. 95 W.;
(bb) T. 148 N., R. 95 W.;
(cc) T. 148 N., R. 96 W.; or
(dd) T. 149 N., R. 95 W.;
(VI) located within a United States
military reservation; or
(VII) designated by Congress or the
President for conservation purposes.
SEC. 3. RELINQUISHMENT AND SELECTION; CONVEYANCE.
(a) Relinquishment and Selection.--
(1) In general.--Subject to valid existing rights, if the
State elects to relinquish all right, title, and interest of
the State in and to a State land grant parcel located wholly or
partially within the boundaries of any reservation, the
Secretary shall authorize the State to select in accordance
with this Act 1 or more parcels of unappropriated Federal land
of substantially equivalent value.
(2) Approval.--Not later than 180 days after the date on
which the State makes a selection under paragraph (1), the
Secretary shall approve or reject, in whole or in part, the
selection.
(3) Review.--Nothing in this subsection precludes the
Secretary from conducting an environmental review of any parcel
proposed for relinquishment under paragraph (1) if the
Secretary determines that an environmental review is
appropriate.
(b) Conveyance.--
(1) Conveyance by secretary.--
(A) In general.--Not later than 60 days after the
date on which the Secretary approves a State selection
of unappropriated Federal land under subsection (a)(2),
the Secretary shall initiate the actions necessary to
convey to the State the unappropriated Federal land.
(B) Requirements.--Conveyance of unappropriated
Federal land by the Secretary under this Act--
(i) shall be by patent or deed in a form
acceptable to the State and the Secretary; and
(ii) shall not be considered a sale,
exchange, or conveyance for purposes of section
203, 205, 206, or 209 of the Federal Land
Policy and Management Act of 1976 (43 U.S.C.
1713, 1715, 1716, 1719).
(2) Relinquishment and conveyance by state.--
(A) In general.--As consideration for the conveyance
of unappropriated Federal land under paragraph (1), on
the date on which the unappropriated Federal land is
conveyed to the State, the State shall concurrently
relinquish and convey to the Secretary all right,
title, and interest of the State in and to the State
land grant parcel identified for relinquishment under
subsection (a)(1).
(B) Title.--The State shall convey to the Secretary
title, free of any financial claims, liabilities, or
other financial encumbrances, to all parcels
relinquished under subparagraph (A).
(C) Limitation.--Relinquishment and conveyance by the
State of a State land grant parcel under this Act shall
not be considered an exchange or acquisition for
purposes of section 205 or 206 of the Federal Land
Policy and Management Act of 1976 (43 U.S.C. 1715,
1716).
(c) Succession to Rights and Obligations.--Each party to which land
is conveyed under this Act shall, to the fullest extent allowable under
Federal and State law, succeed to the rights and obligations of the
conveying party with respect to any lease, right-of-way, permit, or
other valid existing right to which the land is subject.
(d) Management After Relinquishment.--
(1) Reservation.--If a State land grant parcel relinquished
by the State and conveyed to the Secretary under this Act is
located wholly or partially within the boundaries of any
reservation, on request of the applicable Indian Tribe, the
portion of the State land grant parcel located within the
boundaries of the reservation shall be--
(A) taken into trust by the Secretary on behalf of,
and for the benefit of, the Indian Tribe on the date of
the conveyance; and
(B) considered to be a part of the reservation of the
Indian Tribe.
(2) Consultation required.--Prior to the conveyance of a
State land grant parcel located wholly or partially within the
boundaries of any reservation, the State and the Secretary
shall consult with affected Indian Tribes, including the Indian
Tribe the land of which is subject to conveyance in accordance
with Executive Order 13175 (25 U.S.C. 5301 note; relating to
consultation and coordination with Indian tribal governments)
and other applicable laws.
(e) Withdrawal.--
(1) In general.--Subject to valid rights in existence on the
date of enactment of this Act, all unappropriated Federal land
selected by the State for conveyance under this Act, effective
beginning on the date on which the State makes the selection
and ending on the date described in paragraph (2), is withdrawn
from all forms of--
(A) entry, appropriation, or disposal under the
public land laws;
(B) location, entry, and patent under the mining
laws; and
(C) disposition under all laws pertaining to mineral
and geothermal leasing or mineral materials.
(2) Date described.--The date referred to in paragraph (1) is
the date on which, as applicable--
(A) the unappropriated Federal land is conveyed by
the Secretary to the State;
(B) the Secretary rejects the selection under
subsection (a)(2); or
(C) the State withdraws the selection.
SEC. 4. VALUATION.
(a) Equal Value.--With respect to a State land grant parcel
conveyed under this Act in consideration for a parcel of unappropriated
Federal land selected in accordance with this Act--
(1) the overall value of the State land grant parcel and the
overall value of the parcel of unappropriated Federal land
shall be substantially equal; or
(2) subject to subsection (c), if the overall value of the
parcels is not equal, the party conveying the parcel of lesser
value shall--
(A) equalize the value by the payment of funds to the
other party; or
(B) enter the imbalance in value on a ledger account
in accordance with subsection (e).
(b) Appraisal Required.--
(1) In general.--Except as provided in subsection (d), the
value of the unappropriated Federal land selected in accordance
with this Act and the value of a State land grant parcel
conveyed under this Act shall be determined by appraisals
conducted by 1 or more independent appraisers selected jointly
by the Secretary and the State.
(2) Requirements.--An appraisal under paragraph (1) shall be
completed in accordance with--
(A) the Uniform Appraisal Standards for Federal Land
Acquisitions; or
(B) subject to subsection (d)(1), the Uniform
Standards for Professional Appraisal Practice.
(c) Equalization.--With respect to a conveyance to the Secretary of
a State land grant parcel of lesser value than the parcel of
unappropriated Federal land to be conveyed to the State under this Act,
the total value of the equalization payment described in subsection
(a)(2)(A) or the ledger entry described in subsection (e), as
applicable, may not exceed 25 percent of the total value of the parcel
of unappropriated Federal land.
(d) Low Value Parcels.--
(1) In general.--The Secretary, with the consent of the
State, may use mass appraisals, a summary appraisal, or a
statement of value made by a qualified appraiser carried out in
accordance with the Uniform Standards for Professional
Appraisal Practice to determine the value of a State land grant
parcel or a parcel of unappropriated Federal land to be
conveyed under this Act instead of an appraisal that complies
with the Uniform Appraisal Standards for Federal Land
Acquisitions if the State and the Secretary agree that market
value of the State land grant parcel or parcel of
unappropriated Federal land, as applicable, is--
(A) less than $500,000; and
(B) less than $500 per acre.
(2) Division.--A State land grant parcel or a parcel of
unappropriated Federal land may not be artificially divided in
order to qualify for a summary appraisal, mass appraisal, or
statement of value under paragraph (1).
(e) Ledger Accounts.--
(1) In general.--With respect to a State land grant parcel
conveyed under this Act in consideration for a parcel of
unappropriated Federal land, if the overall value of the
parcels is not equal, the Secretary and the State may agree to
use a ledger account to make equal the value.
(2) Imbalances.--A ledger account described in paragraph (1)
shall reflect imbalances in value to be reconciled in a
subsequent transaction.
(3) Account balancing.--Each ledger account described in
paragraph (1) shall be--
(A) balanced not later than 3 years after the date on
which the ledger account is established; and
(B) closed not later than 5 years after the date of
the last conveyance of land under this Act.
(4) Costs.--
(A) In general.--The Secretary or the State may
assume costs or other responsibilities or requirements
for conveying land under this Act that ordinarily are
borne by the other party.
(B) Adjustment.--If the Secretary or the State assume
costs or other responsibilities under subparagraph (A),
the Secretary or the State shall make adjustments to
the value of the unappropriated Federal land conveyed
to the State to compensate the Secretary or the State,
as applicable, for assuming the costs or other
responsibilities.
(5) Mineral land.--If value is attributed to any parcel of
unappropriated Federal land that has been selected by the State
because of the presence of minerals under a lease entered into
under the Mineral Leasing Act (30 U.S.C. 181 et seq.) that is
in a producing or producible status, and the lease is to be
conveyed under this Act, the value of the parcel shall be
reduced by the amount that represents the likely Federal
revenue sharing obligation under the Mineral Leasing Act (30
U.S.C. 181 et seq.) with the State, but the adjustment shall
not be considered as reflecting a property right of the State.
SEC. 5. MISCELLANEOUS.
(a) In General.--Land or minerals conveyed under this Act shall be
subject to all applicable Federal, State, and Tribal law.
(b) Protection of Indian Rights.--
(1) Treaty rights.--Nothing in this Act modifies, limits,
expands, or otherwise affects any treaty-reserved right or
other right of any Indian Tribe recognized by any other means,
including treaties or agreements with the United States,
Executive orders, statutes, regulations, or case law.
(2) Land or minerals held in trust.--Nothing in this Act
affects--
(A) land or minerals held in trust by the United
States as of the date of enactment of this Act on
behalf of, and for the benefit of, any Indian Tribe; or
(B) any individual Indian allotment.
(c) Hazardous Materials.--
(1) In general.--The Secretary and the State shall make
available for review and inspection any record relating to
hazardous materials on land to be conveyed under this Act.
(2) Certification.--
(A) In general.--Prior to completing a conveyance of
unappropriated Federal land under this Act, the
Secretary shall complete an inspection and a hazardous
materials certification of the land to be conveyed.
(B) State land grant parcels.--Prior to completing a
conveyance of a State land grant parcel under this Act,
the State shall complete an inspection and a hazardous
materials certification of the land to be conveyed.
(d) Grazing Permits.--
(1) In general.--If land conveyed under this Act is subject
to a lease, permit, or contract for the grazing of domestic
livestock in effect on the date of the conveyance, the
Secretary or the State, as applicable, shall allow the grazing
to continue for the remainder of the term of the lease, permit,
or contract, subject to the related terms and conditions of the
user agreements, including permitted stocking rates, grazing
fee levels, access, and ownership and use of range
improvements.
(2) Cancellation.--
(A) In general.--Nothing in this Act prevents the
Secretary or the State from canceling or modifying a
grazing permit, lease, or contract if the land subject
to the permit, lease, or contract is sold, conveyed,
transferred, or leased for nongrazing purposes.
(B) Base properties.--If land conveyed by the State
under this Act is used by a grazing permittee or lessee
to meet the base property requirements for a Federal
grazing permit or lease, the land shall continue to
qualify as a base property for the remaining term of
the lease or permit and the term of any renewal or
extension of the lease or permit.
(C) Range improvements.--Nothing in this Act
prohibits a holder of a grazing lease, permit, or
contract from being compensated for range improvements
pursuant to the terms of the lease, permit, or contract
under existing Federal or State laws.
SEC. 6. SAVINGS CLAUSE.
Nothing in this Act applies to or affects litigation or disputes
pending on the date of enactment of this Act regarding the ownership of
any land or mineral resources located within the State of North Dakota.
PURPOSE
The purpose of S. 1088 is to authorize the State of North
Dakota to relinquish State lands and minerals located within
Indian Reservations in the State of North Dakota and make in
lieu selections from other unappropriated Federal lands in the
State, and to restore the relinquished land and minerals to the
Tribes in whose reservations the relinquished State lands are
located.
BACKGROUND AND NEED
When North Dakota became a state in 1889, the enabling
legislation (25 Stat. 676) provided two sections of land
(generally sections 16 and 36) in each township to be used
``for the support of the common schools'' (often referred to as
State trust lands).
In cases where these sections had been sold or granted
prior to statehood, the Federal government granted North Dakota
other unreserved federal lands in lieu of the non-available
sections. Today, the State manages approximately 2.6 million
acres of subsurface mineral rights and 706,000 acres of trust
surface lands in North Dakota. Although the Enabling Act
prohibited the granting of State trust lands or in lieu
selections within Indian reservations, following the passage of
the General Allotment Act of 1887, commonly known as the Dawes
Act (24 Stat. 388), and the subsequent allotment of the
reservations, the State eventually acquired approximately
130,000 acres of subsurface mineral rights and 31,000 acres of
surface estate within Indian Reservations. The State contends
that the inclusion of these lands within the tribal reservation
boundaries limits the ability of the State to develop the land
and subsequently generate revenue for public schools and other
programs.
S. 1088 authorizes the State to relinquish State-owned
lands and minerals within the exterior boundaries of Indian
Reservations in the State, and to make in lieu selections from
other unappropriated Federal lands in the State. Any
relinquished lands would be held in Trust for the Tribe in
whose reservations the relinquished State lands are located.
LEGISLATIVE HISTORY
S. 1088 was introduced by Senators Hoeven and Cramer on
March 30, 2023. The Subcommittee on Public Lands, Forests, and
Mining held a hearing on S. 1088 on July 12, 2023.
Companion legislation, H.R. 2405, was introduced by
Representative Armstrong in the House of Representatives on
March 30, 2023. Similar legislation, S. 3200, was introduced in
the 117th Congress by Senators Hoeven and Cramer on November 4,
2021.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on September 21, 2023, by a voice vote of
a quorum present, recommends that the Senate pass S. 1088, if
amended as described herein.
COMMITTEE AMENDMENT
During its consideration of S. 1088, the committee adopted
an amendment in the nature of a substitute. The amendment
removes the findings section and makes clarifying changes to
the definitions. It also makes other conforming changes to the
bill. The amendment is explained in detail in the section-by-
section analysis below.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 provides the short title of the bill, the ``North
Dakota Trust Lands Completion Act of 2023.''
Section 2. Definitions
Section 2 defines key terms used in the bill.
Section 3. Relinquishment and selection; Conveyance
Subsection (a) states that the Secretary of the Interior
(Secretary) may authorize the State of North Dakota (State) to
relinquish certain State land grant parcels located wholly or
partially within the boundaries of any Indian Reservation in
the State, and in lieu of the relinquished land select one or
more parcels of unappropriated Federal land of substantially
equal value, not later than 180 days on the date in which the
State makes a selection. The subsection clarifies that nothing
in this subsection precludes the Secretary from conducting an
environmental review of any proposed parcel relinquishment.
Subsection (b) requires the Secretary to initiate the
conveyance of unappropriated Federal land selected by the State
within 60 days after the date the Secretary approves the
selection, by patent or deed in a form acceptable to the
Secretary and the State. The subsection also requires the State
to concurrently relinquish and convey title to the State land
grant parcels, free and clear of any financial claims,
liabilities, or other financial encumbrances.
Subsection (c) states that each party to which land is
conveyed under this Act shall succeed to the rights and
obligations of the conveying party with respect to any lease,
right-of-way, permit, or other valid existing right to which
the land is subject.
Subsection (d) states that, on request from the applicable
Tribe, any parcel relinquished by the State that is located
wholly or partially within the boundary of an Indian
reservation, shall be taken into trust by the Secretary on
behalf of the Tribe and be considered to be part of the
reservation. The subsection also requires that prior to any
land conveyance, the State and the Secretary consult with the
affected Indian Tribe.
Subsection (e) withdraws, subject to valid existing rights,
all unappropriated Federal land selected by the State for
conveyance from public land laws, mining laws, and mineral,
material, and geothermal leasing laws.
Section 4. Valuation
Subsection (a) requires that any State and Federal land
parcel subject to conveyance be of substantially equal value
and if not equal, the party conveying the less valued parcel
equalize the value by payment and record the imbalance on a
ledger account.
Subsection (b) requires an appraisal of the land parcels
subject to conveyance to be conducted by one or more
independent appraisers selected jointly by the Secretary and
the State, and that such appraisals shall be subject to the
Uniform Appraisal Standards for Federal Land Acquisitions or
the Uniform Standards for Professional Appraisal Practice.
Subsection (c) requires that any cash equalization payments
may not exceed 25 percent of the total value of the parcel of
unappropriated Federal land.
Subsection (d) authorizes the Secretary to use mass
appraisals, a summary appraisal, or a statement of value by a
qualified appraiser carried out in accordance with the Uniform
Standards for Professional Appraisal Practice, rather than
appraisal practices of Federal Land Acquisitions if the parcel
of Federal land is less than $500,000 and less than $500 per
acre.
Subsection (e) authorizes the Secretary and the State, if
land parcels are not of equal value, to agree to use a ledger
account to equalize the overall value of land. The subsection
also authorizes the State and the Secretary to assume costs or
other requirements for conveying land that could be borne by
the other party and is authorized to adjust the value of
unappropriated Federal land parcels to properly compensate each
party. Lastly, the subsection requires that if any parcel's
value is selected due to the presence of minerals, that the
value of the parcel be reduced by applicable revenue sharing
obligations under the Mineral Leasing Act.
Section 5. Miscellaneous
Subsection (a) clarifies that any land or minerals conveyed
under this Act be subject to all applicable Federal, State, and
Tribal law.
Subsection (b) provides that nothing contained in the bill
affects any treaty-reserved rights or other rights of any
Indian Tribe. It also states that nothing contained in the bill
will affect land or minerals held in trust by the United
States, or any individual Indian allotment.
Subsection (c) requires the Secretary and the State to make
available any record relating to hazardous materials on land to
be conveyed. It also requires that a hazardous materials
inspection and certification be conducted on Federal and State
land prior to completing any conveyance.
Subsection (d) authorizes the continuance of any grazing
permit or lease on conveyed land for the remainder of its term.
The subsection clarifies that nothing in this Act prevents the
Secretary or the State from canceling or modifying a grazing
permit if the land is conveyed.
Section 6. Saving clause
Section 6 provides a savings clause that states that
nothing in this Act applies to or affects litigation or
disputes on the date of enactment regarding ownership of any
land or mineral resources located in the State.
COST AND BUDGETARY CONSIDERATIONS
The Committee has requested, but has not yet received, the
Congressional Budget Office's estimate of the cost of S. 1088
as ordered reported. When the Congressional Budget Office
completes its cost estimate, it will be posted on the Internet
at www.cbo.gov.
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. 1088. 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. 1088, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 1088, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
The testimony provided by the Bureau of Land Management at
the Subcommittee on Public Lands, Forests, and Mining July 12,
2023, hearing on S. 1088, follows:
Statement of Thomas Heinlein Assistant Director for National
Conservation Lands & Community Partnerships, Bureau of Land Management,
U.S. Department of the Interior
s. 1088, north dakota trust lands completion act
S. 1088 would authorize the State of North Dakota to
relinquish to the Secretary of the Interior certain lands and
mineral estates that are located partially or wholly within the
boundaries of four Tribal reservations in the state, to the
extent such lands or mineral estates were conveyed to the state
at statehood. The bill would apply to up to approximately
37,000 surface acres and 186,000 total mineral acres. If the
State elects to relinquish a parcel, the bill authorizes the
State to select one or more parcels of BLM-managed public land
or mineral estate of substantially equivalent value within the
State of North Dakota. The bill further directs the Secretary
to, upon request of a Tribe, take into trust relinquished lands
or mineral estates within the boundaries of a reservation.
The BLM generally supports the conveyance of public lands
when such conveyances are in the public interest and consistent
with publicly approved land use plans. In addition, the BLM is
committed to managing public lands and minerals in a manner
that seeks to protect the treaty, religious, subsistence, and
cultural interests of Federally recognized Tribes, consistent
with the BLM's mission and applicable law. By placing lands
into trust status through the Department, Tribes are able to
reacquire lands within or near their reservations, establish a
land base for Tribal communities, and clarify jurisdiction over
their lands.
The BLM supports the Sponsor's goal of addressing the
patchwork of inholdings within existing reservation boundaries.
The BLM would like to work with the Sponsor to clarify the
intent of several of the bill's provisions and the mechanisms
outlined in the bill for effectuating the proposed conveyances.
Analysis
The North Dakota Enabling Act, enacted in 1889, provided
for the division of what was then known as Dakota into two
states--North Dakota and South Dakota. It also enabled the
people of North Dakota and South Dakota, as well as the states
of Montana and Washington, to form constitutions and state
governments. The Act granted, with certain exceptions, sections
16 and 36 in every township to the new states to support
schools. Under the Act, the State of North Dakota was granted
lands and minerals totaling more than 2.5 million acres.
Many of the land grant parcels are located within Tribal
reservation boundaries. Specifically, 3,612 surface acres and
74,888 total subsurface acres are located within the Fort
Berthold Indian Reservation; 24,179 surface acres and 74,717
total subsurface acres are located within the Standing Rock
Indian Reservation; 9,379 surface acres and 36,338 total
subsurface acres are located within the Fort Totten Indian
Reservation; and 72 surface acres and 639 total subsurface
acres are located within the Sisseton-Wahpeton Indian
Reservation. There are no state land grant parcels located
within the Turtle Mountain Indian Reservation. In total, there
are approximately 37,000 surface acres and 186,000 total
mineral acres located within the boundaries of the five Tribal
reservations in the state.
The BLM notes that it manages only approximately 58,000
surface acres in North Dakota, which would constrain the BLM's
ability under the bill to convey surface acres should the State
select surface acres in exchange for relinquishing state land
grant parcels. Should the State focus on obtaining Federal
minerals via selection of subsurface lands, the BLM notes that
a large majority of the Federal oil and gas minerals in North
Dakota are leased, and thus are encumbered by valid existing
rights. We would like to work with the Sponsor to clarify which
Federal mineral estate would be eligible for transfer and
whether any additional exclusions should be included in the
bill. We also recommend further coordination with the U.S.
Department of Agriculture (USDA) particularly if surface
management of the National Forest System lands might be
affected.
Parcel Selection Process
S. 1088 authorizes the State of North Dakota to select one
or more parcels of BLM-managed public land of substantially
equivalent value within the State in exchange for relinquishing
to the Department all right, title, and interest of a state
land grant parcel located wholly or partially within the
boundaries of any Tribal reservation. Under the bill, the
Secretary must approve or reject the State's selection within
90 days, and if approved, must initiate the process of
conveying the selected parcel to the State within 60 days. The
bill stipulates that the conveyance shall not be considered a
sale, exchange, or conveyance under section 203, 205, 206, or
209 of FLPMA.
After selection and approval, the bill requires that
relinquished state land grant parcels located within the
boundaries of a Tribal reservation be taken into trust by the
Secretary for the benefit of that Tribe, upon the request of
the Tribe. Prior to the conveyance of such a parcel, the State
and the Secretary are required to consult with the Tribe that
has the subject land grant parcel within its reservation
boundaries.
The BLM notes that although the bill stipulates that the
conveyances would not be considered a sale, exchange, or
conveyance under FLPMA, there are necessary procedures and
compliance actions required to convey ownership. While the BLM
recognizes the Sponsor's intent to simplify the conveyance
process for the purposes of the bill, the BLM would like to
work with the Sponsor to ensure any lands selected by North
Dakota go through an appropriate review process. In addition,
the BLM would like to work with the Sponsor to include all
affected Tribes in the Tribal consultation process, and not
limit consultation to only the Tribe with the state land grant
inholding to be conveyed, as Tribal consultation is an
important process that should involve Tribes impacted by a
Federal action, consistent with applicable law and regulation.
Existing Uses
The bill permits the State to select, and the Secretary to
convey, BLM-managed public lands that are subject to a mineral
lease or permit issued under the Mineral Leasing Act or in a
producing or producible status during the 10-year period
following enactment. The State would also be authorized to
select BLM-managed land that is ``mineral in character,'' on
the condition that, if subject to an existing lease or permit,
the Secretary shall reserve an overriding interest in the
portion of the mineral estate that is subject to a mineral
lease, and such a selection shall not include any portion of
the mineral lease or permit. The bill allows the conveyance of
the Federal surface interest of land subject to a mineral lease
but requires all Federal mining claims to be converted to State
leases and provides that the State will assume all authority
over any authorizations or obligations applicable to a
relinquished Federal mining claim. Under the bill, all BLM-
managed parcels selected by the State for conveyance would be
withdrawn from operation of the public land laws, mining laws,
and mineral leasing laws, with the withdrawal ending on the
date the land is conveyed to the State or the date that the
selection is rejected.
Regarding all existing uses, section 4(c) of the bill
states that each party to an exchange shall, to the fullest
extent allowable under Federal and state law, assume the rights
and obligations of the conveying party with respect to any
lease, right-of-way, permit, or other valid existing rights.
The bill specifically provides for continuance of Federal
grazing permits by requiring the Secretary and the State to
allow the grazing to continue for the remainder of the permit
or lease term. Further, the bill stipulates that if a parcel
conveyed by the State is used to meet the base property
requirements for a Federal grazing permit or lease, the land
shall continue to qualify as a base property for the remainder
of the term of the permit or lease, as well as for the term of
any renewal or extension.
The BLM notes that while several of the bill's provisions
refer to ``Federal mining claims,'' there are currently no
Federal locatable mining claims in North Dakota. The BLM
recommends the Sponsor clarify the intent of these provisions.
In addition, it is unclear what would constitute the
``overriding interest'' reserved by the Secretary in mineral
estate subject to a lease. The BLM recommends that the Sponsor
further define what is considered an overriding interest, as
well as the mechanism for its reservation. Further, the BLM
recommends the Sponsor clarify whether the overriding interest
reserved by the Secretary would supersede the bill's direction
that each party is to succeed to the rights and obligations of
the conveying party with respect to any lease, right-of-way,
permit, or other valid existing right to which the land is
subject--particularly given other provisions directing
conversion of all Federal mining claims to state leases.
The BLM appreciates the Sponsor's attention to the
disposition of existing grazing operations in the bill. The BLM
notes that it may still be required to comply with regulations
requiring two years notice of lease cancellation, and
cooperative range improvements may also require refunds based
on valuation and depreciation schedules. The Department also
recommends that the Sponsor work with the Bureau of Indian
Affairs to clarify future management of state grazing leases on
the lands to be held in trust for the benefit of a Tribe.
Lastly, the BLM notes that the savings clause in section 7
of the bill states that ``nothing in this Act applies to or
impacts the ownership of any land or mineral resources.'' The
BLM recommends that the Sponsor clarify the intent of the
savings clause, given the conveyances of ownership of land and
mineral resources directed by the bill.
Valuation of Parcels
Under the bill, state land grant parcels conveyed for a
parcel of Federal land must be ``substantially equal in
value.'' The bill requires the Secretary to determine the
values of both the state land grant parcel and the BLM-managed
parcel to be conveyed through an appraisal completed in
accordance with the Uniform Appraisal Standards for Federal
Land Acquisitions.
The bill further authorizes the Secretary, with the consent
of the State, to use mass appraisals, a summary appraisal, or a
statement of value made by a qualified appraiser to determine
the value of a parcel using the Uniform Standards for
Professional Appraisal Practice, if both parties agree that the
market value of the parcel is less than $500,000 and less than
$500 per acre.
For the value of a Federal parcel that is attributed to the
existence of a mineral lease and the lease is to be conveyed,
the bill requires that the value of the parcel be reduced by
the amount that represents the likely Federal revenue sharing
obligation under the Mineral Leasing Act. The bill stipulates
that such an adjustment is not to be considered as a property
right of the State.
If the overall value of the parcels to be conveyed is not
equal, the bill requires the party conveying the parcel of
lesser value to equalize the value by payment of funds to the
other party. The bill also allows the party conveying the
parcel of lesser value to enter the imbalance in value in a
ledger account established by the bill. The ledger account must
reflect imbalances in value to be reconciled in a subsequent
transaction, balanced not later than three years after the date
on which the ledger account is established, and closed not
later than five years after the date of the last conveyance of
land under the bill. Regarding costs and other requirements of
conveyance, the bill authorizes the State or the Secretary to
assume costs, responsibilities, or requirements for conveying
land under the bill that are ordinarily borne by the other
party. The parties are directed to make adjustments to the
value of the Federal parcel to be conveyed to compensate the
State or the Secretary, as applicable.
The BLM notes that the bill does not include any mechanism
for protesting or appealing land valuations by any party. The
BLM recommends that the Sponsor consider their intent to as to
how such protests or appeals would be addressed. In addition,
the BLM notes that it is typical for the party requesting the
purchase to cover the costs of conveyance outright and
recommends amending the provisions requiring adjustments to the
value of the Federal land to be conveyed to the State
accordingly.
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 S. 1088 as ordered
reported.